Secretary of Labor v. M-Class Mining, LLC

Plain-English summary

A maintenance foreman was hospitalized after receiving an electric shock while kneeling beside an open, energized continuous-miner control panel without protective gloves. An ALJ granted summary decision to M-Class Mining and vacated MSHA's section 75.1720(c) order, reasoning that the record did not prove the miner was performing work that might injure his hands. The Commission majority held that the judge improperly drew inferences for the operator and that unresolved facts about the miner's hand position, electrical source, proximity, and mine-specific conditions required a hearing. It rejected the Secretary's broader argument that gloves are required during every activity described as troubleshooting. The majority vacated and remanded; two commissioners would instead find the violation established and remand only for the remaining gravity, negligence, unwarrantable-failure, and penalty issues.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1720(c)
• Outcome: Summary decision for the operator was vacated and the case was remanded for further proceedings.
• Key point: Whether gloves are required turns on whether a reasonably prudent miner would recognize a hand-injury risk in the specific circumstances, not on the label “troubleshooting” alone.

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.

M-CLASS
MINING, LLC

:

:

:

:

:

:

:

Docket
No. LAKE 2012-519

BEFORE:  Rajkovich,
Chairman; Jordan, Young, Althen, and Traynor, Commissioners

DECISION

BY:  Rajkovich, Chairman; Young and
Althen, Commissioners

This proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act”). At issue is Order No. 8432253, issued to M-Class Mining, LLC
(“M-Class”) by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”).

The order alleges that a miner
failed to wear gloves while performing work on energized electrical equipment,
resulting in a violation of 30 C.F.R. § 75.1720(c). [1]
The alleged violation was designated as significant and substantial (“S&S”),
highly negligent, and a result of the operator’s unwarrantable failure to
comply with the safety standard. MSHA proposed a penalty of $41,500 for this
violation.

M-Class and the Secretary of
Labor each filed motions for summary decision regarding the validity of this
order. The Judge granted M-Class’s motion for summary decision, denied the
Secretary’s cross-motion for summary decision, and vacated the order. 39 FMSHRC
839, 849 (Apr. 2017) (ALJ). In doing so, the Judge drew an inference favorable
to the movant, M-Class.

Upon review, the Commission
vacates the Judge’s summary decision in favor of M-Class and remands the case
for further proceedings in accordance with this decision.         

I.                   

Factual Background

On May 23, 2011, Mark McCurdy, a maintenance
foreman and certified electrician, was working at M-Class’s #1 Mine, a large
underground coal mine in Macedonia, Illinois. During his shift, he tried to
determine why a continuous mining machine intermittently stopped functioning. 39
FMSHRC at 841. McCurdy checked the machine’s external radio circuits and
internal wiring. He also checked it for loose parts, the range of the remote,
and reviewed the machine’s computer log. Id. While making these checks, McCurdy
alternately turned the machine off and on several times.

After initially turning the machine off
and locking out its power center, he checked its remote and external radio
circuitry. He opened the cover of the control panel of the machine to check its
internal wiring. McCurdy then restored power to the machine and turned the
machine back on. After doing so, he operated the remote in order to bump the
head of the machine, i.e., shake the machine to cause a shutdown. McCurdy
reviewed the machine’s computer log for any record of malfunctioning
components. He did not wear gloves while operating the remote because he testified
that he thought that he might inadvertently press the wrong buttons on the
remote.

McCurdy then used the control breaker to
repeatedly reboot the machine. After rebooting, he again checked the computer
log for any changes as a result of the reboot. He turned the machine off, again,
and locked out the power center. After doing so, he rechecked the internal
wiring, which had remained uncovered since he first turned off the machine. He then
restored power to the machine and turned it back on, and again operated the
remote to bump the head of the machine. In addition, he checked whether the
limited range of the remote was causing the machine to intermittently stop
functioning. After that check, McCurdy left the immediate area of the machine
to talk with two other miners who were changing a tire on a shuttle car.  

When he returned, the internal wiring of
the machine remained exposed and energized since the last time he had examined
the machine. McCurdy did not put on the gloves that were lying on the machine. He
testified that he knelt down in front of it, and looked
at the electrical panel , trying
to decide what to do next. McCurdy Dep. at 19, 36. He testified, “ then next thing I
know I was beside the miner getting
shocked.” Dep. at 18. McCurdy stated
that he could not remember how his finger contacted a live wire.

The Judge found there
was
no evidence to contradict McCurdy’s recounting of the events, that McCurdy
was credible, and that the Secretary did not challenge McCurdy’s credible recounting
of the events. [2]  McCurdy was hospitalized for one
day as a result of the electric shock.

MSHA Inspector Robert Bretzman
subsequently investigated the accident. On May 24, 2011, MSHA issued Order No.
8432253 to the operator as a result of the accident. The order alleged a violation
of 30 C.F.R. § 75.1720(c). This standard requires miners to wear “[p]rotective
gloves when handling materials or performing work which might cause injury to
the hands” unless such gloves “would create a greater hazard by becoming
entangled in the moving parts of equipment.” The order alleged that McCurdy was troubleshooting the energized traction controller without
wearing gloves in violation of 30 C.F.R. § 75.1720(c). The order also asserted that
the action was aggravated conduct constituting an unwarrantable failure.

The Secretary and M-Class each moved the
Judge for summary decision relying upon deposition testimony. The Judge denied
the Secretary’s cross-motion for summary decision and granted summary decision
in favor of M-Class. The Judge found that the Secretary had failed to prove a
violation, i.e., he had not shown by a preponderance of the evidence that
McCurdy failed to wear gloves while performing work which might cause injury to
his hands. As a result, the Judge vacated the order. 39 FMSHRC at 848-49.

The deposition testimony discussed an “imaginary
line” that, when crossed, establishes a miner is “working” on energized
equipment. From the testimony and exhibits, it is clear this “imaginary line”
is a degree of proximity to a live wire, the crossing of which, according to
the Secretary, requires use of personal protective equipment such as gloves.

The Judge concluded that the facts were
undisputed and that the Secretary failed to carry his burden of proof. The core
of the Judge’s ruling was:

McCurdy’s
testimony indicates he was knowledgeable and
trained in proper procedures, such as
the convention against crossing the “imaginary line”
into an energized
electrical panel, and exhibited proper respect for them;
he was an
experienced electrician who would
not be expected to intentionally or needlessly expose
himself to potentially fatal
injuries by reaching into an
energized panel barehanded. I find the evidence insufficient for the Secretary to prevail on an argument that McCurdy
was tracing wires
or performing other work
that posed a risk of
injury to his hands at any one time
when he was not wearing gloves.

Id. at 848
(citations omitted). [3]

In addition, the Judge rejected the
Secretary’s interpretation of the standard “that gloves must be worn at all
times whenever a miner is troubleshooting.” Id . at 847. In doing so, the
Judge stated that such an interpretation was contrary to an exception allowing
miners to not wear gloves when doing so would pose a greater hazard.

II.                

Standard of
Review

The Commission reviews a summary
decision de novo. See Lakeview Rock Prods., Inc. 33 FMSHRC 2985,
2988 (Dec. 2011). When reviewing a record on summary decision, a Judge must
evaluate the evidence in the light most favorable to the non-moving party. Hanson
Aggregates New York, Inc. , 29 FMSHRC 4, 9 (Jan. 2007). Consequently,
“inferences to be drawn from the underlying facts contained in [the]
materials [supporting the motion] must be viewed in the light
most favorable to the party opposing the motion.” United States v.
Diebold, Inc. , 369 U.S. 654, 655 (1962); see also Poller v.
Columbia Broadcasting Sys., Inc. , 368 U.S. 464, 473 (1962). 

Summary
decision should not be granted “unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy and establishes
affirmatively that the adverse party cannot prevail under any circumstances.” KenAmerican
Res., Inc. , 38 FMSHRC 1943, 1947 (Aug. 2016) (internal quotations omitted).
Summary decision is appropriate only if there are no material facts in dispute
and the movant’s position is entitled to judgment as a matter of law. West
Alabama Sand & Gravel, Inc. , 37 FMSHRC 1884, 1886-87 (Sep. 2015). When
the record before the Judge contains disputed material facts, the proper
course of action is to vacate the grant of summary decision and remand the
matter for an evidentiary hearing. See Energy West Mining, Co ., 17
FMSHRC 1313, 1316-17 (Aug. 1995). Cross-motions for summary judgment must be
considered separately and on their own merits. Hanson , 29 FMSHRC at 10.

III.             

Disposition

The
Secretary presents three arguments on appeal. Two are disposed of easily. The
third requires remand.

A.
The Secretary Wrongly Argues that the Standard Requires the Wearing of Gloves
whenever a Miner is “Troubleshooting” an Electrical Problem. [4]

The
Secretary sweeps too broadly in contending that, with one limited exception,
all “troubleshooting” of electrical components requires a miner to wear gloves.
An initial and obvious deficiency is that the Secretary does not attempt to
define the nature of activities that constitute “troubleshooting.” Use of a
broad and completely undefined term to establish the parameters of a violation requiring
imposition of a civil penalty raises immediate and insuperable notice
difficulties. It is fair to state, for example, that the first step of
troubleshooting is thinking about the problem and ways in which one might solve
the problem. This could include looking at schematics and/or a host of other
activities at a distance from a machine that do not present any danger to a
person’s hands. It would be entirely unnecessary, if not impractical, to require
gloves under those circumstances. Certainly, that is not the aim of a standard
intended to protect miners from the danger of touching exposed live wires.

Separately,
although the facts of a given situation may cause application of the standard
to be a close case, the standard itself is quite clear. It requires the wearing
of gloves “when handling materials or performing work which might cause injury
to the hands.” Clearly, this standard may present disputed issues of whether a
miner is performing work fairly determined to be within the scope of the
standard. However, the standard provides clear notice to the regulated parties
and a standard against which to judge a Respondent’s actions. The Judge correctly
rejected the Secretary’s contention that section 75.509 in Volume 5 of MSHA’s
Program Policy Manual means that all troubleshooting requires use of gloves. [5] V MSHA, U.S.
Dep’t of Labor, Program Policy Manual Part 75, at 53 (Feb. 2003).

We
cannot vary from the plain words of the standard because parties may sometimes
disagree whether the work presented a danger of injury to the hands. Such
factual disputes are the gravamen of many Mine Act hearings. [6]

B. The Judge Impermissibly Drew an
Inference Favorable to the Movant in Granting Summary Decision.

The
Secretary contends that the Judge erred at the summary decision stage by making
an inference favorable to the Respondent—namely, that the Secretary could not
prove McCurdy was performing work that created a foreseeable risk of injury to
his hands. We agree.

Section
75.1720(c) is a broad standard. The Commission has consistently applied the
reasonably prudent person test to broadly-worded standards. See, e.g., U.S.
Steel Mining Co., 27
FMSHRC 435, 439 (May 2005). In  Sunbelt Rentals, Inc ., 38 FMSHRC
1619, 1626-27 (July 2016), the Commission stated that certain standards are
“drafted in general terms in order to be broadly adaptable to the varying
circumstances of a mine.” It ruled that such broadly-worded standards are
appropriate for application of the reasonably prudent person test.

Under
this test, an alleged violation is appropriately measured against whether a
reasonably prudent person, familiar with the factual circumstances surrounding
the allegedly hazardous condition, including any facts peculiar to the mining
industry, would recognize a hazard within the purview of the applicable
regulation. Spartan Mining Co., Inc. , 30 FMSHRC 699, 711 (Aug.
2008);  see also Asarco, Inc. , 14 FMSHRC 941, 948 (June 1992);  Alabama
By-Products Corp. , 4 FMSHRC 2128, 2129 (Dec. 1982). In this case, the miner
was a certified electrician. Consequently, the outcome-determinative issue is
whether a reasonably prudent certified electrician, familiar with the hazard,
should have recognized a risk of injury to his hands, thus requiring the use of
gloves.

The record before the
Judge did not present a sufficient basis for a final determination of this
issue. The Judge’s finding that the Secretary could not prove his case amounts to
an inference that, upon a hearing on a full record, the Secretary could not
prove a violation. The drawing of such an inference constituted error. There
remain disputed and/or unresolved facts and issues, the resolution of which
could be outcome-determinative. To be
clear, the issue is not the specific act McCurdy was doing when he was
shocked. It is not a matter of differentiating between whether he was thinking about
what to do next, versus whether he was inserting his hands into the equipment. The
miner need not be intentionally working on the equipment itself if the task he
is performing poses a risk of injury.

Inferentially, the Judge concluded that
the evidence did not prove McCurdy inserted his hand into the controller box to
trace wires, but only that he was kneeling before the controller box and
thinking about what to do next when an accident occurred. That is not the end
of the case if, under the specific circumstances at the site, a reasonable
certified electrician kneeling before the controller box would have put on
gloves to mitigate a risk of injury.

From the deposition testimony and
briefing of the parties, it appears that three interrelated facts bear on whether
McCurdy should have recognized a risk of injury to his hands requiring the
donning of gloves. These are: (1) the positioning of the miner’s hands, (2) the
electrical source of potential danger, and (3) the entire range of mine-specific
circumstances that might affect the risk of danger in light of the source of
danger and actions of the miner.

Without
doubt, an immediate question that arises in this case is the proximity of the
miner’s hands to the power source as he knelt before the controller box. The
regulation does not seek to prevent only intentional contacts with live wires
but also contacts that might result from an inadvertent movement. Therefore,
the miner must keep his hands at a distance from the power source sufficient to
mitigate the likelihood of touching an exposed wire. At the same time, this
does not mean that every accidental contact is a per se violation of the
standard. Again, the standard requires an examination of the actions of a miner
under the specific circumstances unique to the facts of the case. If, here, the
miner was acting reasonably, an inadvertent action would not give rise to a
violation.

This leads to a second
important consideration. In addition to the deposition testimony about an
imaginary line, the Secretary’s Petition for Discretionary Review refers to a
number of reports by safety agencies and institutions regarding the risk of
shock. These reports discuss and advise upon the distance at which a person
should put on personal protective equipment when approaching a live electric
power source. These include a manual published by the National Institute for
Occupational Safety and Health (“NIOSH”). NIOSH, Electrical Safety, Safety
and Health for Electrical Trades, Student Manual Revised Edition Pub. 2009-113 (April 2009), https://www.cdc.gov/niosh/docs/2009-113/pdfs/2009-113.pdf.
The publication discusses “approach boundaries” characterized as
a key to protecting oneself from electric shock. [7]

From these sources, it is clear even to
laymen that an important consideration of the danger to hands is the source of
the possible shock, including the voltage at such source. The strength of the
source of the danger is an element of the distances to which trained and
qualified persons may approach the electric source without personal protective
equipment.

Here, McCurdy testified that he was
kneeling in front of the controller thinking about what to do. Essentially,
therefore, McCurdy testified he was not working on the controller box but
simply thinking about what he would do next. However, that testimony does not provide
any information at all about the danger of electrical components in the control
box or the distance of his hands from the box as he, according to his
testimony, considered a next step. With McCurdy having testified to an absence
of memory, and two more years having passed, it may be unlikely that a hearing
will produce much more evidence on this subject. However, evidence, including
testimony about prior troubleshooting instances and/or about the strength and
danger of the electrical components in the box, may be helpful in deciding the
reasonableness of McCurdy’s decision not to don the gloves.

Finally,
other circumstances specific to the particular event may come into play.  As
noted, the Judge may seek testimonial evidence regarding McCurdy’s past
practice when troubleshooting energized electrical components, relevant
industry and his own practices regarding the use of protective gloves in close
proximity to energized electrical wiring of continuous mining machines, and ground
and lighting conditions at the time of the shock. For example, were the ground
conditions at the site stable, dry, wet, rough, or otherwise relevant to any
danger? Was the current on the machine direct or alternating? [8]
Could McCurdy’s hand have been attracted to the wire? [9]
Where in the controller box was the wire located that was touched by McCurdy? Was
it located in an area prone to incidental contact or does its position make an
inadvertent contact unlikely?

Although
there were cross-motions for summary decision, from the foregoing, it is clear
that summary decision was inappropriate.  The Judge inferred that McCurdy never
intentionally touched the energized wires barehanded, even though an
inspector’s notes suggested that McCurdy did so. 39 FMSHRC at 848; see also
Inspector Bretzman’s notes on May 23, 2011 at 16 (stating that McCurdy traced
energized wires immediately prior to the shock). Further, the Judge assumed
that McCurdy, as an experienced electrician, would never have exposed himself
to potentially fatal injuries by reaching into the energized panel barehanded. 39
FMSHRC at 848.

In short, on M-Class’ motion, the Judge
viewed critical evidence in the light most favorable to M-Class, the party that
moved for summary decision— not the Secretary . This was erroneous. The finding that
the Secretary did not present sufficient evidence to prevail, however, does not
mean that the Secretary could not prevail at a hearing where evidence is
presented on such matters, as discussed above.

IV.             

Conclusion

We hereby vacate
the Judge’s decision and remand this case for further proceedings in accordance
with this decision.

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chairman

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Commissioners
Jordan and Traynor, concurring in part and dissenting in part:

Although
we agree with our colleagues that the Judge erred in granting summary decision
to M-Class, we believe no remand is required regarding the issue of whether a
violation of 30 C.F.R. § 75.1720 occurred. On that question, we conclude that
summary decision for the Secretary is appropriate.  Remand is only necessary to
determine whether the citation was properly designated significant and
substantial and resulted from the operator’s unwarrantable failure, and to
determine the level of negligence and the amount of the penalty.

The cited standard requires miners to
wear protective gloves when handling materials or performing work which might
cause injury to the hands. [10]
Notably, the standard at issue does not require a likelihood of injury
to the hand–it only requires a possibility of injury to the hand. Here,
of course, there is no need to consider the possibility that McCurdy’s actions
might result in injury; it is undisputed that McCurdy’s hand was
injured. The relevant question is therefore would a reasonable miner have
foreseen that possibility of injury and therefore understood the corresponding
need to wear gloves?

McCurdy’s
injury occurred during his attempts to fix the continuous miner. After taking a
number of steps to figure out why the machine was intermittently losing power,
McCurdy left to check on two miners working on a shuttle car in the crosscut. When
he returned, he paused momentarily, kneeling in front of the energized
continuous miner and its open electrical panel. He was thinking about what to
do next, with his gloves sitting on top of the machine and his tools sitting on
the machine and in his bibs. Id. at 848. He testified that he was
“[l]ooking in the panel” and specified: “I was knelt down beside the miner . .
. . I remember kneeling down beside the panel.” McCurdy Dep. at 18-19.

McCurdy’s testimony as to what happened
immediately prior to his injury is very sparse. McCurdy states that the only
thing he recalls after kneeling down beside the panel is that he was “beside
the [machine] getting shocked.” McCurdy Dep. at 18. He had touched an energized
wire without wearing gloves, and could not pull his hand away. Two miners
pulled him out of the current. He was hospitalized overnight. 39 FMSHRC at 841.

The operator speculates that McCurdy
tripped or fell in the control panel when getting up from his kneeling
position. Resp’t’s Resp. in Opp. to PDR at 8. Even assuming this to be the
case, a miner who positions himself in such proximity to energized wires so
that a loss of balance could result in an inadvertent contact should have
foreseen the possibility of injury and the corresponding need to wear gloves.

This
is so because any miner knows that working on energized electric equipment is
the exception, not the rule, and as the Secretary notes, should be viewed as a
“situation of last resort.” S. Reply Br. at 5. Section 75.509 mandates that
electric equipment be de-energized before work is performed, except when
necessary for troubleshooting or testing. If this exception is invoked and the
machinery is not de-energized, section 75.1720 then requires that protective
gloves must be worn when performing work that might cause injury to the hands. [11] McCurdy
himself acknowledged, in an interview with an MSHA inspector at the hospital
after the accident, that he realized he should have left his gloves on. Inspector
Bretzman’s Declaration at 4.

Noting that the standard in
question requires gloves to be worn only when “ performing work that
might cause injury to the hands” (emphasis added), M-Class seeks to avoid
liability by contending that McCurdy’s action of pausing and kneeling by the
mining machine to consider what steps he needed to take to repair it cannot be
considered “performing work.” [12]
However, in light of the undisputed facts in this case, the only reasonable
inference that can be drawn is that McCurdy was performing work. I t appears that
our colleagues in the majority agree. Slip op. at 7. McCurdy was assigned a job–to
repair the continuous miner–and took a variety of steps to complete it. He was
engaged in an activity performed every day by miners–fixing machinery. His
painstaking efforts to discover why the continuous miner was broken show that
he was diligently trying to complete his assigned task.

When McCurdy
knelt by the machine and paused to consider what steps he needed to take to
repair it, he was still “performing work.” As he stated: [I was] [t]rying to go
through my head to figure out what else I could do to make this machine drop
out.” Dep. at 19. This type of intellectual deliberation occurring next to
energized equipment counts as work as much as any physical labor McCurdy
undertook in his attempt to repair the miner–in fact, it is an integral part of
the repair process. Moreover, rather than considering each of his actions
separately as he tried to figure out what was wrong with the continuous miner,
we must take into account the totality of his conduct leading up to the moment
he was shocked. Clearly, his numerous attempts to discover why the machine was
not properly operating–including his effort, just prior to being shocked, to
think through the process and figure out his next steps–constitute “performing
work.”

The Judge’s ruling that McCurdy
was not “performing work” was erroneous. She stated that:

I find that the
Secretary has failed to prove by a preponderance that McCurdy was engaging in
work at the moment the accident occurred. It was a completely inadvertent and
unforeseeable occurrence. I find, therefore, that the evidence is insufficient
for the Secretary to prevail on this argument.

. . .

[t]he
Secretary’s evidence is insufficient to establish exactly what [the miner] was
doing at the time he was shocked or to rule out the possibility that his
contact with the unidentified electrical component resulted from a loss of
balance, a fall, or some other inadvertent motion that led him to accidentally
contact the electrical panel. The regulation cannot have intended to punish him
for accidentally contacting a live wire when the Secretary cannot prove he was
taking the sort of foreseeable risk that would have obligated him to wear
gloves.

39
FMSHRC at 846-7.

In so holding, the Judge improperly inserted
an intent requirement into the Secretary’s burden of proof. [13] As previously discussed,
the Secretary did not need to prove that McCurdy deliberately touched the wire.
The health and safety standards promulgated under the Mine Act protect miners from
harm resulting from accidents and unintentional acts as well as from
intentional conduct that is unsafe. Consequently, inadvertent contact with an
energized panel is encompassed in the protection afforded by this safety
standard.

Despite the Judge’s errors, we fail to
see the need to remand this eight-year old case to the Judge for a hearing. The
majority states that there are disputed facts that must be resolved before one
can determine that a reasonably prudent miner would have worn gloves under the
circumstances presented here. We disagree.

Let us examine the three factual areas
that the majority suggests should be considered on remand:

First, our colleagues request
information on “the proximity of the miner’s hands to the power source as he
knelt before the controller box.” Slip op. at 7. As discussed above, it is
undisputed that McCurdy was kneeling by an energized panel on the continuous
miner, and this alone, in our view, places his hands in a location where they
might be injured (and thus gloves were required). Moreover, as a practical
matter, we are hard-pressed to see how this evidence would be obtained on
remand. As the majority recognizes, in his deposition (taken two and a half
years ago), McCurdy stated that he remembered kneeling down beside the panel
and looking at it. McCurdy Dep. at 19. When asked what happened next, he stated
that “[s]omehow I touched the 110 wire or touched an energized wire.” McCurdy Dep.
at 22. McCurdy testified that he had no explanation of how he went from
kneeling in front of the machine to being caught by the power. McCurdy Dep. at

36. The majority nonetheless remands to determine the distance of his hands
    from the box as McCurdy considered his next step. Slip op. at 8. Given that he
    was kneeling by the machine, we consider this specific inquiry immaterial–and
    we would be surprised if McCurdy (the only witness to the event, prior to his
    rescue by his fellow miners) would be able to supplement his deposition
    testimony with more elaborate detail as to where exactly his hands were
    positioned. In fact, our colleagues appear to share this concern. Id .

Second, our colleagues remand for a
determination of the electrical source of potential danger–that is, the danger
of the electrical components in the control box. Id . They state that
this evidence may be useful in deciding whether McCurdy was reasonable when he
failed to wear the protective gloves.

Again, we do not consider this a
material fact for the inquiry at hand. Here is what we already know: McCurdy
touched a wire and tried to pull his hand away. He “screamed” and “tried to
pull back.” Dep. at 22. Two hourly mine workers responded to his screams and
pulled him out of the electrical current. Inspector Bretzman’s Declaration at

2. Clearly, whatever the magnitude of the electrical components in the box,
   they were strong enough to shock McCurdy and send him to the hospital. No
   further evidence is needed–and we suspect none can be developed, given
   McCurdy’s hazy memory of this long-ago event.

In addition to these concerns, we would
be reluctant to remand this case for the remaining reasons set forth by the
majority–so that the Judge may examine “the entire range of mine-specific
circumstances that might affect the risk of danger in light of the source of
danger and actions of the miner.” Slip op. at 7. The majority fails to explain
why, given the fact that McCurdy received a severe shock, the Judge on remand
should examine ground conditions at the site, the type of current on the
machine, and the exact location of the wire that McCurdy touched. Given what we
already know, this appears to be extraneous evidence that probably will be
difficult, if not impossible to obtain. Indeed, in terms of pinpointing the
location of the wire, the inspector’s notes indicate that McCurdy told him that
he did “not remember what he touched, everything is a blur. . . . McCurdy was
not able to provide evidence to conclude what he touched in [the] panel.” Inspector
Bretzman’s notes on May 23, 2011 at 16-17.

In conclusion, in light of the
undisputed facts, and as a matter of law, M-Class violated section 75.1720. Thus
summary decision for the Secretary is appropriate. The Judge’s ruling should be
reversed, summary decision granted for the Secretary, and the case remanded for
a determination regarding whether the violation was “significant and
substantial,” the level of negligence, unwarrantable failure, and the penalty.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner          

/s/ Arthur R. Traynor, III

Arthur R.
Traynor, III, Commissioner

[1] Section 75.1720(c) requires a miner to wear “ [p]rotective gloves when handling materials or performing
work which might cause injury to the hands; however, gloves shall not be worn
where they would create a greater hazard by becoming entangled in the moving
parts of equipment.” 30 C.F.R. § 75.1720(c).

[2] During MSHA Inspector Robert Bretzman’s deposition, however,
he differentiated between troubleshooting and performing electrical work within
the controller box. He testified that he believed that McCurdy inserted his
hand into the controller box and, at that point, he was no longer
troubleshooting, but instead, was performing work within the box. Bretzman Dep.
at 65-68.

[3] The Judge also
found that:

[T]he Secretary’s evidence is insufficient
to . . . rule out the possibility that [McCurdy’s] contact with
the unidentified electrical component resulted from a loss of balance, a fall, or
some other inadvertent motion
that led him to
accidentally contact the electrical
panel. The regulation cannot have intended to punish him for accidentally contacting a live wire when
the Secretary cannot prove he was taking the sort of foreseeable risk
that would have obligated
him to wear gloves.

39 FMSHRC at 847.

[4] As a second
argument, the Secretary contends that the Judge
misinterpreted the standard because the Judge read an exception into the
standard that the standard does not contain. The Judge’s
observation regarding the removal of gloves to facilitate handling of the
remote was only for rejecting a contention that the nature of troubleshooting
could be determined on the basis of whether the miner was or was not wearing
gloves. 39 FMSHRC at 847. The Judge’s reference to the exception did not read
an additional exception into the standard. It merely directed attention to the
fact that the focus of the standard is on whether the miner’s actions create a
danger of injury to his hands.

[5] As noted above, Inspector Bretzman differentiated
between troubleshooting and performing electrical work within the controller
box. Bretzman Dep. at 20. Bretzman’s belief was that McCurdy inserted his hand
into the controller box and, at that point, he was no longer troubleshooting
but performing work within the box. Apparently, MSHA’s position before the
Commission is that a miner must always wear gloves during “troubleshooting”
even if that person is just thinking about the problem or not close to the
electrical source. This makes no practical sense. Our dissenting colleagues
apparently draw the same illogical conclusion in asserting “[t]his type of
intellectual deliberation occurring next to energized equipment counts as work
as much as any physical labor McCurdy undertook in his attempt to repair the
miner–in fact, it is an integral part of the repair process.” Slip op. at 2. On
summary judgment, the record was devoid of evidence to support our colleagues’
conclusory inference that the intellectual deliberations, in this case,
constituted not merely “work” but “work which might cause injury to the hands.”
Indeed, the purpose of remand is to allow presentation of evidence on this
outcome-determinative point. We simply do not give either party the benefit of
a conclusory inference.

[6] Excising one
sentence from the Judge’s decision, our colleagues suggest that the gravamen of
the Judge’s decision was a finding that McCurdy was not “performing work.” Slip
op. at 2. That is incorrect. The Judge found that the Secretary did not prove
by a preponderance of the evidence that McCurdy was engaged in work that might
cause injury to his hands. The Judge held “ [t]he regulation cannot have intended to
punish him for accidentally contacting a live wire when the Secretary cannot
prove he was taking the sort of foreseeable risk that would ha ve obligated him
to wear gloves.” 39 FMSHRC at 847. Thus, rather
than inserting an “intent” requirement into the regulation, the Judge applied
the burden of proof standard to the Secretary’s obligation to prove McCurdy was
engaged in work “ which might cause injury to the
hands . . . .” 30 C.F.R. § 75.1720(c). Similarly, the operator did not rely
upon an absence of any work but rather absence of proof that the miner’s
specific activity might cause injury to his hand. Resp’t’s Resp. in
Opp. to PDR at 5, 8-9.

[7] The NIOSH
manual states that the boundaries are drawn from the National Fire Protection
Association’s NFPA 70E. NFPA, Standard for Electrical Safety in the
Workplace , 70E (2018 Ed.). That publication defines a “limited approach
boundary” as “[a]n approach limit at a distance from an exposed energized
electrical conductor or circuit part within which a shock hazard exists.” Id .
at 70E-10. In turn, “a restricted approach boundary” is “[a]n approach limit at
a distance from an exposed energized electrical conductor or circuit part
within which there is an increased likelihood of electric shock, due to
electrical arc-over combined with inadvertent movement.” Id . The “prohibited approach boundary” is the dis­ tance you must stay from exposed live parts to prevent flashover or arcing in air. We do not delve into the specific
of these texts. It is sufficient to note that such manuals contain discussions
of the location of a qualified person’s hand vis-à-vis the need for personal
protective equipment in light of the source of a potential shock. They may provide
a basis for expert testimony or analysis.

[8] Inspector Robert Bretzman testified in his deposition
that he was trying to determine whether McCurdy “was into something other than
the 110.” Bretzman Dep. at 64.

[9] Inspector Bretzman testified that he was concerned
“because [McCurdy] was locked into the power and it was not—it’s not my
experience that 110 will lock you in that hard to where you can’t get out.” Id.
at 63.

[10] The standard
states in relevant part:

[E]ach miner regularly employed in the active workings
of an underground coal mine shall be required to wear the following protective
clothing and devices:

. .
.

(c) Protective gloves when handling materials or
performing work which might cause injury to the hands; however, gloves shall
not be worn where they would create a greater hazard by becoming entangled in
the moving parts of equipment.

30 C.F.R. § 75.1720.

[11] The Commission has acknowledged the importance of
wearing protective gloves. In a case involving a violation of 30 C.F.R. §
75.509 (requiring that equipment be de-energized before work is done, except
when necessary for troubleshooting or testing), we noted that although the
miner wore gloves in performing repairs, when he used his bare hand to lift
stray wires inside an energized electrical panel and out of the way, he “made a
serious error in taking the gloves off prematurely.” American Coal Co. ,
39 FMSHRC 8, 14 (Jan. 2017).

[12] The operator claims that there is no violation of
section 75.1720(c) if a miner accidentally falls into an energized control
panel without wearing gloves, because “[t]hat is an accident, not ‘handling
materials or performing work.’” Resp’t’s Resp. in Opp. to PDR at 9.

[13] We would submit that nobody intends to touch an
energized wire.