Secretary of Labor v. Conmat, Inc.

Plain-English summary

A competent trainer at Conmat task-trained a miner and signed the form's certification line, but he was not one of the people designated in the mine's approved Part 46 plan as responsible for health and safety training. Conmat argued that it had up to 12 months to obtain a proper certification and that the citation was premature. Judge Margaret A. Miller held that the signature immediately certified the record, and that the 12-month rule sets the maximum interval for certification rather than a grace period after an improper signature. She found a strict-liability paperwork violation but accepted that it was a good-faith mistake with no injury likelihood and low negligence. The citation and $100 penalty were affirmed on summary decision.

Decision snapshot

• Cited standard: 30 C.F.R. § 46.9(b)(5)
• Outcome: Citation No. 8741693 was affirmed as issued, with a $100 penalty.
• Key point: Signing the certification statement has immediate legal effect, and only a person designated in the approved training plan may do so.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

721
19th STREET, SUITE 443

DENVER,
CO 80202-2500

303-844-5266/FAX
303-844-5268

May
14, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION, (MSHA),

Petitioner,

v.

CONMAT, INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2014-9-M

A.C. No. 11-00012-332726

Mine: Spread 4

ORDER DENYING CONMAT’S
MOTION FOR SUMMARY DECISION &

ORDER GRANTING
SECRETARY’S MOTION FOR SUMMARY DECISION

This case is before me on a petition
for assessment of civil penalty filed by the Secretary of Labor pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (the “Act”). The case involves one 104(a) citation issued to Conmat,
Inc. on February 23, 2011.

On March 13, 2014 the parties
participated in a conference call with the undersigned.[1]
The parties represented to the court that a dispute of fact did not exist, and
that the case rested on an interpretation of law. To that end, the parties
agreed that the issue could be decided on cross motions for summary decision. On
March 28, 2014 Conmat filed its Motion for Summary Decision (“Conmat Mot.”) and
Memorandum in Support (“Conmat Memo”) pursuant to Commission Procedural Rule
67, 29 C.F.R. § 2700.67. The Secretary filed his Motion for Summary Decision (“Sec’y
Mot.”) on April 11, 2014. For reasons set forth below, Conmat’s Motion for
Summary Decision is DENIED, and the Secretary’s Motion for Summary
Decision is GRANTED.

I.  BACKGROUND AND
STATEMENT OF UNDISPUTED MATERIAL FACTS

On June 3, 2013 Gordie Pearce task
trained a miner on two pieces of equipment at Respondent’s mine. Pearce noted
the trainings on a task training form, then signed and dated the form on the
line reserved for the “[s]ignature of person responsible for health and safety
training[,]” which was located immediately below a statement which read: “I
certify that the

above training has been completed[.]” Jt. Ex. 1. [2]
While Gordie Pearce was competent to perform the task training, he was not
designated in the mine’s Part 46 MSHA-approved training plan as an individual responsible
for health and safety training.

On June 25, 2013, Inspector Eric W.
Crum with the Department of Labor’s Mine Safety and Health Administration
issued Citation No. 8741693 under section 104(a) of the Act for an alleged
violation of 30 C.F.R. § 46.9(b)(5). The citation alleges the following:

The task training
form for one new miner was not signed by a person designated as responsible for
the health and safety of the miners in the mine[’]s part 46 training plan. The
task training was signed by Gordie Pearce but the three people designated in
the plan [as responsible for health and safety training] did not include Gordie
Pearce.

Inspector Crum determined that this
violation had no likelihood of contributing to injury or illness of a miner,
and that, should an injury occur, it could reasonably be expected to result in
no lost workdays. He determined that the violation was not significant and
substantial (“S&S”), that no persons were affected, and that the violation
was a result of low negligence on the part of the operator. The Secretary
proposed a penalty of $100.00 for this citation.

II.  BRIEF SUMMARY
OF THE PARTIES’ ARGUMENTS

a.                  
Conmat’s Argument

Conmat argues that it is entitled
to summary decision as a matter of law, and that Citation No. 8741693 should be
vacated. The regulations require that task training need only be certified by a
designated person once every twelve months. Twelve months had not elapsed since
the task training occurred and, therefore, the citation was prematurely issued.
Call Tr. 2.

According to Conmat, the task
training for the new miner was “in progress.” Id. at 3. Conmat therefore
argues that it should have twelve months to certify that the training had been
completed. Id. Task training is “not a one-shot deal;” Conmat envisions
training a miner “one day on three or four things and then a week later you can
be task trained on some more.” Id. at 5. The twelve-month certification
timeline is consistent with this reality. “[T]hat’s why there’s 20 spots on
[the task training worksheet] to fill in all the task training.” Id.

Conmat contends that its interpretation of the standard
is justified by MSHA’s Program Policy Manual. The manual states that “[a]
‘record’ of task training must be made at the completion of new task training. New
task training records must be ‘certified’ at least once every 12 months, or
upon request by the miner.” Conmat Memo Ex. RX-11. The Compliance Guideline for
MSHA’s Part 46 Training Regulations includes identical language, written in
response to the question “Does task training have to be recorded and certified
each time you train an employee in a specific task?” Id. at Ex. RX-6.

According to this interpretation, “recording”
and “certifying” each miner’s training is intended to be a two part process
involving separate and distinct responsibilities. Conmat Memo 6. Part one
requires operators to record the training, by written record, on a form
of the operator’s choosing. Id. Part two requires operators to certify
the training, at least once every twelve months. Id. Conmat argues
that it did not violate section 46.9(b)(5) by failing to certify the training
because the certification need only be made within one year of the training. 30
C.F.R. § 46.9(d)(3). The citation was issued twenty-two days after the safety
training was recorded, and long before the expiration of the twelve month
period during which the operator had to certify the record.

b.         Secretary’s Argument

The Secretary argues that there are no genuine
issues as to any material fact and that the citation should be affirmed because
the individual who certified the record was not listed in the mine’s training
plan. The plain language of section 46.9(b)(5) requires an individual who certifies
a miner’s training form to be “designated in the MSHA-approved training plan
for the mine as responsible for health and safety training.”  Sec’y Mot. 6-7.
Gordie Pearce, who is not listed in the mine’s approved training plan as someone
who is “responsible for health and safety training,” signed the miner’s
training form in the space clearly reserved for the signature of the individual
who certifies the training. Id. at 4. Pearce’s signature constituted an
improper certification of the miner’s task training form and, accordingly, a
violation of section 46.9(b)(5). Id. at 4-5.

Even if the plain language of the standard is
ambiguous, deference should be afforded the Secretary’s reasonable interpretation
that Pearce’s signature constituted a violation of section 46.9(b)(5). Id.
at 7-8. If Conmat’s argument were accepted, i.e., that a violation is premature
until the expiration of the twelve month window, then the signing of the form
would have no effect until the twelve month period expired. Id. While
mine operators do have twelve months to certify task training, certification
can occur prior to the expiration of the twelve month period. Id. at
5-6. The twelve month period set forth in section 46.9(d)(3) is the maximum
time allowed before certification of task training is required. Id. at

6. Here, Pearce certified the miner’s training form, albeit improperly, the
   same day the training occurred.  MSHA inspectors cannot be expected to decipher
   whether the individual who signed the signature line to certify a record
   intended to certify the record. Id. at 5. Given Congress’ “deep concern
   over the problem of poorly trained miners,” mine operators’ responsibility to
   conduct training and maintain proper records, and MSHA’s reasonable expectation
   that the records and certificates presented to its inspectors will be correct, deference
   should be afforded the Secretary’s interpretation. Id. at 7-9.

III.  DISCUSSION

Commission Procedural Rule 67 sets forth the
grounds for granting summary decision as follows:

A motion for
summary decision shall be granted only if the entire record, including the
pleadings, depositions, answer to interrogatories, admissions, and affidavits,
shows:

(1)        That
there is no genuine issue as to any material fact; and

(2)        That the
moving party is entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67.

The parties agree that there are no
genuine issues as to any material fact and that this matter should be decided
based on the information presently before the court. This case presents
questions of regulatory interpretation regarding section 46.9 of the
Secretary’s regulations, which is titled “Records of training.” While Conmat
argues that the training form was only a “record” of training, and that the
citation was issued prematurely, the Secretary asserts that the form was
“certified,” albeit improperly, and that a violation existed.  For reasons that
follow, I agree with the Secretary and find that Pearce’s signature constituted
an improper certification of the miner’s task training in violation of section
46.9(b)(5).

The Commission has explained that,
with regard to regulatory interpretation, “‘the language of a regulation … is
the starting point for its interpretation.’” Mach Mining, LLC, 34 FMSHRC
1769, 1773 (Aug. 2012) (quoting Dyer v. United States, 832 F.2d 1062,
1066 (9th Cir. 1987)). Further, “[w]here the language of a regulatory provision
is clear, the terms of that provision must be enforced as they are written
unless the regulator clearly intended the words to have a different meaning or
unless such a meaning would lead to absurd results.” Id. (citing Utah
Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989) and Consolidation
Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993)).

The citation in this case was
issued for an alleged violation of section 46.9(b)(5) of the Secretary’s
regulations, which requires that safety training forms include “[a] statement
signed by the person designated in the MSHA-approved training plan for the mine
as responsible for health and safety training, that states ‘I certify that the
above training has been completed.’” 30 C.F.R. § 46.9(b)(5).

The plain language of section
46.9(b)(5) clearly states that only individuals designated in the mine’s
approved training plan may certify a miner’s completion of training by signing
a statement that reads “I certify that the above training has been completed.”  This
much does not seem to be in dispute. However, the parties are at odds over whether
the particular training form presented to the inspector had been certified.

I agree with Conmat that the
regulations and MSHA guidance materials differentiate the creation of a “record”
of training from the “certification” of the record of training. Section 46.9(c)
requires that a “record” of training be created “[u]pon completion of new task
training[.]” 30 C.F.R. § 46.9(c). The record must include the name of the miner
being trained, the type of training, the duration of training, the date of
training, the name of the trainer, the name of the mine or independent
contractor, the MSHA mine identification number, the location of the training,
and a statement regarding false certification of the record. 30 C.F.R. §§
46.9(b)(1)-(4). Proper “certification” of the training occurs when a statement
reading, “I certify that the above training has been completed” is signed by an
individual designated to do so in the mine’s MSHA-approved training plan. 30
C.F.R. § 46.9(b)(5).

The Secretary’s regulations do not
specify a particular form that must be used to record and certify training and,
rather, only require that, in creating the record and certification, certain
specific information is provided on the document. 30 C.F.R. §§ 46.9(a) and (b).
Given the flexibility afforded mine operators as to how to record and certify
training, it is certainly reasonable to expect operators to familiarize themselves
with the form they choose to use.  Respondent chose to use the form depicted in
Jt. Ex. 1. [3] There is no
evidence in the record that MSHA required the use of this form, or that
Respondent was unfamiliar or confused by the form.

The form, in its blank state,
provides input space for all of the information required by 30 C.F.R. §§ 46.9(b)(1)-(3).
Further, it includes the required statement regarding false certification
required by 30 C.F.R. § 46.9(b)(4). Finally, and as particularly relevant to
this analysis, the form includes a statement which reads “I certify that the
above training has been completed,” followed by a signature line for the “[s]ignature
of the person responsible for health and safety[.]” The statement and signature
line are clearly intended to satisfy the requirements of 30 C.F.R. § 46.9(b)(5),
which outlines what is necessary to properly certify a miner’s training record.

It appears that Pearce correctly
provided the information required by sections 46.9(b)(1) through (b)(3). See
Jt. Ex. 1. I agree with Conmat that this information, along with the statement
regarding false certification, created a “record” of training. However, I
disagree with Conmat that the record of training was not “certified.”

Pearce’s signature constituted an
improper certification of the miner’s training record. While Respondent argues
that Pearce’s signature and date below the statement that “I certify that the
above training has been completed,” on a signature line for the “[s]ignature of
the person responsible for health and safety[,]” is without effect and does not
amount to a “certification” of the record, I find to the contrary. I agree with
the Secretary that, absent the signature, a violation would not have existed. The
statement and signature line for the designated individual have little meaning
when a signature is not present. Contrarily, the statement and signature
line, which is explicitly reserved for a designated individual, must have
meaning when a signature is present. Pearce’s signature was a representation,
or in this case a misrepresentation, that he “certified that the . . . training
had been completed” and was “the person [designated in the mine’s approved
training plan as] responsible for health and safety.”

I agree with the Secretary that MSHA
inspectors cannot be expected to deduce the intent of an individual who signs a
training form in an area which is clearly intended to be signed by the
individual certifying the training. Moreover, given the strict liability imposed
by the Mine Act, neither the inspector nor the court need reach the issue of
whether Pearce intended, or meant, to certify the form. However, based upon the
record evidence before me, and my conversations with the parties, I do not
believe that the signature was an overt attempt by Pearce or the Respondent to
avoid compliance.[4]
Rather, I am inclined to believe that Respondent had a good faith belief that
it was complying with the regulations. After all, the parties agree that this
was simply a paperwork violation, from which no apparent benefit could be
derived by the operator for violation of the standard. While the violation can
seemingly be chalked up to simple mistake on the part of Respondent, the fact
remains that the purpose of the statement and signature line is to certify the training.
To find otherwise would fly in the face of the plain language of both the cited
standard and the form chosen by the operator. Accordingly, I find that Pearce’s
signature amounted to an improper certification of the training form in violation
of section 49.6(b)(5).  

The Respondent argues that the
citation was prematurely issued given that the Secretary’s regulations afford twelve
months for the designated person to certify the training. The Respondent relies
upon section 46.9(d)(3), which states that the operator “must ensure that all
records of training . . . are certified under paragraph (b)(5) of this section
and a copy provided to the miner . . . [a]t least once every 12 months for new
task training, or upon request by the miner, if applicable[.]” 30 C.F.R. §
46.9(d)(3). Respondent avers that, given twelve months had not elapsed since
the time of training, time remained for one of the three individuals designated
in the approved training plan to correctly certify the training. I find no
merit to this argument.

The regulation is clear and requires
that a record of training be certified “at least once every 12 months
for new task training.” (emphasis added). I have already found that the task
training form was certified, albeit by a person not qualified to do so. The
standard requirement for certification “at least once every 12 months” is a
baseline/minimum for certification of task training. While operators need only
certify the training once every twelve months, they are free to, and for that
matter probably encouraged to, do so more often. Here, Gordie Pearce improperly
certified the training form the same day the task training occurred. Pearce’s
improper certification, which was presented to the inspector by the miner who
had been trained by Pearce, amounted to a violation at the time the inspector
issued the citation. Given this finding, I need not speculate on the issue of
whether a subsequent signature and certification by one of the individuals
designated in the approved plan would have avoided a violation had the
appropriate person signed the form at a time prior to the inspector viewing the
form.

Consistent with my above analysis,
I find that the text of the regulation is clear and that the terms of the
relevant provisions, when applied to the facts of this case, require that the fact
of violation be upheld.[5]
In addition, I affirm the Secretary’s findings regarding gravity, all of which
are already at the minimum, as well as his negligence finding. While Conmat asserts
that it was not negligent, Conmat Memo 2, its argument is based entirely on its
assertion that there was no violation. Given that I have already found a
violation, and based upon my review of the information before me, I affirm the
Secretary’s “low” negligence designation.

IV.  ORDER

Conmat’s Motion for Summary Decision is DENIED.
The Secretary’s Motion for Summary Decision is GRANTED. Citation No.
8741693 is AFFIRMED as issued. Conmat is ORDERED TO PAY the
Secretary of Labor $100.00 within 30 days of the date of this order.

/s/
Margaret A. Miller   

Margaret
A. Miller

Administrative
Law Judge

Distribution:

Dan Venier, CLR, U.S. Department of Labor, MSHA, 515 West 1st
Street, Suite 228, Duluth, MN 55802

Shawn Meier, Conmat Inc., 2283 US 20 BR E, Freeport, IL
61032

[1] During the call
the court informed the parties that it would obtain a transcript of the call. The
transcript was received by the court on March 18, 2014. For purposes of this
order the transcript is cited as “Call Tr.”

[2] Conmat included
pictures of the task training form in its motion, however, the form was
unreadable due to the poor quality of the printed pictures. On May 5, 2015, the
Secretary, after conferring with Respondent, emailed digital pictures of the training
form to the court. This document has been marked Jt. Ex. 1. A printed version
of the exhibit has been included in the file.

[3] Respondent
makes passing reference to the training form being in the private possession of
the miner at the time the inspector observed it, and not in the possession of
an agent of the mine. While Respondent asserts that the form was “not purported
to be certified by CONMAT” it acknowledges that the form “was in fact a
record[.]” Conmat Memo 6. While Conmat does not explicitly argue that a
difference exists between records in the possession of an agent of the mine and
those in the private possession of its employees, given its acknowledgement
that the form was, at a minimum, a “record,” I need not address the issue.

[4] The Secretary
has made no allegation that Pearce’s action rose to the level of a “false
certification” contemplated by 30 C.F.R. § 46.9(b)(4).

[5] In the unlikely
event that some ambiguity could be read into the pertinent language of section
46.9, I would find that the Secretary’s interpretation is entirely reasonable
and logically consistent with both the language of the text and intent of the
standard. Alcoa Alumina & Chemicals, 23 FMSHRC 911, 913-914 (Sep.
2001).