Secretary of Labor v. Eldean Gravel Company (ALJ decision, October 20, 1980)

Plain-English summary

A front-end loader operator died during work at Eldean Gravel's pit and mill, and MSHA sought a civil penalty. The parties proposed settling for $300, which was 60 percent of the initial assessment. Judge Joseph B. Kennedy found it uncertain whether the cited standard applied to the practice involved. He also found that the operator's actions were outside the work required by the employer and did not impute those actions to the company. He approved the settlement and ordered payment by October 30, 1980, with dismissal to follow payment.

Decision snapshot

• Cited standard: The decision does not identify the standard by number.
• Outcome: $300 settlement approved; case dismissed subject to payment.
• Key point: The judge approved a reduced settlement because the standard's application was uncertain and the employee's conduct was not attributed to the company.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ELDEAN GRAVEL
DDATE:
19801020
TTEXT:
~3039

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
Civil Penalty Proceeding
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. LAKE 80-279-M
PETITIONER
A.O. No. 33-01460-05002F

v. Eldean Pit and Mill

ELDEAN GRAVEL COMPANY,
RESPONDENT

DECISION AND ORDER

The parties move for approval of a settlement of this matter in the amount of $300, 60% of the amount initially assessed. Based on an independent evaluation and de novo review of the circumstances I conclude (1) that as a matter of law the violation charged is marginal in that it is not at all certain that the standard cited applies to the practice that resulted in the death of the front-end loader operator on October 15, 1979, (2) that assuming a violation occurred it was extremely serious in that a fatality resulted, and (3) that the death of the front-end loader operator was the result of his independent and inexplicably reckless disregard for safety while performing an operation not required by his employer. For these reasons, I conclude that despite the serious consequences of the front-end loader's grossly negligent conduct, that conduct is not rightly imputable to the operator.

Accordingly, it is ORDERED that the settlement proposed be, and hereby is, APPROVED. It is FURTHER ORDERED that the operator pay the penalty agreed upon, $300, on or before Friday, October 30, 1980, and that subject to payment the captioned matter be DISMISSED.

Joseph B. Kennedy
Administrative Law Judge