Wilmot Mining Company

Plain-English summary

Wilmot Mining operated a surface coal mine where a front-end loader overturned and killed superintendent John Schrock. The Commission held that the Secretary did not prove the annual refresher-training violation because the record did not establish the employees' training histories or whether refresher training was due during the cited period. It therefore vacated that violation and its penalty. The Commission affirmed the ROPS violation and the inadequate-brakes violation, finding the operator responsible for the relevant negligence, and left those penalties undisturbed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 48.28(a), 77.403a(a), and 77.1605(b)
• Outcome: The annual refresher-training violation and penalty were vacated. The ROPS and inadequate-brakes violations and penalties were affirmed.
• Key point: The Secretary must prove that identified miners were covered by the annual refresher-training requirement during the cited period, while supervisory negligence may support operator liability for equipment violations.

Full text (FMSHRC public release)

CCASE:
MSHA V. WILMOT MINING
DDATE:
19870430
TTEXT:

                                     FMSHRC-WDC
                                      April 30, 1987

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

  v.               Docket No. LAKE 85-47

WILMOT MINING COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

               DECISION

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982),
the following issues are presented on review: (1) whether the
Commission administrative law judge below abused his discretion
in rejecting a proposed settlement between the parties; (2) whether
the cited operator, Wilmot Mining Company ("Wilmot"), violated 30
C.F.R. $ 48.28(a), a miner training regulation; (3) whether Wilmot
was negligent in connection with the use of a frontend loader
without a rollover protective structure ("ROPS"); and (4) whether
Wilmot violated 30 C.F.R. $ 77.1605(b) by failing to equip a front-end
loader with adequate brakes and, if so, whether Wilmot was negligent
in connection with that violation. For the reasons that follow, we
reverse the judge's conclusion that a violation of 30 C.F.R.
$ 48.28(a) was established, but otherwise affirm the judge's decision.

 At about 2:00 p.m. on May 25 1984, John Schrock, Stripping

Superintendent in charge of Wilmot's North Mine, a surface coal
mine located in Navarre, Ohio, was leaving the 001-0 pit driving a
Terex 72-41 front-end loader ("Terex"). As Schrock was exiting the
pit, he stopped about 100 feet from the bottom and backed down the
road to make room for a descending coal truck. Schrock's Terex began

Page 2

to roll backwards, went off the road, struck the face of the highwall
and rolled over. The cab was crushed and Schrock was killed.

Not long before the accident, Harold Bain, Wilmot's General

Manager, observed Schrock with the Terex planting trees near the
road leading into the pit area. Bain gave Schrock paychecks to
deliver to the miners working in the pit. Just before the accident,
Schrock drove

Page 3

~685
the Terex to the equipment parking lot near the pit entrance and
told a mechanic that he had "lost" his brakes. Before the mechanic
could inspect the brakes, however, Schrock drove the Terex into the
pit area where the fatal accident occurred.

 An inspector of the Department of Labor s Mine Safety and

Health Administration ("MSHA") investigated the accident. He found
that the Terex did not have a ROPS and cited Wilmot for a violation
of 30 C.F.R. $ 77.403a(a), a mandatory safety standard requiring
loaders and certain other specified types of heavy mobile equipment to
"be provided with ... ROPS." The inspector also checked the Terex's
brake system after the Terex was removed from the pit. The inspector
found that the brake lines and cylinders were intact but that the
brake fluid was low. When the brakes were tested on level ground,
at a "reasonably slow speed," the Terex took 36 feet to stop. The
inspector opined that the Terex's normal stopping distance in such a
test should have been five to ten feet. Consequently, he cited Wilmot
for a violation of 30 C.F.R. $ 77.1605(b), a mandatory safety standard
requiring mobile equipment to be "equipped with adequate brakes."

 The inspector also reviewed Wilmot s training records and his

review indicated that the last training at the mine had been given in
1980 and that Wilmot had provided no annual refresher training in 1982
or 1983. 30 C.F.R. $ 48.28(a) provides: "Each miner shall receive a
minimum of 8 hours of annual refresher training as prescribed in this
section." The inspector cited Wilmot for violating section 48.28(a) by
failing to provide eight hours of annual refresher training in 1982 or
1983 to the fourteen miners employed at the mine at the time of
citation.

 Commission Judge William Fauver scheduled a hearing in this

proceeding for August 20, 1985, and directed the parties to explore
settlement. On August 15, 1985, the Secretary of Labor requested
the judge to approve a proposed settlement including stipulated civil
penalties totalling $2,300. The judge continued the hearing until
August 27, 1985, and the hearing went forward on that date. The judge
issued no order stating that settlement was rejected and provided no
notation or explanation on the record addressing the proposed
settlement.

In his decision, the judge concluded that the Secretary had

established a prima facie case of a violation of the annual refresher
training regulation. 8 FMSHRC 509, 512-13 (April 1986)(ALJ). The
judge stated: "The Secretary ... show[ed] that 14 miners were
employed at the time of the inspection [in May 1984], that the mine

Page 4

was a going concern in 1982 and 1983, and that no refresher training
was conducted for any miner in 1982 or 1983." 8 FMSHRC at 512. In
sustaining the ROPS citation, the judge found that Schrock operated
the Terex front-end loader without a ROPS and that, consequently,
the standard was violated. 8 FMSHRC at 513. In assessing a civil
penalty, the judge determined that Wilmot was grossly negligent in
allowing Schrock to operate the Terex in the pit. The judge concluded
that Bain knew that Schrock was operating the Terex without the ROPS
when he gave Schrock the paychecks and that Bain knew or should have
known that Schrock would drive the

Page 5

~686
Terex into the pit to deliver the paychecks. 8 FMSHRC at 510, 514.
ln addition, the judge found Schrock grossly negligent in driving the
Terex into the pit and imputed that negligence to Wilmot. 8 FMSHRC
at 514. The judge also sustained the brake citation finding that the
brakes were defective. Underlying this conclusion were the judge's
findings that the cylinders were very low in brake fluid and that when
the Terex was tested on level ground it took 36 feet to stop and that
on a steep road such as the pit road the loader "would have virtually
no brakes at all." 8 FMSHRC at 515. In assessing a civil penalty, the
judge emphasized that Schrock's conduct in driving with brakes known
to be defective was gross negligence, which was imputed to Wilmot.
8 FMSHRC at 515. The judge assessed civil penalties totalling $7,500
for the three violations.

 Wilmot argues as a threshold issue that the judge, without

explanation, improperly rejected the settlement agreement.
Settlement of contested issues and Commission oversight of that
process are integral parts of dispute resolution under the Mine Act.
30 U.S.C. $ 820(k); see Pontiki Coal Corp., 8 FMSHRC 668, 674 (May
1986). The Commission has held repeatedly that if a judge disagrees
with a penalty proposed in a settlement he is free to reject the
settlement and direct the matter for hearing. See. e.g., Knox
County Stone Co., 3 FMSHRC 2478, 2480-81 (November 1981). A judge's
oversight of the settlement process "is an adjudicative function that
necessarily involves wide discretion." Knox County, 3 FMSHRC at 2479.

 On the present record, we cannot conclude that the judge

committed error. Wilmot apparently never objected to the judge's
procedure in going forward with the hearing. It did not object at the
hearing or argue this point to him in its post-hearing brief. Failure
to object in a timely manner to an alleged procedural error ordinarily
waives the right to complain of the error on appeal, and the Mine Act
prohibits, except for good cause shown, the raising of matters not
first presented to the judge. 30 U.S.C. $ 823(d)(2)(iii); 29 C.F.R.
$ 2700.70(d). Wilmot has not shown good cause for its failure to
raise this objection before the judge and consequently we cannot
consider it. 1/

With respect to the alleged violation of section 48.28(a),

Wilmot argues that the Secretary failed to show that any of the
fourteen employees at issue were miners who required annual refresher
training during 1982 and 1983 and did not receive it. We agree.

The requirement for miner annual refresher training is contained

in section 115(a)(3) of the Mine Act, 30 U.S.C. $ 825(a)(3), and is

Page 6

implemented by the Secretary's training regulations at 30 C.F.R.
Part 48. The requirement for annual refresher training means that an
operator must provide each covered miner in its employ with refresher

1/ In general, however, we believe that better practice requires that
if a judge rejects a written settlement proposal he issue an order to
that effect. Specifying the reasons for the rejection might sharpen
the issues for trial and even possibly encourage an acceptable
settlement proposal.

Page 7

~687
training within twelve months of his last training. Emery Mining
Corp., 5 FMSHRC 1400, 1401-03 (August 1983), aff'd, 744 F.2d 1411
(lOth Cir. 1984)(construing section 115(a)(3) of the Mine Act and
30 C.F.R. $ 48.8(a), a regulation identical to section 48.28(a)
providing for refresher training for underground miners). The
Secretary's evidence as to the alleged training violation here is
insufficient. The Secretary showed that the last training was
given in 1980; that no records reflected that the operator had
provided annual refresher training for the years 1982 and 1983;
and that fourteen employees were on Wilmot's payroll at the time
of the citation in May 1984. These facts alone, however, do not
prove that any of the employees in question needed refresher
training during any twelve month period ending in the cited time
frame of 1982-83 and were not provided such training. In sum, we
find lacking any relevant proof as to the employment and training
histories of the fourteen employees in question. Significantly, in
Emery, supra, the Secretary proved the violation by showing that
five miners had received refresher training in June 1980 and that
fifteen months had elapsed since their last training. 5 FMSHRC
at 1401. Thus, we conclude that in the present case the Secretary
did not establish a violation of section 48.28(a) as to any of the
fourteen individuals during the time period to which the citation
refers and that there is not substantial evidence supporting the
judge's finding of a violation.

Turning to the issue of the operator's failure to provide a

ROPS on the loader, Wilmot does not contest the judge:s finding of
a violation of section 77.403a(a) but argues that it was not
negligent in connection with that violation. Wilmot submits that
it was unforeseeable that Schrock would drive the Terex into the pit
without a ROPS and that his negligence in doing so should not be
imputed to the company. We disagree.

It is well established that the negligent actions of an

operator:s foremen, supervisors, and managers may be imputed to the
operator in determining the amount of a civil penalty. See, e.g.,
Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (August 1982). In
Nacco Mining Co., 3 FMSHRC 848 (April 1981), the Commission recognized
a narrow and limited exception to this principle. The Commission held
that the negligent misconduct of a supervisor will not be imputed to
an operator if: (1) the operator has taken reasonable steps to avoid
the particular class of accident involved in the violation; and
(2) the supervisor's erring conduct was unforeseeable and exposed
only himself to risk. 3 FMSHRC at 850. The Commission emphasized,
however, that even a supervisory agent's unexpected, unpredictable

Page 8

misconduct may result in a negligence finding where his lack of
care exposed others to risk or harm or the operator was otherwise
blameworthy in hire, training, general safety procedures, or the
accident or dangerous condition in question. 3 FMSHRC at 851. We
reject Wilmot's assertion that a Nacco defense was established.

With regard to the foreseeability of Schrock:s conduct,

substantial evidence supports the judge's finding that Bain, as
general manager, knew or should have known that Schrock would drive
to the pit in the Terex loader when he gave Schrock the paychecks to
deliver to the miners in the pit. 8 FMSHRC at 514. At the time Bain
gave the paychecks

Page 9

~688
of Schrock, the superintendent of the pit, Schrock was working
with the Terex near the access road to the pit. It was or should
have been foreseeable to Bain that Schrock would use the Terex for
delivery of the paychecks in the pit area. Also, Wilmot has not
established that it took reasonable steps to avoid the particular
class of violation involved here, specifically, it has not shown
that it took effective steps to prevent a loader without a ROPS
from being operated in the pit area.

 We emphasize that managers, such as Schrock, who was

superintendent and overall supervisor of the pit operation, must
be held to a demanding standard of care in safety matters.
Managers and supervisors in high positions must set an example for
all supervisory and non-supervisory miners working under their
direction. Such responsibility not only affirms management's
commitment to safety but also, because of the authority of the
manager, discourages other personnel from exercising less than
reasonable care.

Wilmot contests the judge's findings of a violation of

section 77.1605(b) and associated negligence. Concerning the
violation, Wilmot argues essentially that the record evidence does
not support the judge's finding as to the cause of the inadequacy
of the brakes. To prove a violation of this standard, however,
the Secretary is not required to elaborate a complete mechanical
explanation of the inadequacy of the brakes. A demonstrated
inadequacy itself may be sufficient. The inspector checked the
Terex's brake fluid levels and found them to be below normal. He
detected no leaks in the braking system and found the major components
of the system to be undamaged by the accident. When the Terex was
tested at a reasonably slow speed, thirty-six feet and successively
greater distances were required to stop the vehicle. His testimony
that at normal "operating capacity" during such a test the Terex
should have stopped within five to ten feet was unrefuted. We note
also that Bain conceded that the brakes were inadequate (Tr. 112),
disputing only the cause, which, in his view, was a blown booster
cylinder. Whatever the precise cause of the braking defect, the
evidence amply supports the judge s finding that the Terex was not
"equipped with adequate brakes," in violation of the cited
standard. 2/

On the issue of negligence, Wilmot again raises a Nacco

defense. There is no question that Schrock's conduct was highly
negligent; he told a mechanic shortly before the accident that he
had "lost" his brakes but proceeded to drive the Terex down a grade

Page 10

into the pit area. Whether Schrock's actions were foreseeable, the
judge properly found that his conduct "greatly endangered himself and
other persons who might have been injured in an accident involving
the Terex." 8 FMSHRC at 515. Therefore, the Nacco defense was not
established. 3 FMSHRC at 850-51.

2/ Wilmot objects to the judge s finding that "when fluid was added
to the normal level, it took only five to ten feet to stop." 8 FMSHRC
at 515. There is no evidence that the inspector added braking fluid
in testing the Terex. The evidence summarized above, however,
independently supports the finding of violation.

Page 11

~689
Finally, Wilmot's argument that the penalties proposed by the
Secretary and assessed by the judge are excessive is rejected, with
respect to the 30 C.F.R. $ 77.403a(a) and $ 77.!605(b) violations.
The penalties assessed are supported by the record and reflect proper
consideration of the statutory penalty criteria. We will not disturb
them on review. Shamrock Coal Co., ! FMSHRC 469 (June !979).

 Accordingly, we reverse the judge's finding that Wilmot

TOPlated 30 C.F.R. $ 48.28(a) and vacate the penalty assessed for that
violation. We affirm the judge's decision as to the other violations
and civil penalties.

                Ford B. Ford, Chairman

                Richard V. Backley, Commissioner

                Joyce A. Doyle, Commissioner

                James A. Lastowka, Commissioner

                L. Clair Nelson, Commissioner

Page 12

~690
Distribution

Mary Griffin, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Thomas G. Eddy, Esq.
Eddy & Osterman
1430 Grant Bldg.
Pittsburgh, Pennsylvania 15219

Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041