Lincoln Sand and Gravel Company

Plain-English summary

Lincoln Sand and Gravel did not appear at a scheduled hearing after the ALJ granted its request for a hearing and moved the start time later on the same day. The Secretary presented evidence on three citations, and the ALJ affirmed each citation and assessed a total of $168. The Commission rejected Lincoln's arguments about the hearing location and timing, finding that the notice and adjusted start time were reasonable. It also found substantial evidence supporting the violations and affirmed the ALJ's decision.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.51 and 2700.53; 30 U.S.C. § 823(d)(2)(A)(ii)(1)
• Outcome: Three citations and $168 in civil penalties were affirmed.
• Key point: A reasonable hearing notice and a modest same-day scheduling accommodation did not require further delay when the operator did not appear.

Full text (FMSHRC public release)

CCASE:
MSHA V. LINCOLN SAND AND GRAVEL
DDATE:
19890208
TTEXT:

            FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                           WASHINGTON, D.C.
                             February 8, 1989

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

  v.                Docket No. LAKE 88-67-M

LINCOLN SAND AND GRAVEL COMPANY

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

         DECISION

BY THE COMMISSION:

This civil penalty proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq
(1982), involves three citations issued to Lincoln Sand and
Gravel Company ("Lincoln") alleging violations of mandatory safety
standards. Following proper notice, a hearing on the merits was
held in St. Louis, Missouri on July 25, 1988. Lincoln failed
to appear at the hearing. In his decision issued December 8, 1988,
Administrative Law Judge Roy J. Maurer determined that Lincoln
violated the mandatory safety standards as alleged in the citations
and assessed civil penalties totalling $168. 10 FMSHRC 1679 (December
1988)(ALJ). We granted Lincoln's petition for discretionary review
and stayed briefing. Upon consideration of the full record, we have
determined that briefs are not necessary for the resolution of this
case. For the reasons that follow, we affirm the judge's decision.

Lincoln is proceeding in this case without the benefit of

counsel. In response to the Chief Administrative Law Judge's
Order to Respondent to Show Cause why it failed to file an answer
to the Secretary of Labor's Proposal for a Penalty, Lincoln replied,
by letter mailed on June 2, 1988, that it had not received the

Page 2

Proposal for a Penalty and it requested a hearing. By notice of
July 1, 1988, Judge Maurer set the hearing for 8:00 a.m., July 25,
1988, in St. Louis, Missouri. The record reveals that approximately
one week prior to hearing, Lincoln, by telephone, requested a later
hearing date. Tr. 3. The administrative law judge agreed to delay
the hearing until 10:30 a.m. on the same date. Tr. 3; 10 FMSHRC at
1681. When Lincoln failed to appear by 10:30 a.m., the attorney
representing the Secretary of Labor called Lincoln and was told by the
office manager that no representative from Lincoln would be attending
the hearing. Tr. 3-4; 10 FMSHRC at 1681. The Secretary presented
evidence as to each citation and the hearing was closed at 11:15 a.m.
The judge affirmed each citation in his written decision.

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~159
In its petition for discretionary review Lincoln first
contends that Paul Orr, Vice-President of Lincoln, called Judge Maurer
after receipt of the notice of hearing to request that the hearing be
held in Lincoln, Illinois. Lincoln also alleges that Orr called the
judge's office on the Wednesday or Thursday prior to the hearing and,
in the judge's absence, informed the judge's secretary that he would
not be able to attend the hearing and asked that the hearing be
delayed. By implication, Lincoln argues that the judge's failure to
grant these requests was unreasonable. We disagree. Lincoln did not
request any particular hearing site or date in its June 2 written
request for a hearing. Rule 51 of the Commission's Procedural Rules,
29 C.F.R. $ 2700.51 provides:

All cases will be assigned a hearing site by order
of the Judge, who shall give due regard to the
convenience and necessity of the parties or their
representatives and witnesses, the availability of
suitable hearing facilities, and other relevant factors.

This Rule was derived from section 5(a) of the Administrative
Procedure Act, 5 U.S.C. $ 554(b), which states: "In fixing the times
and places for hearings due regard shall be had for the convenience
and necessity of the parties or their representatives." Judge Maurer,
in accordance with Rule 51, reasonably set the hearing for St. Louis,
Missouri, a city located less than 150 miles from the mine. Compare,
Cut Slate, Incorporated, 1 FMSHRC 796 (1979)(administrative law judge
abused his discretion by requiring a small quarry operator to attend a
prehearing conference at a site about 450 miles from the operator's
mine).

The notice of hearing setting forth the date, time and place

of hearing was issued to Lincoln 24 days prior to the hearing date.
See Procedural Rule 53, 29 C.F.R. $ 2700.53. During his telephone
conversation with Orr, the judge agreed, in response to Orr's request,
to start the hearing two hours later on the scheduled hearing date.
Tr. 3; 10 FMSHRC at 1681. Nothing in the record suggests that Orr
objected to this resolution of his requests. Orr's alleged phone call
to the judge's secretary requesting a further delay is not reflected
in the record. */ In addition, Lincoln did not set forth any reasons
to support the requested additional delay. For the foregoing reasons,
we conclude that the judge complied with the requirements of the Mine
Act and the Commission's Procedural Rules in setting this case for
hearing.

Lincoln also challenges the judge's findings that it violated

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the mandatory safety standards alleged in the citations. We have
reviewed the record and conclude that the judge's findings of
violation are supported by

*/ We previously have noted "the risk of possible misunderstandings,
conflicting interpretations, and differing recollections, resulting
from ... telephonic [,rather than written,] communications...."
Inverness Mining Co., 5 FMSHRC 1384. 1388 n. 3 (August 1983).

Page 5

~160
substantial evidence. 30 U.S.C. 823(d)(2)(A)(ii)(1). Lincoln
makes other allegations in its petition for review that do not
raise issues under the Mine Act and are not appropriately addressed
in this decision.

For the foregoing reasons, the judge's decision is affirmed.

                 Ford B. Ford, Chairman

                 Richard V. Backley, Commissioner

                 Joyce A. Doyle, Commissioner

                 James A. Lastowka, Commissioner

                  L. Clair Nelson, Commissioner

Distribution

Paul R. Orr, Vice President
Lincoln Sand & Gravel
P.0. Box 67
Lincoln, Illinois 62657

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

Administrative Law Judge Roy Maurer
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041