Secretary of Labor v. Jim Walter Resources, Inc.

Plain-English summary

An employee of contractor O&O Services fell through an opening at Jim Walter Resources' coal load-out facility while not using fall protection. The judge held JWR strictly liable as the mine operator for the significant-and-substantial violation but found that JWR itself was not negligent and reduced the proposed $45,000 penalty to $500. The Commission affirmed because JWR had hired an experienced contractor, verified MSHA-approved training, provided tie-off points and fall-protection equipment, visited the short project, and lacked notice that the opening had been uncovered or that the employee was unprotected. It also upheld the judge's treatment of two earlier incidents and held that the no-negligence finding could receive greater weight in the penalty assessment. Commissioners Young and Cohen dissented, arguing that the prior contractor falls required a fuller negligence analysis and remand.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1710(g)
• Outcome: The no-negligence finding, evidentiary rulings, and reduction of the penalty from $45,000 to $500 were affirmed.
• Key point: An owner-operator remains strictly liable for a contractor's violation, but its own lack of fault may substantially reduce the penalty when it took reasonable precautions and lacked notice of the unsafe act.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710August 21, 2014

SECRETARY OF LABOR,                            :                 

MINE SAFETY AND HEALTH                   : 

ADMINISTRATION (MSHA)                      :       

:      Docket Nos.    SE 2008-881 

v.                                                :                            SE 2008-268-R    

:                  

JIM WALTER RESOURCES, INC.                   :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY: Jordan, Chairman; Nakamura and Althen, Commissioners

This consolidated contest and civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012). At issue is whether a
Commission Administrative Law Judge abused his discretion in reducing a civil penalty assessed
against Jim Walter Resources, Inc. (“JWR”) for a failure-to-wear-fall-protection violation of 30
C.F.R. § 77.1710(g).

33 FMSHRC 362 (Feb. 2011) (ALJ). The citation was issued to JWR
following a fall by an employee of JWR’s contractor, O&O Services. The Judge assessed a
penalty of $500 rather than the proposed penalty of $45,000. Id. at 370-71. The Secretary of
Labor filed a petition for discretionary review, challenging the penalty reduction, the Judge’s
finding that JWR was not negligent, and the Judge’s related treatment of evidence regarding two
prior incidents involving violations of section 77.1710(g) by JWR. For the reasons that follow,
we affirm the Judge’s decision.

I.

Factual and Procedural Background

The clean coal load-out facility at JWR’s No. 4 Mine funnels clean coal into trucks and
rail cars. Clean coal is moved by conveyor belt to the top of the facility, where it is dumped into
a large, downward pointing metal cone-shaped loading bin. The cone surrounds an opening in
the floor of a platform, which is approximately 21 by 48 inches in size. The cone funnels and
loads the coal into trucks parked beneath the loading bin. Tr. 64, 117; JWR Exs. 6g-6i.

JWR contracted with O&O to provide the labor and supervision for a project to replace
the cone-shaped bin. 33 FMSHRC at 364. O&O was to remove the eight sections of the cone
and replace them with new sections.

O&O’s work on the project began on December 2, 2007. Id. Loops, called “pad eyes”
were welded onto the existing bin and the new sections of the cone. Id. at 370; Gov’t Ex. 20F;
Tr. 334-35, 389. The loops could be used to lift the structure’s pieces or for miners to tie-off on
them. Tr. 389. Removal of the cone sections exposed the hole in the floor of the platform.
During part of the project, the hole was covered with a metal plate that had metal fins, or
“gussets,” protruding from it. Tr. 64-65.

On December 4, two issues arose regarding the project. Tr. 319-21. First, there were
concerns that part of the structure had been unevenly cut, which could potentially result in gaps
between the new cone sections. Tr. 233-36, 263-64, 277, 310. Second, O&O experienced
difficulty in positioning some of the new sections of the cone into place because the metal fins on
the metal plate covering the hole in the platform were interfering with placement of the pieces.
Tr. 67-68, 312.

At some point during installation of the cone pieces, the metal plate was moved away
from covering the entire hole and a section of 2 x 12 wooden board was placed over the open
space, partially covering the hole. Tr. 78, 317, 393. Tony Pierce, an O&O employee, stood on
the board using a pry bar to move the fifth cone section into place. Tr. 67, 109-10, 117-18, 316-17. The board was dislodged, and Mr. Pierce fell through the hole a distance of 25 feet and
landed on a concrete platform. Tr. 81, 139. Pierce was not wearing a safety belt or fall
protection. Tr. 113.

The Department of Labor’s Mine Safety and Health Administration (“MSHA”)
investigated the accident. As a result of the investigation, MSHA Inspector Stephen Womack
issued citations to O&O and JWR. The citation issued to O&O alleged a significant and
substantial (“S&S”) violation of section 77.1710(g) that had been caused by O&O’s
unwarrantable failure.

Gov’t Ex. 2. The Secretary proposed a penalty of $60,000 against O&O.
O&O agreed to pay $5,000 in settlement of the citation, and the Judge approved the settlement.
33 FMSHRC at 364 n.1; PDR at 3, 4.

The citation issued to JWR, Citation No. 7693051, alleged an S&S violation of section
77.1710(g) that had been caused by moderate negligence. Gov’t Ex. 3. The citation was
terminated on February 5, 2008, after “[JWR] management . . . submitted to MSHA a statement
indicating that a greater emphasis on the use of PPE [personal protective equipment] will be
related to contractors doing work on JWR No. 4 mine property, and during the process of hazard
training will review recent accidents of contractor employees.” Id. The Secretary proposed a
special assessment of $45,000 against JWR.

JWR challenged the citation, and the parties conducted discovery and filed prehearing
pleadings. Prior to and during the hearing, the Judge granted in part a motion in limine filed by
the operator seeking to exclude evidence that had been the subject of previously issued protective
orders. PDR at 3 n.1; Tr. 7-10. The Judge excluded evidence regarding a 2001 incident,
including proposed Gov’t Ex. 13A, which is a citation issued to JWR alleging a violation of
section 77.1710(g). Tr. 7-8, 10. The Judge admitted evidence regarding a 2007 incident,
including a citation issued to JWR for a violation of section 77.1710(g) arising from a fatal fall
by JWR’s contractor (Gov’t Ex. 9) and a decision approving settlement regarding the 2007
incident (Gov’t Ex. 11). Tr. 134-35. The Judge excluded other evidence regarding the 2007
incident. Tr. 5, 7.

Following a hearing on the citation issued to JWR, the Judge affirmed the citation and
assessed a civil penalty of $500 against JWR rather than the proposed penalty of $45,000. 33
FMSHRC at 368, 370-71. He concluded that O&O violated the standard, and that the violation
was S&S. Id. at 368-69. The Judge reasoned that because the Secretary may cite JWR as an
owner-operator for its contractor’s violations, JWR was also liable for the violation. Id. at 368.

Applying the factors set forth in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), in his
assessment of penalty, the Judge found that JWR is a large business, that there was no evidence
that the proposed penalty would affect its ability to remain in business, and that the violation was
abated promptly and in good faith. Id. at 369. The Judge further found that gravity was high,
and that JWR had a significant history of violations. Id. at 368-69.

Regarding negligence, the Judge noted that Inspector Womack testified that JWR was
moderately negligent because it did not do “everything [it] could” to see that its contractor was
following federal regulations. Id. at 369-70. The Judge reasoned that the Secretary was in
essence suggesting that JWR must maintain direct and continuous supervision over its
contractor’s employees, but that such a requirement is not required by law. Id. at 370. He stated
that the closest the Secretary had come to providing notice as to the standard of care required of
JWR was the abatement required regarding the 2007 incident. Id. Those abatement actions
included additional training and requiring JWR to install an adequate anchorage system. Id. The
Judge found that, in this instance, JWR had provided an adequate anchorage system and that
O&O employees were provided adequate training prior to beginning work. Id. The Judge
concluded, accordingly, that JWR exercised the standard of care required by law and that the
Secretary failed to prove that JWR was negligent. Id.

The Secretary filed a petition for discretionary review challenging the Judge’s finding that
JWR was not negligent, the Judge’s treatment of evidence regarding the 2001 and 2007
incidents, and the Judge’s reduction of penalty. The Commission granted the Secretary’s
petition.

II.

Disposition

A.        The Judge’s Finding that JWR was Not Negligent Is Supported by Substantial
Evidence.

The Commission has recognized that “[e]ach mandatory standard . . . carries with it an
accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet
the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.”
A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met
its duty of care, we consider what actions would have been taken under the same circumstances
by a reasonably prudent person familiar with the mining industry, the relevant facts, and the

protective purpose of the regulation.

See generally U.S. Steel Corp., 6 FMSHRC 1908, 1910
(Aug. 1984).

Considering JWR’s conduct against this framework, we conclude that substantial
evidence supports the Judge’s determination that JWR was not negligent.

The record
demonstrates that JWR was not negligent in hiring O&O. O&O had no prior MSHA violations.
Tr. 197, 333, 414. O&O had completed other projects for JWR safely, including three or four
that year, and was considered an “approved vendor” for JWR. Tr. 274, 292-93. JWR also
determined that O&O was appropriately aware of MSHA’s regulations. JWR ensured that O&O
had received required training before work on the project began. Tr. 299, 349-50. As part of
their hazard training, O&O’s employees watched an MSHA fall protection video. Tr. 387, 400-02. O&O’s training program had been approved by MSHA. Tr. 185-86, 414. Robin O’Dell, an
employee of O&O who provided training, was an MSHA certified trainer. Tr. 387, 398-401.

Furthermore, we disagree with the Secretary’s argument that JWR failed to adequately
monitor O&O’s compliance with safety standards once O&O began work. The project was
relatively brief in duration. O&O began the project during the night shift Sunday and had
removed the cone and was in the process of replacing the fifth of eight cone pieces at the time of
the accident on the following Tuesday morning. Tr. 67, 173, 232, 275. JWR Senior
Maintenance Engineer Jerry Pullen met with O&O on Tuesday, and JWR Project Supervisor
Randy Osborne and JWR Plant Manager Alan Smith met with O&O at the site on Monday and
Tuesday mornings. Tr. 231-32, 261-62, 276-77. Osborne and Smith testified that at the time that
they were on the site, they did not observe any miners who were in danger of falling who were
not wearing fall protection. Tr. 260-61, 266, 299. Smith testified that he had previously seen
O&O employees working at heights on previous projects, and that they had been wearing and
using fall protection. Tr. 295. Inspector Womack testified that he had been informed by O&O
Foreman Kris Gamble that Pierce had been wearing fall protection earlier in the day of the
accident when he was on a ladder. Tr. 108-09, 177.

There is likewise no evidence that there was an unusual condition that should have alerted
JWR to a hazardous condition. Fall protection equipment had been provided and was located in
the area of the accident, and pad eyes used for tying off had been installed on the cone sections.
33 FMSHRC at 370; Gov’t Exs. 20F, 20H; Tr. 73, 334. There were no allegations that use of the
metal plate with gussets to cover the hole was negligent.

In addition, JWR had not been informed that O&O was having difficulty installing the
cone sections because the gussets of the plate covering the hole interfered with placement of the
sections. Tr. 231-32, 263-64, 268-69, 320-21. Pullen’s and Osborne’s testimony that they had
not been informed of the problem with the plate was corroborated by O&O Foreman Gamble,
who testified that although he discussed with Pullen and Osborne the problem involving the cone
sections not matching up because one had not been cut level, he did not discuss the plate
problem. Tr. 320-21. On the morning of the accident, Pullen and Osborne were in the area of
the plate covering the platform but saw no hole in the platform because the hole was covered at
the time of their visit. Tr. 235, 243, 245, 264-65, 267.

Substantial evidence also supports the Judge’s finding that JWR was not aware that
Pierce was working over the open hole or that Pierce failed to wear fall protection. 33 FMSHRC
at 370. As discussed above, Pullen and Osborne testified that at the time they were at the site,
the hole in the platform was covered. Tr. 243, 245, 265, 267. Smith testified that he was not
aware that O&O had installed a plate over the hole or that it had been moved. Tr. 280-81.

The Secretary fails to describe any specific action that JWR did not take to meet its
standard of care. Rather, Inspector Womack explained that the citation had been issued to JWR
because MSHA believed there was negligence and JWR “did not do everything [it] could” to see
that the contractor was following regulations. Tr. 125. The inspector’s accident investigation
report does not specify any actions or failure to act by JWR that contributed to the violation.
Rather, the report only states that “the contractor [O&O] failed to adequately control the work
site and workers actions.” Gov’t Ex. 6 at 2 (emphasis added); Tr. 126-27, 160-61, 211-12. We
conclude that substantial evidence supports the Judge’s determination that the Secretary did not
meet her burden of proving negligence on the part of JWR. 33 FMSHRC at 370.

B.        The Judge Did Not Err in his Treatment of the 2001 and 2007 Incidents.

The Secretary contends that the Judge failed to consider the 2001 and 2007 incidents,
which the Secretary argues should have put JWR on notice that it was not meeting its standard of
care. He does not dispute the Judge’s exclusion of evidence with respect to the 2007 incident
but, rather, argues that the Judge failed to adequately consider the 2007 violation in finding that
JWR was not negligent. Sec. Reply Br. at 1-2 n.1, 6. Regarding the 2001 incident, the Secretary
contends that the Judge erred in excluding proposed Gov’t Ex. 13A, the citation issued to JWR
arising from the 2001 incident. Sec. Reply Br. at 1-2 n.1. The Secretary explains that the Judge
excluded the citation because “he believed it was ‘too old to represent an expression of the
[Secretary’s] unreviewable prosecutorial discretion in late 2007.” Id. at 3. The Secretary
submits that his discretion to cite an owner for the violations of its independent contractor is
unreviewable and because the Judge had no authority to even consider the Secretary’s
prosecutorial discretion, he abused his discretion in excluding the citation. Id.

When reviewing a Judge’s evidentiary rulings, the Commission applies an abuse of
discretion standard. Gray v. North Fork Coal Corp, 35 FMSHRC 2349, 2356 (Aug. 2013). An
abuse of discretion may be found when “there is no evidence to support the decision or if the
decision is based on an improper understanding of the law.” Id. (quotations and emphasis
omitted).

In his negligence analysis, the Judge noted that the 2007 citation involved “a prior
violation of the same standard by JWR about one month before the incident herein and involving
a fatal fall accident of an employee of a JWR contractor.” 33 FMSHRC at 370. He considered
the accident to determine the notice provided to JWR of the required standard of care. Id. The
Judge noted the actions required by the Secretary for JWR to abate the 2007 violation (providing
additional training and installing an adequate anchorage system to secure personnel from falling)
and that JWR had taken those actions before the time that the subject accident occurred. Id. As
noted above, the anchorage system available at the subject accident site and JWR’s actions in
ensuring that O&O had received adequate training are relevant to the consideration of
negligence. Accordingly, we conclude that the Judge adequately considered the 2007 violation in
his negligence analysis.

We further conclude that the Judge did not abuse his discretion in excluding proposed
Gov’t Ex. 13A, the citation issued to JWR arising from the 2001 incident. After viewing in
context the Judge’s statement, it is clear that the Judge was not actually considering the
Secretary’s prosecutorial discretion. See, e.g., Tr. 25 (stating in part, “I am referring to notice. I
don’t have any problem with exercising discretion”). Rather, the Judge’s statements demonstrate
that he considered the standard of care required of an owner-operator in cases in which its
independent contractor has been cited to be vague, and that the 2001 citation did not provide
notice to JWR of what was expected of it at the time of the subject accident. Tr. 17-19, 25-27;
see also 33 FMSHRC at 370 & n.5. Thus, the Judge’s exclusion of the 2001 citation was not
based on an erroneous conclusion that he could consider the Secretary’s prosecutorial discretion
in citing JWR.

In any event, even if we were to conclude that the Judge erred in excluding Gov’t Ex.
13A, we would find such error to be harmless. For the reasons discussed above, we find
substantial evidence in the record supporting the Judge’s negligence holding, and consideration
of the 2001 citation would not alter our conclusion.

C.        The Judge Did Not Err in Reducing the Penalty Amount.

The Secretary argues that the Judge abused his discretion in reducing the penalty assessed
against JWR from the proposed amount of $45,000 to $500. He asserts that the Judge failed to
explain the reduction adequately, even if the reduction were based on his no negligence finding,
because the Judge also found the violation history to be significant and gravity to be high. The
Secretary contends that a Judge may not give dispositive weight to any one penalty factor.

Commission Judges are accorded broad discretion in assessing civil penalties under the
Mine Act. See, e.g., Cantera Green, 22 FMSHRC 616, 620 (May 2000). Such discretion is not
unbounded, however, and must reflect proper consideration of the penalty criteria set forth in
section 110(i) and the deterrent purpose of the Act. Sellersburg Stone Co., 5 FMSHRC 287,
290-94 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Although there is no presumption of
validity given to the Secretary’s proposed assessments, the Commission has recognized that
substantial deviations from the Secretary’s proposed assessments must be adequately explained
using the section 110(i) criteria. Cantera Green, 22 FMSHRC at 620-21. Assessments “lacking
record support, infected by plain error, or otherwise constituting an abuse of discretion are not
immune from reversal.” U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984).

We conclude that the Judge did not abuse his discretion in assessing the penalty. The
Judge addressed and made findings on all six section 110(i) factors in his assessment of penalty.
33 FMSHRC at 369-70.

The Commission has recognized that in assessing a civil penalty, there is no requirement
that equal weight must be assigned to each of the penalty assessment criteria. Rather, “Judges
have discretion to assign different weight to the various factors, according to the circumstances
of the case.” Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001), citing Thunder Basin
Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Indeed, the Commission has held that Judges
have not abused their discretion by more heavily weighing gravity and negligence than the other

penalty criteria.

Lopke, 23 FMSHRC at 713; Musser Engineering, Inc., 32 FMSHRC 1257,
1289 (Oct. 2010).

The Judge did not err by weighing the negligence criterion more heavily than the other
section 110(i) factors in assessing the penalty against JWR. In proposing a penalty, the Secretary
weighs the gravity criterion more heavily than the negligence criterion. PDR at 7. However, the
Judge was not required to weigh the criteria in assessing the penalty in the same manner that the
criteria are weighed in the proposal of a penalty. In determining the amount of a penalty, neither
the Judge nor the Commission is restricted by the penalty proposed by the Secretary. Musser
Engineering, 32 FMSHRC at 1288 (citations omitted). See also 29 C.F.R. § 2700.30(b) (“In
determining the amount of a penalty, neither the Judge nor the Commission shall be bound by a
penalty proposed by the Secretary or by any offer of settlement made by a party.”).

Moreover, when cited for a contractor’s violation, an owner-operator is strictly liable for
the violation and its fault, or lack thereof, may be taken into account only in the consideration of
negligence during penalty assessment. Int’l Union, UMWA v. FMSHRC, 840 F.2d 77, 83-84
(D.C. Cir. 1988); Musser, 32 FMSHRC at 1272, citing Asarco, Inc., 8 FMSHRC 1632, 1634-36
(Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 1989) (“the operator’s fault or lack thereof, rather
than being a determinant of liability, is a factor to be considered in assessing a civil penalty”).
Here, the Judge appropriately considered JWR’s fault, or lack thereof, in his determination of
negligence and assessment of penalty. Accordingly, we affirm the Judge’s assessment of a
penalty of $500.

III.

Conclusion

For the reasons discussed above, we affirm the Judge’s determination that JWR was not
negligent, his treatment of evidence regarding the 2001 and 2007 incidents, and his assessment of
penalty. 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Commissioners Young and Cohen, dissenting:

We cannot agree with the Judge’s analysis of JWR’s negligence in this case, which fails
to fully appreciate the context in which this violation occurred or to analyze the operator’s duty
in that context. While we do not believe the record requires reversal, we would remand the case
for re-evaluation of the negligence and, if necessary, reconsideration of the penalty.

Accordingly, we dissent.

The near-fatal fall in this case was the third time in seven years that a contractor’s
employee had fallen at a JWR operation while working, unprotected, at height. The previous two
falls, in 2001 and 2007, had been fatal. The miner in this case fell 25 feet onto a concrete pad,
was seriously injured, and easily could have been killed. Tr. 139.

The Judge seemed to lack sufficient grasp of the influence that the prior falls might
reasonably have exerted on JWR’s appreciation of the potential danger. It may well be that JWR
was justified in trusting O&O to safely oversee its own workers, using JWR’s remedial
abatement measures and fall protection which O&O should have known was required under the
circumstances. However, the owner-operator’s conduct here must also be properly evaluated in
light of the Act and the duties it imposes upon operators.

We thus agree with the Secretary that the Judge improperly imposed an additional burden
on the Secretary to provide notice to an owner-operator of the standard of care owed to contractor
employees. While the allocations of duty and responsibility may vary under different
circumstances, an operator of a mine does indeed owe a high duty of care to all miners working
in that mine, including contractor employees.

This is organic to the structure and purpose of the Act. Section 2 of the Mine Act notes
the terrible toll exacted by unsafe and unhealthful conditions and practices in the nation’s mines
and provides that “the operators of such mines with the assistance of the miners have the primary
responsibility to prevent the existence of such conditions and practices in such mines.” 30 U.S.C.
§ 801(e).

Thus, while the Judge agreed with JWR that it had not been provided with notice of the
standard of care, 33 FMSHRC 362, 369-70 (Feb. 2011) (ALJ), the Act itself imposes a duty to
prevent unsafe conditions or practices. Furthermore, while 30 C.F.R. Part 100 is not binding on
the Commission,

it clearly provides notice to operators of the Secretary’s conception of the duty
owed to miners under the Act. Section 100.3(d) informs JWR and every other operator of the
Secretary’s expectation of the “high standard of care” owed to all miners in its mines, and of its
responsibility to “be on the alert” for unsafe practices or conditions and “take steps necessary to
correct or prevent them.” PDR at 8-9, citing 30 C.F.R. § 100.3(d).

The regulation goes on to
flatly state that the failure to do so constitutes negligence. Id. The operator should have at least
known the Secretary’s expectations, expressed in a published regulation.

Thus, the question posed by this case is not whether JWR did “everything they [sic]
could,” 33 FMSHRC at 369, but whether the operator failed to apprehend the evident danger in
this case and to take such steps as a reasonable person, familiar with the mining industry and the
protective purposes of the Act, would take under the circumstances to prevent miners from being
exposed to a risk of injury or death. The majority acknowledges this as the correct standard. Slip
op. at 4, citing U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). However, the majority
then analyzes JWR’s duty in terms of substantial evidence, disregarding the Judge’s legal error in
miscasting the concept of negligence in this case. Slip op. at 5.  

In evaluating an operator’s duty, and its possible breach, context is crucial. Yet the Judge
utterly failed to consider two nearly identical, fatal injuries to contractor employees in JWR’s
recent history. One of the two falls happened a mere four months before the fall in this case. G.
Ex. 9; PDR at 13-14. Instead of considering the two prior falls by contract employees, he
misapplied the law and excluded evidence of the 2001 accident altogether, on grounds that it was
“too old” to provide notice to JWR of MSHA’s policy of prosecuting injuries to contract
employees. Tr. 10.

The Secretary correctly questions how a fatal accident only seven years
earlier could have faded from memory. PDR at 13. Indeed, it is not unreasonable to expect it to
have become part of JWR’s consciousness on safety issues involving contractors.

As the Secretary notes (PDR at 12; Sec. Reply Br. at 4-5), as demonstrated by Alabama
law, for example, a Judge should have considered both accidents as evidence of negligence, “so
long as the conditions of the prior incidents are substantially similar” – in this case, they are
nearly identical – “and are not too remote in time.”  See e.g., Wyatt v. Otis Elevator Co., 921 F.2d
1224, 1227 (11th Cir. 1991).  Here, the Judge did not do so, nor did he explain why a fatal
accident seven years earlier at one of the operator’s own work sites was too remote in time, a fact
we cannot accept as self-evident. 

If the 2001 fatality was at least arguably relevant to JWR’s negligence, the 2007 fatality
was doubly so. The Judge therefore was required to determine whether a reasonably prudent
person would have recognized the danger that event evinced, as well as the possibility that this
fall and the 2001 fatality may have represented a pattern of inadequate contractor attention to the
safety standards governing fall protection. Instead, the 2007 accident, which was the subject of
evidence presented to the Judge,

is not meaningfully considered in his negligence analysis. The
majority errs in miscasting the relevance of the very recent fatality in nearly identical
circumstances. The important question is not JWR’s notice of the standard of care. See slip op.
at 7; 33 FMSHRC at 369-70. It is whether and how JWR’s duty to protect the workers in its
mines, in light of an incident that a reasonable person would have to consider in determining how
to uphold that duty, was fulfilled.

The Judge therefore erred in two significant regards. His understanding of JWR’s duty
did not conform to the expectations of the Mine Act and the regulations implementing it, and he
failed to consider incidents similar enough to be relevant to JWR’s knowledge and actions in the
context of this case. The result is an improperly constrained view of the operator’s actions here.
The Judge faults the Secretary for “suggesting that JWR must maintain direct and continuous
supervision over its contractor’s employees” to ensure fall protection is employed when required,
33 FMSHRC at 370. But his opinion is devoid of analysis of any lesser measures that JWR
might have undertaken in these circumstances, in light of a recent history of contractor
employees falling to their deaths.

The Judge thus never considered whether, for example, JWR might have averted the
severe consequences in this case by taking a more safety-conscious approach, such as reminding
the contractor specifically, before commencing work each day,

of the steps JWR had taken to
provide a safe work environment, and the need for the contractor to ensure its employees used
the fall protection JWR had made available.

This is not a case where the operator “did nothing.”

Nor is it a case where the operator
should be excused without reflection for “not doing everything it could.” It is instead a garden-variety negligence case, in which the operator’s conduct must be properly evaluated against the
expectations imposed upon a reasonable operator in the same context. The Judge failed to
recognize this, and we therefore dissent and suggest that the case should be remanded for a
proper analysis of the operator’s conduct.

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Guy Hensley, Esq.

Jim Walter Resources, Inc.

3000 Riverchase Galleria, Suite 1700

Hoover, AL 35244

David M. Smith, Esq.

John B. Holmes, Esq.

Maynard, Cooper & Gale, P.C.

1901 Sixth Ave. North, Suite 2400

Birmingham, AL 35203

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Administrative Law Judge Gary Melick

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004