Secretary of Labor v. West Alabama Sand & Gravel, Inc.

Plain-English summary

A customer truck driver climbed onto a loaded trailer without fall protection at West Alabama Sand & Gravel's mine. After the Commission vacated the Judge's earlier removal of the unwarrantable-failure designation, the operator stipulated that the violation involved high negligence and unwarrantable failure. Judge Jerold Feldman explained that the remaining question was whether the penalty should exceed the $2,000 statutory minimum. He ordered the Secretary to address the operator's prior notice, management conduct, the contractor's role, company size, abatement, and other statutory penalty factors. The parties received deadlines to brief those issues or report an agreement on the penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15005
• Outcome: The Secretary was ordered to justify any penalty above the $2,000 statutory minimum, with West Alabama allowed to respond.
• Key point: After an unwarrantable-failure stipulation, the penalty still required a record addressing negligence, company size, contractor responsibility, abatement, and the other statutory criteria.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

February 17, 2016

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

WEST ALABAMA SAND & GRAVEL,      INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. SE 2009-870-M

A.C. No. 01-02738-194100

Mine: West Alabama Sand & Gravel

ORDER

Before:                        Judge
Feldman

The Commission has remanded this matter,
directing me to revisit the issue of unwarrantable failure and the appropriate
penalty to be assessed. 37 FMSHRC 1884 (Sept. 2015). The single citation at
issue is 104(d)(1) Citation No. 6511548, issued to West Alabama Sand &
Gravel, Inc., (“West Alabama”), alleging a violation of 30 C.F.R. § 56.15005,
which provides that “[s]afety belts and lines shall be worn when persons work
where there is danger of  falling. . . .” Specifically, Citation No. 6511548
alleges:

A customer truck driver [Johnny Kroger,
who was employed by Dunbar Transportation,] was observed climbing on top of the
loaded trailer. [Kroger] was not wearing a safety belt and lanyard or any other
type of restraining device to prevent a fall to the ground below. [Kroger] was
on his knees pulling on tarp within inches of the side of the trailer. [Kroger]
was exposed to a fall of ten feet to ground level. Clay Junkin (Vice President)
engaged in aggravated conduct constituting more than ordinary negligence by his
statement of knowing this was a hazard, and allowing this failure to comply
with a mandatory standard.

Citation
No. 6511548 was abated after West Alabama posted a sign advising contract
haulage drivers to tie down when securing their loads with tarp.

The Secretary filed a motion for summary
decision seeking the affirmance of 104(d)(1) Citation No. 6511548, which
characterized the cited violation as significant and substantial (S&S) and
attributable to an unwarrantable failure, and imposition of the proposed
$15,971.00 civil penalty. West Alabama opposed the Secretary’s motion, not
disputing the fact of the violation or the S&S designation, but opposing
the imposition of the $15,971.00 proposed penalty as excessive.

The initial decision granted, in part,
the Secretary’s motion for summary decision with respect to the fact of the
violation and the S&S designation. However, the initial decision modified
104(d)(1) Citation No. 6511548 to a 104(a) citation, thus deleting the
unwarrantable failure designation. Consequently, the imposed civil penalty was
reduced from $15,971.00, as initially proposed, to $760.00. 34 FMSHRC 1651,
1657 (July 2012) (ALJ).

The Commission now has vacated the
initial decision in favor of West Alabama on the issue of the unwarrantable
failure designation, and directed that I reconsider the issues of negligence
and unwarrantable failure consistent with their decision. 37 FMSHRC at 1891.

Following a series of conference calls,
on December 15, 2015, West Alabama stipulated that the subject section 56.15005
violation was attributable to an unwarrantable failure. Specifically:

1.      West Alabama
stipulates to such facts as are necessary and sufficient to permit the Court to
make a designation of unwarrantable failure under 30 U.S.C.    § 814(d)(1).  

2.      West Alabama
stipulates to such facts as are necessary and sufficient to permit the Court to
make a designation of “high” negligence level.

West Alabama’s Stipulation of Material
Facts, at 1 (Dec. 15, 2015).

Given West Alabama’s stipulation to the
Secretary’s unwarrantable failure designation, the remaining issue is the appropriate
penalty to be imposed for Citation No. 6511548. The statutory minimum penalty
for citations issued under section 104(d)(1) of the Mine Act is $2,000.00. 30
U.S.C. § 820(a)(3)(A).

In determining the appropriate civil
penalty, the Commission applies the statutory criteria in section 110(i) of the
Mine Act. 30 U.S.C. § 820(i) provides:

In assessing civil
monetary penalties, the Commission shall consider the operator’s history of
previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the
effect on the operator’s ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation. In proposing
civil penalties under this chapter, the Secretary may rely upon a summary
review of the information available to him and shall not be required to make
findings of fact concerning the above factors.

Thus, the issue is whether application
of the facts in this case to the statutory penalty criteria in section 110(i)
warrants the imposition of a civil penalty in excess of $2,000.00 minimum for
an unwarrantable failure.

ORDER

Consequently, IT IS ORDERED that the
Secretary address, by applying the statutory civil penalty criteria in section
110(i), whether there are aggravating factors relevant to section 110(i) that
warrant a civil penalty higher than the $2,000.00 statutory minimum.

With
respect to the degree of negligence, the Secretary should address:

-         
Whether
West Alabama was on notice that greater efforts for compliance were necessary
based on West Alabama’s history of previous relevant violations. If so, the
Secretary should specify the violations relied upon;

-         
Whether
West Alabama was ever required as a consequence of past MSHA inspections to
post a warning sign with respect to the necessity for contract drivers to tie
down. If so, the Secretary should provide the relevant details;

-         
Whether
the fact that the violation was committed by a contract employee that was not
under the direction and control of West Alabama is a mitigating circumstance;

-         
What
actions Clay Junkin took to justify the assertion made by the issuing inspector
that Mr. Junkin “allowed,” through his interaction with contractor employee
Johnny Kroger, this violation to occur. On this point, the issuing inspector
noted in Citation No. 6511548 that:

Clay Junkin (Vice President) engaged in
aggravated conduct constituting more than ordinary negligence by his statement
of knowing this was a hazard, and allowing this failure to comply with a
mandatory standard.

-         
Whether
MSHA has exercised its discretion to cite contractor Dunbar Transportation, in
addition to Alabama Sand, for driver Johnny Kroger’s failure to tie down, which
was the basis for Citation No. 6511548, given the fact that Dunbar
Transportation was in a better position to supervise, train, and discipline
Kroger. If so, the Secretary should provide a copy of the relevant citation.

With
respect to the appropriateness of the penalty to the size and nature of the
business,
the Secretary should address:

-         
Whether
the imposition of a penalty in excess of $2,000.00, given the record evidence
that West Alabama has only approximately eight employees, is appropriate to the
size of the business;

-         
Whether
the fact that Clay Junkin, a principle of West Alabama, has unrelated income as
a partner in a law firm is a relevant consideration with respect to the
statutory penalty criteria.

With
respect to abatement,
the Secretary should address:

-         
Whether
Alabama Sand abated the cited violation in a timely manner by installing a sign
advising contract haulage drivers to tie down when securing a load.

The Secretary should address any other
information relevant to justify the imposition of a civil penalty higher than
the $2,000.00 statutory minimum.

IT IS FURTHER ORDERED that the Secretary
respond, in writing, to the above    on or before March 11, 2016. If
West Alabama elects to file a written response to the Secretary’s submission,
such response should be filed by March 25, 2016. Alternatively, the parties
should advise, at any time prior to March 25, 2016, whether they have
reached an agreement with respect to the appropriate civil penalty to be
imposed in this matter.

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:
(Regular and Certified Mail)

Sophia
E. Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth
Street SW, Room 7T10, Atlanta, GA 30303

Clatus
Junkin, Esq., P.O. Box 688, 202 3rd Street NE, Fayette, AL 35555

Charles
E. Harrison, Esq., Pearson Harrison & Pate, LLC, P.O. Box 3119, Tuscaloosa,
AL 35403

/acp