Secretary of Labor v. Sims Crane

Plain-English summary

A Sims Crane employee exited a crane cab on a lowboy trailer by taking two or three steps across a three-foot-wide, skid-resistant deck about seven feet above the ground, then using a front ladder. The inspector cited the company for lacking fall protection, but had not closely examined the crane and was initially unaware of the deck's width, anti-skid surface, and front ladders. The Commission held that the judge improperly shifted the burden to Sims by treating missing ISO certification paperwork as decisive instead of first requiring the Secretary to prove a danger of falling. It found the Secretary's limited evidence insufficient to show that this particular method of egress more likely than not created a fall hazard. The Commission reversed the judge and vacated the citation.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15005
• Outcome: Citation No. 8823573 was vacated.
• Key point: An operator's failure to document ISO compliance cannot substitute for the Secretary's burden to prove that the specific work condition presented a danger of falling.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C.  20004‑1710

SECRETARY
OF LABOR,                              :

MINE SAFETY AND HEALTH                  :

ADMINISTRATION (MSHA)                      :       Docket No. SE
2016-81

:

v.                                                
:

:

SIMS CRANE                                                    :

BEFORE:  Rajkovich, Chairman; Jordan, Young, Althen, and Traynor,
Commissioners

DECISION

BY THE COMMISSION:

This proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”).  The
single citation at issue alleges that the manner in which a Sims Crane employee
exited the cab and descended from a crane on a lowboy trailer violated the fall
protection standard at 30 C.F.R. § 56.15005. [1]

Sims argued below that the employee’s method of egress was consistent
with safe access standards issued by the International Organization for
Standardization (“ISO”) and incorporated by the Mine Safety and Health
Administration (MSHA).  The Administrative Law Judge found that Sims failed to
provide certification of ISO compliance which he believed was directed by MSHA guidance,
rejected Sims’ argument, and found a violation.  39 FMSHRC 116, 124-25 (Jan.
2017) (ALJ).

On appeal, Sims
claims that the Judge found a violation based solely on Sims’ failure to
provide documentation of ISO compliance, and that this constitutes legal
error.  Sims argues that a lack of ISO documentation is not a proper basis for
a violation of the standard, and that the Judge improperly shifted the burden
of proof by requiring Sims to establish compliance rather than requiring the
Secretary to establish a violation. 

For the reasons
below, we find that the Judge improperly shifted the burden of proof, reverse
the Judge’s decision, and vacate the citation. 

I.

Factual and Procedural Background

A.    
Factual Background

The events at
issue took place at a phosphate rock mine and processing facility in Florida,
operated by Mosaic Company (“Mosaic”).  Sims Crane is a contractor that was
providing crane rental and services to Mosaic at the time of these events.

In September
2015, MSHA Inspector Robert Peters was driving to Mosaic’s administrative
offices when he saw a crane on a lowboy trailer on the side of the road. [2]   The crane
was being prepared for transport by William Nasrallah, a Sims employee.  Peters
saw Nasrallah move from the cab of the crane toward the left front fender.  Peters
turned away for a moment to park, and when he looked back, Nasrallah had
descended to the ground.  The entire process took less than a minute.  After
parking, Peters approached the crane and issued a citation alleging a violation
of section 56.15005. [3]  
He testified that he issued the citation because the fender was narrow and not
designed for use as a walkway, creating a danger of falling, and that Nasrallah
had not used fall protection such as handholds while crossing. [4]   Tr. 42,
52, 71-72.

At the time, the
inspector assumed that Nasrallah had descended via the crane’s valve bank.  Tr.
37-40.  It was later determined that Nasrallah left the cab, took two or three
steps on a walkway across the fender area, then descended by way of a ladder at
the front of the crane as it was positioned on the lowboy trailer.  The crane had
three ladders: one at each front corner and one under the cab.  The inspector
was unaware of the front ladders when he issued the citation.  Tr. 63-64, 78. 

Nasrallah
maintained three points of contact while exiting the cab and descending the
ladder, but conceded that handholds were not available while crossing the
fender.  He stated that this was his normal procedure for exiting this type of crane
when loaded on a lowboy trailer and that his procedure felt safer than using
the ladder directly beneath the cab, which had a 34-inch drop from the last
step to the ground.  Tr. 116.

The area Nasrallah
crossed while travelling from the cab to the ladder was approximately seven
feet above the ground, six feet in length, three feet wide, and covered in
anti-skid material.  Tr. 43-44, 51, 98-99, 113, 124-28.  The inspector
initially estimated the width at 20 inches, but conceded that he did not
measure the width or look closely at the crane.  Tr. 43-44, 71, 80.  He was apparently
unaware of the anti-skid coating when he issued the citation.  Tr. 73.

Robert Berry,
Sims’ Safety Director, testified as to the feasibility of various forms of fall
protection when accessing or egressing this model of crane.  He explained that
tying-off is not feasible because a standard seven foot lanyard offers no
protection for someone seven feet above the ground.  He agreed that it is
impossible to maintain three points of contact when crossing the deck; however,
he testified that the crane was manufactured in compliance with ISO standards
regarding safe access and egress.  Specifically, the crane has non-skid
surfaces, handholds at key locations, and ladders at the front and at the cab. 
Tr. 93, 97-98, 103.

B.     
Summary of Relevant ISO Standards

The International
Organization for Standardization develops and publishes international standards
for a wide variety of products, services and systems.  Certification of
compliance with an ISO standard is conducted by external certification bodies. 
Two standards have been referenced in this matter.

The primary standard
at issue is ISO 2867, titled “Earth-Moving Machinery Access Systems.”  The standard
requires in part that all access system surfaces used for walking must be slip resistant. 
The standard also encourages the use of three-point support when ascending,
descending, or moving while more than one meter above the ground, but states
that two-point support is acceptable for stairways, ramps, walkways and
platforms.  Ex. R-5, §§ 4.1.5, 4.1.6.

ISO 2867 has
been incorporated into MSHA’s guidance through Public Information Bulletin
(“PIB”) No. P10-04, titled “Safe Access, Fall Prevention and Fall Protection
involving Self-Propelled Mobile Equipment.”  Ex. R-2.  The PIB lists methods
for reducing the risk of falls from mobile equipment, such as: inspecting
equipment for icy, wet or oily areas; ensuring that walkways are no narrower
than their original manufactured widths and have slip-resistant surfaces; and
ensuring that handrails are within easy reach at critical locations.  The PIB
then states that, “[i]n addition, equipment
manufacturers may be providing safe access, fall prevention and fall protection
by complying with ISO 2867.”  The PIB notes that “Operators are responsible for
providing documentation to verify that their equipment is ISO 2867 certified,” which
inspectors may then consider in determining whether safe access has been
provided.  Id.  

ISO 11660,
titled “Cranes – Access, Guards and Restraints,” addresses general safety
requirements for crane access systems, dependent on whether the access relates
to control stations or maintenance.  For example, the standard outlines the
appropriate dimensions and characteristics for ladders, handrails, walkways,
and other access system elements.  Ex. R-7.    As discussed below, the Judge
declined to consider ISO 11660 in his decision because it has not been
incorporated by MSHA into the regulatory program.  Sims has not contested that
determination.

C.     The
Judge’s Decision

The Judge found that
Nasrallah crossed the walkway on the fender of the crane to get from the cab to
the front ladder—a distance of six feet at a height of seven feet—without
handholds or other forms of fall protection.  39 FMSHRC at 121-22.

The Judge then
addressed Sims’ argument that Nasrallah’s method of egress did not violate
section 56.15005 because it was consistent with ISO and MSHA guidance.  The
Judge was persuaded that the method of egress was consistent with ISO 2867, and
found that this standard had been incorporated by MSHA.  However, he held that
PIB No. P10-04 requires operators to provide documentation certifying that
equipment is ISO compliant and that Sims had failed to provide such
documentation for the crane at issue.  Accordingly, the Judge rejected Sims’
compliance argument and found a violation.  Id. at 122-25.  He stated
that if Sims had provided documentation that the crane was ISO certified, then
pursuant to MSHA guidance, he would not have found a violation. [5]   Id.
at 127.

The Judge also
reduced the likelihood of injury to “unlikely.”  He found that the violation
contributed to a falling hazard, but that the Secretary failed to establish
that taking two or three steps across a three-foot wide, slip-resistance
surface was reasonably likely to result in a fall.     Id. at 126. 
Finally, the Judge reduced the negligence to none and imposed a $100 penalty.  Id.
  at 126-27.

II.

Disposition

The Mine Act imposes on the Secretary the burden of proving
an alleged violation by a preponderance of the evidence.  See, e.g. , Garden
Creek Pocahontas Co. , 11 FMSHRC 2148, 2152 (Nov. 1989).  In other words,
the Secretary must convince the trier of fact that the allegation is more probable
than not.  RAG Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000),
aff’d , 272 F.3d 590 (D.C. Cir. 2001).  To prove a violation of
section 56.15005,     the Secretary must show by a preponderance of the
evidence that person(s) were working where there was a danger of falling
without adequate fall protection.  If the Secretary fails to meet this burden
then there is no violation, irrespective of any counterarguments.  We find that
the Judge in this instance centered his analysis on the strengths and
weaknesses of Sims’ counterarguments without first determining whether a
preponderance of the evidence supported the Secretary’s claims.  Accordingly,
we find that the Judge improperly shifted the burden of proof. 

The Judge did find as a factual matter that Nasrallah
walked across the left fender—a distance of six feet at a height of seven feet—without
handholds, and noted that the “Secretary thus argues that Nasrallah’s travel
across the fender wheel well without maintaining three points

of contact constitutes a violation of section 56.15005.”  39 FMSHRC at

122.  However, he then moved directly into an analysis of Sims’ claim that the
method of egress complied with MSHA guidance. [6]  
Despite finding persuasive evidence that the crane complied with ISO 2867, the
Judge ultimately rejected Sims’ argument, because Sims had not provided the documentation
required by MSHA’s guidance incorporating this ISO standard. [7]   The Judge
concluded: “In the absence of such certifying documentation, I reject Respondent’s
argument that Nasrallah’s egress procedure complied with MSHA’s recommendations
in PIB No. 10-04.  I therefore find that a technical violation occurred.”  39
FMSHRC at 122-25. 

Conspicuously absent from the Judge’s decision is any
analysis of the Secretary’s underlying claim that travelling across this
particular walkway without maintaining three points of contact violates section
56.15005.  Rather than requiring the Secretary to prove by a preponderance of
the evidence that the scenario at issue presented a danger of falling
(particularly in light of the additional evidence presented by Sims), it
appears that the Judge apparently inferred that the scenario was presumptively
violative and then turned his attention to Sims’ counterargument. 

Upon rejecting the counterargument, the Judge then found a
violation, without returning to the Secretary’s underlying claim.  By doing so,
the Judge improperly placed on Sims the burden of proving that the method of
egress was compliant (to establish a non-violation), rather than requiring the Secretary
to meet his burden of proving that it was unsafe (to establish a violation). [8]

In addition to raising its burden-shifting argument, Sims
claims that the Judge legally erred by finding a violation based solely on
Sims’ failure to provide documentation of ISO compliance.  We agree that Sims’ interpretation
is a reasonable one, given the Judge’s factual findings regarding the relative
safety of the equipment and his statement that he would not have found a
violation had Sims produced the required document. [9]   Id. at
127. 

However, the Judge’s error is more fundamental.  The  Judge
was not bound by the PIB to find a violation simply because of a lack of
documentation of compliance with the PIB, just as he would not have been bound
to find no violation if documentation had been provided.  Rather, the Judge was
required to consider the PIB for what it is:  a public guidance document that
informs the agency’s judgment on the danger of falling from mobile equipment. 

The PIB itself makes clear that the ISO and J185 practices
are alternative, and not exclusive, means of demonstrating that miners are
appropriately protected against accidental falls.  The PIB expressly states
that manufacturers may comply with these industry standards “in addition” to
the measures set forth in the PIB.  Inspectors may use certification documents
to ascertain whether operators are “providing safe access, fall prevention and
fall protection.”  Ex. R-2.

In this case, the Secretary failed to establish that fall
protection beyond that provided by the design of the equipment and the
practices followed by Mr. Nasrallah (features and practices that the PIB
identifies as exemplary) was necessary.  Moreover, the operator provided
evidence that its actions were in fact consistent with the recommendations in
the PIB.   

While it would constitute legal error for a Judge to
consider the PIB binding, compliance with ISO and/or MSHA guidance can and
should be considered to the same degree as any other evidence.  Partial or full
compliance may have a bearing on the level of safety (similar to an expert
opinion or industry standard), which is relevant in determining whether a
danger of falling existed.  

If the Judge relied on the lack of compliance documentation
as Sims suggests, then his error was not that he considered compliance at all,
but rather that in considering compliance, he treated the absence of
documentation as dispositive.  However, we need not determine whether the Judge
improperly relied on the lack of documentation to find a violation because we
find that he improperly shifted the burden to the operator.  Rejection of a
counterargument should result in a violation only if the Secretary has
successfully met his burden of proof—that is, by at least providing substantial
evidence to support his position.  For the following reasons, we find the
Secretary has not done so in this instance. 

Under the particular facts of this case, the limited
evidence put forward by the Secretary does not establish a danger of falling by
a preponderance of the evidence.  The inspector emphasized that he found a
violation because the fender of the crane was narrow and not designed for use
as a walkway (despite referring to it as such), so that a stumble or misstep
could result in a fall.  Tr. 42-44, 52, 71-72.  However, he conceded that he
did not actually examine the crane.  Tr. 80.  This may explain why the
inspector incorrectly estimated the fender’s width at 20 inches rather than
36-42 inches (Tr. 43-44, 98-99, 125) and was apparently unaware of either the
anti-skid coating or the ladders at the front of the crane (Tr. 63-64, 73, 78).

Since the inspector was still under the impression during
the hearing that Nasrallah must have climbed down the valve bank, he apparently
also failed to confirm the method of egress with Nasrallah during their ten-minute
conversation after he approached the crane.  Tr. 78, see also Tr. 35-36.
 The only accurate information provided by the inspector, i.e., the only
evidence put forward in support of the violation, is the height and length of the
fender, and the absence of handholds.

Conversely, Sims’ witnesses provide a detailed description
of both the method of egress and the crane, including a discussion of the manufacturer’s
safety specifications.  Nasrallah testified that he had handholds while exiting
the cab (wheel and door handle), took two to three steps from the cab to the
front ladder without handholds, and then had handholds as he turned around and
descended the ladder at the front.  Tr. 114, 120, 135.  He testified that the relevant
portion of the crane deck was three to three and half feet wide, six feet long,
covered in anti-skid coating, and free of ice, rain, or debris.  Tr. 98-99,
113, 124-25, 128-29. 

Sims’ Safety Director testified that standard methods of fall
protection such as safety harnesses are not feasible when only seven feet above
the ground; therefore manufacturers provide alternative safety measures (present
in the crane at issue) such as anti-skid walking surfaces and handholds at key
locations.  Tr. 93, 97-98, 103.  And yet, the Secretary conducted no
cross-examination regarding the accuracy or efficacy of these alternative
safety measures, apparently relying on a simple statement from the inspector
that even if anti-skid coating was present it “wouldn’t have any bearing.”  Tr.
73.

In sum, the Secretary would have the trier of fact find a
danger of falling based solely on the seven-foot height of the fender, the lack
of handholds, and a general statement that there is always some danger of falling. 
This is so despite the bulk of the testimony indicating that Nasrallah took two
steps across a flat, three-foot wide, skid-resistant surface which was designed
for use as a walkway and which complies with safe access standards created by
the ISO and implemented by manufacturers.  Given the record, we find
substantial evidence does not support the decision that a danger of falling was
more probable than not. [10]

The Judge’s factual findings below are consistent with this
determination. [11]  
Crediting Nasrallah’s and Berry’s testimony regarding the crane, the Judge
noted that the three-foot width and anti-skid coating suggest that the fender
was intended for use as a walkway, and that such characteristics “can reduce
mobile equipment slip and fall accidents.”  39 FMSHRC at 124, 126.  He was also
persuaded that the crane was compliant with the ISO safety standards as a
factual matter, finding only that the crane failed to comply with his
understanding of the documentation requirements of the incorporating PIB.  Id.
at 124-25.  Essentially, the Judge’s factual analysis of the record suggests
that the conditions on the crane likely were not dangerous.  In
contrast, all the Secretary offers is the height of the crane, the lack of
handholds, and the inspector’s “opin[ion] that a person readying a crane for
transport could stumble at any time.”   Id. at 126. 

The Judge ultimately found a violation, apparently due to
Sims’ failure to demonstrate compliance with the PIB.  Putting aside the
Judge’s legal conclusions, however, his factual analysis clearly indicates that
the Secretary failed to establish a danger of falling by a preponderance of the
evidence.  Accordingly, we reverse the Judge’s finding of a violation and
vacate the citation. [12]  
See Am. Mine Servs., Inc. , 15 FMSHRC 1830, 1834 (Sept. 1993) (remand is
not necessary when the record supports no other conclusion).

III.

Conclusion

For the foregoing reasons, we conclude that the Judge erred
by finding a violation where the Secretary had failed to meet his burden of
proof.  Accordingly, we reverse the Judge’s decision and vacate Citation No.
8823573.

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur
R. Traynor, III, Commissioner

[1]  
The standard states: “Safety belts and lines shall be worn when persons work
where there is a danger of falling.”  30 C.F.R. § 56.15005.  This may be
satisfied by compliance with the Occupational Safety and Health Administration’s
fall protection standard, which requires employees working at a height of six
feet or more to be protected from falling by the use of guardrails, safety nets,
or personal fall arrest systems.  Ex. R-3 (MSHA Program Policy Letter No.
P14-IV-02 (Mar. 25, 2014)).

[2]   A lowboy
trailer has two drops in deck height, which allows the deck to be extremely low
compared to other trailers.

[3]   The inspector also issued an imminent danger order pursuant to section
107(a) of the Act, 30 U.S.C. § 817(a).  The Judge found the operator did
not timely contest the imminent danger order and it was therefore not before
him.   39 FMSHRC at 119 n.4.  The order was subsequently
reopened and vacated.  Unpublished Order, No. SE 2017-97-RM (Dec. 7, 2018)
(ALJ) (finding that the miner’s descent from the crane could not reasonably be
expected to result in imminent serious harm).  

[4]   MSHA
subsequently proposed a civil penalty of $270 for the alleged violation.

[5]   The Judge
was also persuaded that the method of egress was consistent with ISO 11660, but
found that the standard had no bearing on the violation because it had not been
incorporated by MSHA.  39 FMSHRC at 124.

[6]  
The Judge’s analysis described herein is embedded in the “significant and
substantial” discussion within the decision.  39 FMSHRC at 122-25; see
Mathies Coal Co. , 6 FMSHRC 1,   3-4 (Jan. 1984).  There is no separate
discussion solely addressing the fact of the violation.

[7]   It is not
clear that the PIB at issue actually requires such documentation, and
the language of the PIB strongly suggests that any such requirement arises in
the context of a demand for documentation by an inspector .  It states
that compliance “may” indicate adequate fall protection, inspectors “may”
consider documentation of such compliance when deciding whether to issue a
citation, and that operators are “responsible” for providing such documentation
to inspectors.  Ex. R-2.  In effect, it simply states that if an operator
wishes an inspector to consider ISO compliance, then the operator (presumably
as the party with access) should provide the relevant documentary evidence.   

[8]
 The Secretary suggests that Sims’ compliance argument is an affirmative
defense, such that the burden of proving the defense falls on the party
asserting it.  See Taylor v. Sturgell , 553 U.S. 880, 907 (2008).  This
is not a circumstance where the burden-shifting framework applies, and
regardless, under such a framework the Secretary must still prove his prima
facie case. 

[9]  An
alternative reading of the Judge’s opinion, as suggested by the Secretary, is
that the Judge found a violation based on the height of the fender and lack of
handholds, and only relied on the lack of documentation to reject the
compliance defense.  However, as discussed supra , whether the Judge relied
on the lack of documentation to find a violation or to reject a defense is
ultimately irrelevant.  This decision turns on the Secretary’s failure to meet
his burden of proof.

[10]  We do not suggest
that working at a certain height without handholds would never be sufficient to
establish a violation, or that working at a height of seven feet is inherently
safe.  This is particularly the case where a miner is performing work rather
than merely taking two or three steps across a slip-resistant walkway, or where
there is testimony as to a specific danger (for example wet conditions), where
the facts could support a violation of the fall protection standard.  We also
do not go so far as to positively find that there was no danger of falling.  Nothing
in our decision may be taken as a diminution of the importance of fall
protection for the safety of miners.  We only find that in this specific case,
the Secretary has failed to establish by a preponderance of the evidence that taking
two or three steps across a flat, three-foot wide, skid-resistant surface which
was designed for use as a walkway to reach a ladder with handholds at a height
of seven feet created a danger of falling. 

[11]  
Some of the factual findings discussed herein are found in the Judge’s S&S
analysis.  We recognize that the relevant standards differ, and that a finding
of no reasonable likelihood in the S&S context cannot be borrowed wholesale
to find no danger of falling.  We do not draw on the Judge’s S&S analysis,
only his factual findings.

[12]  
Because we have vacated the citation, we need not address Sims’ argument that
imposing a penalty in this instance would violate the Paperwork Reduction Act,
44 U.S.C.          § 3501 et seq .  However, we note that the Paperwork
Reduction Act explicitly does not apply to the collection of information
“during the conduct of . . . an administrative action or investigation
involving an agency against specific individuals or entities.”  44 U.S.C. § 3518(c)(1)(B)(ii). 
This would presumably include the issuance and adjudication of citations issued
to specific mine operators pursuant to the Mine Act.