Sims Crane v. Secretary of Labor

Plain-English summary

An MSHA inspector issued an imminent-danger order after seeing a Sims Crane driver walk across a crane fender about seven feet above the ground without fall protection. The Commission had reopened the late contest and remanded it for a decision on the merits. Judge Thomas P. McCarthy found that the inspector mistakenly believed the fender was only about 20 inches wide and was not designed as a walkway. The record instead showed a three- to three-and-a-half-foot-wide surface with anti-skid coating, facts the inspector could have checked before issuing the order. The Judge held that the conduct could not reasonably be expected to cause death or serious harm within a short time and vacated the imminent-danger order.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 802(j) and 817(a)
• Outcome: Imminent Danger Order No. 8823572 was vacated.
• Key point: An imminent-danger finding must account for readily available facts about the work surface and cannot rest on mistaken assumptions about its width and intended use.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SIMS
CRANE,

Contestant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent

CONTEST
PROCEEDING

Docket
No. SE 2017-0097

Mine
I.D. 08-00981

Mine:
Wingate Creek Mine

DECISION AND
ORDER

Appearances:               W.
Ben Hart, W. Ben Hart & Associates, Tallahassee, Florida for Contestant

Daniel
Brechbuhl, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado for Respondent

Before:                        Judge
McCarthy

This case is
before me after the Commission reopened and remanded a Notice of Contest of
Withdrawal Order under Section 107(a) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815(d) (the Mine Act or the Act) for further
proceedings pursuant to the Act and the Commission’s Procedural Rules. See
29 C.F.R. §§ 2700, 2700.22; Sims Crane , 39 FMSHRC ___,
No. SE 2017-97-RM (July 7, 2017). [1]

I.
STATEMENT OF THE CASE

The
alleged violation at issue in this proceeding is imminent danger Order No.
8823572. Order No. 8823572 was issued on September 23, 2015 by MSHA Inspector Robert
Peters in conjunction with 104(a) Citation No. 8823573 after Peters witnessed truck
driver William Nasrallah exit a mobile crane’s cab area and walk forward across
the left front fender without using handholds or fall protection. Sims Crane ,
39 FMSHRC 116, 120-121 (Jan. 2017) (ALJ). Order No. 8823572 alleged
that walking across the fender without fall protection presented an imminent
danger. Citation No. 8823573 alleged a significant and substantial violation of
30 C.F.R. § 56.15005 for the same conduct. The Secretary filed a Petition
for the Assessment of Civil Penalty for Citation No. 8823573 under section
105(d) of the Act, which Sims Crane (Contestant) properly contested. Id.
at 116. The proceeding was assigned to Docket No. SE 2016-0081.

The Secretary does not assess a civil
penalty for a 107(a) order, and such orders are not included in the Secretary’s
Petition for the Assessment of a Civil Penalty. The Contestant averred that it contested
Order No. 8823572 in conjunction with its contest of the Secretary’s proposed
penalty for 104(a) Citation No. 8823573 because Order No. 8823572 was
referenced by number in the text of the Citation. Id. at 119 n.4. During
pre-hearing proceedings in Docket No. SE 2016-0081, it became apparent that
Contestant had failed to file a Notice of Contest to contest Order No. 8823573
as required by the Commission’s procedural rules. 29 C.F.R. § 2700.22; see
also 30 U.S.C. § 817(e)(1); Sims Crane , 39 FMSHRC 116,
119 n.4 (Jan. 2017) (ALJ).

A hearing was held in St. Petersburg,
Florida, on November 14, 2016. During the hearing, the parties offered
testimony and documentary evidence regarding both Citation No. 8823573 and
Order No. 8823572, and the record was left open to allow the Contestant to submit
evidence supporting its argument that it properly contested Order No. 8823572
as required by the Commission’s procedural rules. See, e.g. , Tr. 11,
24, 54-56; see also 29 C.F.R. § 2700.22. Pursuant to the
Commission’s procedural rules governing simplified proceedings, the parties
presented closing arguments in lieu of submitting post-hearing briefs. 29
C.F.R. § 2700.108(e). [2]

On
December 19, 2016, Contestant filed with the Commission a motion seeking to
reopen imminent danger Order No. 8823572, which had become a final order of the
Commission pursuant to section 107(e)(1) of the Mine Act, 30 U.S.C. §
817(e)(1).

On January 13, 2017, this tribunal
issued its Decision and Order in Docket No. SE 2016-0081. [3]
As relates to Order No. 8823573, this tribunal found the following:

Order No.
8823572 was issued by MSHA inspector Robert Peters under section 107(a) of the
Act, in conjunction with Citation No. 8823573, the single citation at issue in
this proceeding. Although the parties’ stipulations reference this Court’s
jurisdiction over Order No. 8823572, the Commission’s records contain no
indication that Respondent timely filed its Notice of Contest within 30 days of
the receipt of Order No. 8823572, as required under the Commission’s procedural
rules. See Commission Procedural Rule 22, Notice of contest of
imminent danger withdrawal orders under section 107 of the Act ,
29 C.F.R. § 2700.22. The record was left open after hearing to
permit Respondent to submit such evidence. Tr. 57, 154-55. In an e-mail to my
attorney advisor on November 28, 2016, Respondent argued that it had contested
Order No. 8823572 at the same time it contested the proposed penalty assessment
for Citation No. 8823573 because the Order was referenced by number in the text
of the Citation. However, the Commission’s procedural rules provide that
Notices of Contest regarding imminent danger orders must be filed with the
Commission within 30 days of the termination of the order. Id. Even
assuming that contesting the Petition for the Assessment of Civil Penalty for
Citation No. 8823573 was sufficient to also contest Order No. 8823572,
MSHA did not receive Respondent’s Notice of Contest regarding the proposed
penalties for Citation No. 8823573 until December 23, 2015. See Ex. A, Sec’y
of Labor’s Petition for the Assessment of Civil Penalty , Docket No.
SE 2016-0081. Since Order No. 8823572 was terminated on September 23,
2015, Respondent should have filed its Notice of Contest by October 23, 2015. P.
Ex. 6. Despite the parties’ stipulations to the contrary, I find that
Respondent never timely filed its Notice of Contest regarding Order No.
8823572, and I consequently lack jurisdiction over that Order. I therefore
decline to address Order No. 8823572 in this Decision and Order.  

Sims
Crane ,
39 FMSHRC 116, 119 n.4 (Jan. 2017) (ALJ).

Contestant filed a Petition for
Discretionary Review of that Decision and Order on February 13, 2017. The
Commission granted Contestant’s Petition on February 22, 2017. Docket No. SE
2016-0081 is still pending before the Commission.

On
July 7, 2017, the Commission issued an order reopening and remanding Order No.
8823572 for further proceedings. Sims Crane , 39 FMSHRC , slip
op. at 7, No. SE 2017-97-RM (July 7, 2017). The proceeding was assigned to
Docket No. SE 2017-0097-RM. The Commission held that reopening the final order
was appropriate under Federal Rule of Civil Procedure 60(b)(1) because the
Contestant clearly expressed its understanding that it had properly contested
the imminent danger order, the Secretary of Labor’s affirmative endorsement of
the Contestant’s misunderstanding fostered this mistaken belief, and the
confluence of circumstances constituted an extraordinary mistake. Sims Crane ,
39 FMSHRC , slip op. at 4-7, No. SE 2017-97-RM (July 7, 2017).

This reopened proceeding was assigned to
me on July 10, 2017. I stayed the proceedings in Docket No. SE 2017-0097
pending the Commission’s decision in Docket No. SE 2016-0081. As it has been
more than a year since this proceeding was stayed, I now issue the following
Decision and Order.  

II. PRINCIPLES
OF LAW

Under section
107(a) of the Act, if an MSHA inspector “finds that an imminent danger exists,
[the inspector] shall . . . issue an order requiring the
operator of such mine to cause all persons . . . to be
withdrawn from” the relevant area until the danger no longer exists. 30 U.S.C. §
817(a). An imminent danger exists whenever “the condition or practice observed
could reasonably be expected to cause death or serious physical harm to a miner
if normal mining operations were permitted to proceed in the area before the
dangerous condition is eliminated.” 30 U.S.C. § 802(j); see also Wyoming
Fuel Co. , 14 FMSHRC 1282, 1290 (Aug. 1992) ; Rochester &
Pittsburgh Coal Co. , 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting E.
Associated Coal Corp. v. Interior Bd. of Mine Operations Appeals , 491 F.2d
277, 278 (4th Cir. 1974) (emphasis omitted)). For an imminent danger order to
issue under section 107(a), there must be some degree of imminence such that
the hazardous condition has a reasonable potential to cause death or serious
injury within a short period of time. Id. Although the Commission has
cautioned against narrowly construing imminent danger to include only immediate
threats, there must be some degree of imminence to support an imminent danger
order. That is, a hazard must be impending so as to require the withdrawal of
miners. Island Creek Coal Co. , 15 FMSHRC at 345.

An inspector’s issuance of a 107(a)
order is reviewed under an abuse of discretion standard, meaning that a judge “must support
the findings and the decisions of the inspector unless there is evidence that
he has abused his discretion or authority.” Wyoming Fuel , 14 FMSHRC
at 1291 ( quoting Old Ben Coal Corp. v. Interior Bd. of Mine
Operations Appeals , 523 F.2d 25, 31 (7 th Cir. 1975)); see
also Knife River Construction , 38 FMSHRC 1289, 1291 (June 2016). The
Secretary must prove, by a preponderance of the evidence, “that the inspector
reasonably concluded, based on information that was known or reasonably
available to him at the time the order was issued, that an imminent danger
existed.” Knife River Construction , 38 FMSHRC at 1291 (internal
citation omitted). The Commission has recognized that “a judge is not required
to accept an inspector’s subjective perception that an imminent danger existed,
but, rather, must evaluate whether it was objectively reasonable for the
inspector to conclude that an imminent danger existed.” Id .

III. FINDINGS OF
FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A.
Stipulations of Fact and Law

The
parties have stipulated to the following:

1.
Sims Crane is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq.

2.
The Administrative Law Judge has jurisdiction over this proceeding pursuant to
§ 105 of the Act.

3.
The citation and imminent danger order at issue in this proceeding were
properly served upon Sims Crane as required by the Mine Act.

4.
The citation and imminent danger order at issue in this proceeding may be
admitted into evidence by stipulation for the purpose of establishing its
issuance.

5.
Sims demonstrated good faith in abating the violation.

6.
The penalties proposed by the Secretary in this case will not affect the
ability of Sims to continue in business.

7.
Sims was at all time relevant to this proceeding engaged in mining activities
at the Wingate Creek Mine located in or near Myakka City, Manatee County,
Florida.

8.
Sims’ mining operations affect interstate commerce.

9.
Sims is an “operator” as that word is defined in § 3(d) of the Mine Act,
30 U.S.C. § 803(d), at the Wingate Creek Mine (Federal Mine I.D. No.
08-00981) where the contested citation and imminent danger order in this
proceeding were issued.

10.
On the date the citation in this docket was issued, the issuing MSHA
metal/non-metal mine inspector was acting as a duly authorized representative
of the United States Secretary of Labor, assigned to MSHA, and was acting in
his official capacity when conducting the inspection and issuing the citation
and imminent danger order.

Jt.
Ex. 1.

B.
Order No. 8823572

Order No. 8823572 was issued on September 23, 2015
by MSHA inspector Robert Peters, who observed the allegedly dangerous practice
as he was driving to the mine site to conduct an inspection. Tr. 33. Peters
arrived at the Wingate Creek Mine around 8:20 a.m. Tr. 33. As he drove
toward the mine’s administrative offices, he observed truck driver William
Nasrallah loading a Tadano crane onto a lowboy trailer in preparation for
removing the crane from the mine site. Tr. 33, 122.  Specifically, Peters first
saw Nasrallah near the cab of the crane, as if Nasrallah had just exited the
cab. Tr. 34-35; P. Ex. 5 at 2. Peters then saw Nasrallah walk from the cab area
forward across the left front fender of the crane. Tr. 33, 35; P. Ex. 5 at 4.

Peters pulled his vehicle over to the side of the
road, parked, exited his vehicle, and approached Nasrallah at the crane. Tr.

38. As Peters was parking, Nasrallah descended from the front of the crane to
    the ground using the stepped ladder at the front left side of the crane. Tr. 114;
    R. Ex. 8. 

After observing Nasrallah walking from the cab area
of the crane over the front fender to the front of the crane, Peters issued
Imminent Danger Order No. 8823572 based on the following practice:

Truck driver,
William Nasrallah, was observed on top of the fender of the crane number RT

481. The crane had been loaded on a low-boy trailer for transport. The driver
     was observed leaving the cab of the crane, walking across the top of the wheel
     fender to exit the crane to ground level. The drive was not using any handholds
     or alternate means of fall protection[.] There was a danger of falling 7 feet
     to the road pavement. There was an exit/access ladder at the cab area which could
     have been used to exit the crane to the ground level. This confirms an oral imminent
     danger order issued to William Nasrallah, truck driver, at 0820 hours on this
     date. [4]
     

P. Ex. 6. Peters
first issued the order orally to Nasrallah after Nasrallah descended from the
crane. The order was likewise terminated at the same time at 8:21 a.m., when
Nasrallah descended to the ground. P. Ex. 6; Tr. 58-69.

C. Peters’
Conclusion that an Imminent Danger Existed was Not Objectively Reasonable.

The Secretary
argues that Nasrallah’s travel across the crane’s wheel fender presented an
immediate danger of falling that would result in a permanently disabling injury,
and Order No. 8823572 should therefore be upheld. Tr. 39, 43, 52. Respondent
argues that Nasrallah’s ingress and egress procedure was in compliance with
MSHA requirements and the manufacturer’s recommendations, and therefore did not
present an imminent danger. Tr. 27-29.

Peters first observed Nasrallah from
about 15 yards away as he was driving onto the mine site. Tr. 33, 47. Specifically,
Peters first saw Nasrallah near the cab of the crane, as if Nasrallah had just
exited the cab. Tr. 34-35; P. Ex. 5 at 2. Peters then observed Nasrallah walk
from the cab of the crane across the left front wheel well fender towards the
crane’s valve bank, a distance of between six and seven feet. Tr. 36, 39, 51,
78-79; P. Ex. 5 at 1, 4. Although Peters did not observe Nasrallah descend the
stepped ladder at the front of the crane to reach the ground, Nasrallah
testified that his normal procedure for exiting the crane involved crossing
over the left front fender and descending via the stepped ladder at the front
of the crane, rather than using the rung ladder immediately below the cab. Tr.
38, 114; see also P. Ex. 5 at 3, 4; R. Ex. 11. The top of the fender
wheel well where Nasrallah crossed was seven feet above the ground, which
included the height of the lowboy trailer. Tr. 43; see also R. Ex. 3
(MSHA Program Policy Letter indicating that compliance with OSHA’s standard
requiring fall protection for work surfaces 6 feet or more above a lower level
may also satisfy the requirements of section 56.15005). Nasrallah’s undisputed
testimony indicates that he was not using fall protection. Tr. 120.

When Peters first saw Nasrallah on top
of the wheel fender without fall protection, he was concerned that Nasrallah
would “misstep or trip and stumble” and consequently fall off the wheel well
while crossing from the cab to the front of the crane. Tr. 36, 39, 42, 43, 51, 71,
72; P. Ex. 5 at 1, 4. Peters specifically identified the act of walking
across the fender without fall protection as the imminent danger. Tr. 71. Peters
testified that “anytime you’re walking in an area . . . you’re
subject to . . . stumbling or making a small misstep,” especially
because Nasrallah was presumably focused on his job and “he had everything on
his mind except where he was.” Tr. 44. [5]
Peters further testified that Nasrallah’s position on top of the wheel fender
was “a dangerous position to be in” because the fender was “just real narrow”
and was not designed for use as a walkway. Tr. 42, 43, 52, 72. Peters
estimated that the fender was about 20 inches wide, but he did not take a
measurement. Tr. 43-44.

As the Commission has concluded, the Secretary must
prove, by a preponderance of the evidence, “that the inspector reasonably
concluded, based on information that was known or reasonably available to
him at the time the order was issued , that an imminent danger existed.” Knife
River Construction , 38 FMSHRC at 1291 (emphasis added). Peters first
observed Nasrallah on the crane from about 15 feet away, walking across the
fender without fall protection. Tr. 38-39, 47. Peters concluded that such
circumstances presented a fall hazard, and he was concerned that Nasrallah might
continue to work on the crane without fall protection. Tr. 39, 72. Accordingly,
Peters immediately pulled over, parked his vehicle, approached the crane, and
issued Order No. 8823572. Tr. 38, 69-71. Based on Peters’ observations from 15
yards away, I am inclined to conclude that Peters’ initial belief that an imminent
danger existed was a reasonable one.

As noted, however, “a judge is not required to
accept an inspector’s subjective perception that an imminent danger
existed, but, rather, must evaluate whether it was objectively reasonable
for the inspector to conclude that an imminent danger existed.” Knife River
Construction , 38 FMSHRC at 1291 (emphasis
added). At the time that Peters issued Order No. 8823572, his subjective
perception was that Nasrallah had, without fall protection, walked across a
narrow, 20-inch-wide fender that was not designed for use as a walkway. Tr. 42,
43, 52, 72, 78-79. I find that this subjective conclusion was not objectively
reasonable because it failed to take into account information that was reasonably
available to Peters at the time that he issued the order.

Peters’ conclusion that Nasrallah’s walk across the
fender presented an imminent danger was based, in part, on his belief that the
fender was “narrow” and only 20 inches wide. Tr. 42, 75. Robert Berry, Sims
Crane’s safety director, testified that the fender was actually at least 36
inches wide, close to twice what Peters believed the width to be at the time he
issued the order. [6]
Tr. 99. Moreover, the actual width of the fender constituted information that
was reasonably available to Peters at the time he issued Order No. 8823572. He
could have measured the width of the fender. Peters did, in fact, measure the
fender’s height from the ground, but declined to take a measurement of the fender’s
width. Tr. 43-44.

Peters also mistakenly assumed that the
fender was not designed for use as a walkway, and that assumption figured
prominently in his conclusion that Nasrallah’s walk across the fender presented
an imminent danger. Tr. 42, 43, 52, 72, 78-79. Both Berry and Nasrallah,
however, credibly testified that the entire top surface of the crane, including
the three-foot-wide fender, was coated with non-skid materials and was designed
to be used as a walkway. Tr. 99, 124; see also R. Ex. 10; R. Ex. 12.
As found in my Decision and Order in Docket No. SE 2016-0081, the presence of
anti-slip material suggests that the manufacturer intended the surface for use
as a walkway.   Sims Crane , 39 FMSHRC 116, 123 (Jan. 2017) (ALJ). The
fact that Peters took photographs of the truck after issuing Order No. 8823572 indicates
that he had ample opportunity to examine the design and surface texture of the
fender to determine whether it had, in fact, been designed for use as a
walkway. [7]

In sum, I find
that Peters’ conclusion that Nasrallah’s travel across the fender presented an
imminent danger of falling was based on mistaken assumptions regarding the
width of the fender and the intended design of the fender. Peters mistakenly
assumed that the fender was only 20 inches wide and had not been designed for
use as a walkway. Factually contrary information regarding the width of the fender
and its design for use as a walkway was reasonably available to Peters at the
time he issued the order. Had he chosen to do so, Peters could have measured
the fender and examined the anti-slip surfacing before he issued the imminent
danger order. I therefore find that the Secretary has not shown, by a
preponderance of the evidence, that Peters’ subjective conclusion regarding the
imminent danger was objectively reasonable, because Peters did not take into
account information that was reasonably available to him at the time the order
was issued. See Knife River Construction , 38 FMSHRC at 1291 (“[A]
Judge is not required to accept an inspector’s subjective perception that an
imminent danger existed, but, rather, must evaluate whether it was objectively
reasonable for the inspector to conclude that an imminent danger existed.” ). Rather,
I find that Nasrallah’s conduct of walking forward across the left front fender
of the three to three-and-a-half-foot-wide, anti-skid coated surface without
using handholds or fall protection could not reasonably be expected to cause
death or serious physical harm within a short period of time. Accordingly, I conclude
that Peters abused his discretion in issuing Order No. 8823572 because no
imminent danger existed under an objective analysis that considers the totality
of the circumstances.  

IV. ORDER

For the reasons stated above, Order No. 8823572 is VACATED.

/s/
Thomas P. McCarthy

Thomas.
P. McCarthy

Administrative
Law Judge

Distribution:

Rachel
Graeber, Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
SW, Room 7T10, Atlanta, GA 30303

W.
Ben Hart, W. Ben Hart & Associates, 2916 East Park Avenue, Tallahassee, FL
32301

/ccc

[1] I have
construed the Contestant’s August 1, 2017 “Application for Vacation,
Modification, or Termination,” as a Notice of Contest.

[2] In this
decision, “Tr. #” refers to the hearing transcript, “Jt. Ex. #” refers to joint
exhibits, “P. Ex. #” refers to the Petitioner’s exhibits, and “R. Ex. #”
refers to the Contestant’s exhibits. Jt. Ex. 1, P. Exs. 1-10, and R. Exs. 1-14
were received into evidence at the hearing.

[3] Regarding the
alleged violation in Citation No. 8823573, the Secretary argued that
Nasrallah’s travel across the fender wheel well, approximately seven feet above
the paved road, without maintaining three points of contact, constituted a
violation of 30 C.F.R. § 56.15005. Sims Crane , 39 FMSHRC 116, 120
(Jan. 2017) (ALJ). The Secretary also alleged that the violation was
S&S, highly likely to cause permanent disabling injury to one person, and
the result of Respondent’s moderate negligence. Id. at 116-117. This
tribunal found that the Secretary failed to “establish by a preponderance of
the evidence that there was a reasonable likelihood that Nasrallah would fall
from the crane as he briefly took three steps” while walking on the three-foot
wide fender with a slip-resistant surface. Id. at 126. This tribunal
also found that the violation was not the result of Sims Crane’s negligence because
the Secretary failed to establish that Sims Crane knew or should have known of
Nasrallah’s violation, Sims Crane trained its employees to maintain at least
three points of contact during access or egress of mobile equipment, and MSHA’s
Policy Information Bulletin No. 10-04 references standards that allow the use
of two points of contact for support on walkways. Id. at 126-27.

[4] Nasrallah’s
undisputed testimony indicates that the crane was manufactured by Tadano. Tr. 122.
 Although the text of Order No. 8823572 indicates that the crane was an “RT
481,” that particular model number does not correspond with any of the current
production models nor the discontinued production models listed on Tadano’s
website. See https://tadanoamerica.com/ (last accessed December
7, 2018).

[5] Peters did not
know what type of work Nasrallah was performing on the crane when he first
observed Nasrallah as he was driving up to the mine site. When he first saw
Nasrallah on top of the fender, he did not realize that Nasrallah was in the
process of exiting the crane. Tr. 35, 39.

[6] Although Peters
estimated that the fender was 20 inches wide, he admitted he did not take a
measurement. Tr. 75. Both Berry and Nasrallah testified that the fender was
approximately three to three-and-a-half feet wide. Tr. 99, 125. I credit
the mutually corroborative testimony of Berry and Nasrallah, particularly
because they are more familiar with the surface and because Peters gave an
estimate and did not take a measurement.

[7] On cross
examination, Peters testified that the fact that the fender was covered in an
anti-skid material “would have had no bearing on anything.” Tr. 73. This
directly conflicts with his testimony that Nasrallah was in danger of falling
because he was walking “in a place where it wasn’t designed as a walkway,” and
I therefore find no merit in his testimony that the anti-slip material would
have had no bearing on his conclusion regarding whether or not Nasrallah’s walk
across the fender presented an imminent danger. Tr. 72.