Mar-Land Industrial Contractor, Inc.

Plain-English summary

Mar-Land Industrial Contractor was cited after an employee fell while working about 52 feet above a plant floor and later died. The Commission affirmed that Mar-Land violated the safety-belt standard because the employee did not properly secure the line, even though the belt and lines were not defective. It reversed the judge's high-negligence finding, concluding that the record did not support requirements for written instructions or constant supervision and that Mar-Land had taken corrective training and enforcement steps. The Commission treated the negligence as ordinary, vacated the $5,000 penalty, and remanded for reassessment.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15005
• Outcome: The violation was affirmed, high negligence was reversed, the $5,000 penalty was vacated, and the case was remanded for a new penalty assessment.
• Key point: An operator remains liable when required fall-protection equipment is not properly used, but negligence must be based on supported legal and factual requirements.

Full text (FMSHRC public release)

CCASE:
MSHA V. MAR-LAND INDUSTRIAL
DDATE:
19920527
TTEXT:
May 27, 1992
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 90-117-M
v.

MAR-LAND INDUSTRIAL
CONTRACTOR, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Holen, and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
presents
the issues of whether Mar-Land Industrial Contractor, Inc. ("Mar-Land") violated
30 C.F.R. § 56.15005, a mandatory safety standard requiring the wearing of
safety
belts and lines when persons work where there is a danger of falling and of
whether that violation was caused by Mar-Land's negligence. Following an
evidentiary hearing, Commission Administrative Law Judge Avram Weisberger
concluded that Mar-Land had violated 30 C.F.R. § 56.15005, that the violation
was
"significant and substantial" ("S&S") and, further, because a fatality resulted
from the violation, that it was of high gravity. 13 FMSHRC 333 (March
1991)(ALJ). The judge also concluded that Mar-Land's conduct involved high
negligence, based on his determination that there was insufficient training and
supervision of employees as well as previous violations of the same standard.
Based on these factors, he assessed a penalty of $5,000. Id. at 337.
Mar-Land's petition for review challenges the judge's finding of a
violation of the Mine Act and his determination of high negligence, asserting
that the worker involved was under the influence of cocaine and that Mar-Land
did, in fact, provide adequate training in the use of safety equipment. Mar-Land
does not contest the S&S finding of the judge and, thus, that issue is not before
the Commission. 30 U.S.C. § 823(d)(2)(A)(iii).
I.
Factual Background and Procedural History
The facts of this case are essentially undisputed. Mar-Land is a general
contractor, who, at the time of the accident, was performing structural steel
work at the Ponce Cement Plant, owned by Puerto Rican Cement Company.

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On February 19, 1990, Cecilio Caraballo was preparing to attach steel
channeling to another steel cross member approximately 52 feet above the plant
floor. Co-workers, who were between 8 and 10 feet away, observed Caraballo
standing on the third level of the plant engaged in tying off his safety lines.
Tr. 26. These co-workers each testified that Caraballo tied one safety rope that
had carabiner hooks at both ends around a large vertical steel beam at the edge
of the floor. According to these eye-witnesses, he then attached another rope
to the rope tied around the beam.
Shortly after Caraballo finished attaching his safety lines, he leaned back
on the rope to test it, the lines gave way and he fell 12 feet onto a rotating
kiln and then down another forty feet to the concrete floor below. Emergency
medical attention was given to him almost immediately but Caraballo was
pronounced dead a short time later at a local hospital.
The Mine Safety and Health Administration ("MSHA") conducted an
investigation into the cause of the fatal accident. The MSHA inspector found
that the belt was properly worn by Caraballo and that the belt and the lines were
not defective. Based on the findings of that investigation, Inspector Roberto
Torres-Aponte issued a citation pursuant to section 104(a) of the Act, alleging
a violation of 30 C.F.R. § 56.15005.(Footnote 1) The citation stated:
A fatal accident occurred at this operation on 02-19-90,
when an employee of a Contractor fell from 52 ft. to the
ground, while [he] was working outside the pre-heater
third level tower which was under construction. The
victim was wearing a safety belt and line at the time
the accident occurred, however the line was not secured
to prevent him to fall [sic].
The inspector determined that the violation was S&S and the result of high
negligence by the operator.
The judge found that Caraballo's belt was worn properly and that he had a
rope properly attached to the belt. He found further that Caraballo had wrapped
a second rope around a beam to which the first rope, attached to his belt, was
also attached and that all items were in good and operable shape immediately
after the accident. 13 FMSHRC at 334. However, the judge found that when
Caraballo leaned back, he fell because the rope was not properly secured to the
beam. Based on this fact, the judge concluded that "the belt was not being worn
and used in a safe fashion in violation of Section 56.15005." Id.
The judge found high negligence on four grounds. The first was the degree
of training received by the employees in the use of safety belts. The judge
found that weekly safety meetings were held, including one on the day of the
accident, in which the use of safety belts was discussed. Nonetheless, the judge
discounted this training, finding that the record did not establish the "specific

1 That section provides in relevant part: "Safety belts and lines shall be
worn when persons work where there is danger of falling..." 30 C.F.R. §

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56.15005.
~756
content" of the meetings or what "specifically" was told to the employees in the
form of "specific instructions or information" regarding the "specific manner"
in which the belts should be used. In a footnote, the judge noted the testimony
of an employee who stated he had been employed by Mar-Land for about a month
prior to the accident and had received no training in the use of safety
belts.(Footnote 2) 13 FMSHRC at 334-35.
Second, the judge found that the employees had not received written
instructions on the use of safety belts. Third, the judge found no evidence
"that supervisors were present to observe or supervise the manner in which
Caraballo wrapped the rope around the beam, and attached his belt to it." 13
FMSHRC at 335. He went on to find that, despite evidence of a training session
the day of the accident, "when Caraballo attached or attempted to attach his belt
to the beam there were no supervisors present." Id.
Finally, the judge found high negligence based on MSHA's determination of
the existence of prior notice to the operator. The judge noted that MSHA had
previously issued two imminent danger orders to the operator for violations of
the same standard because employees were wearing their safety belts but not tying
off. The judge found that Mar-Land had not taken corrective action as a result
of the imminent danger orders to ensure that employees properly utilized their
safety belts and lines to tie off. 13 FMSHRC at 336.
The judge rejected Mar-Land's defense that Caraballo was impaired on the
day of his death as a result of his use of cocaine. The judge noted that a
toxicological analysis indicated there was no cocaine present in the nasal
passages or in the blood and there was no evidence of how much cocaine was
ingested or how long prior to the accident it had been ingested. The judge found
that, although the analysis indicated .30 mcg/ml benzoylecgonine (the metabolite
of cocaine) in the kidneys, there was no evidence in the record that the level
of benzoylecgonine was sufficient to significantly impair Caraballo's
concentration and ability to properly secure his safety belt. 13 FMSHRC at 336-
37.
II.
Disposition of Issues
A. Violation of the Mandatory Standard
Mar-Land does not contend that Caraballo's actions in tying off were in
compliance with the regulation's requirements. Rather, Mar-Land's principle
argument is that Caraballo was negligently and disobediently under the influence
of illegal drugs, that his faculties were impaired, that Mar-Land has strict
rules dealing with drug use and that, as a result, it cannot be liable for the
consequences of Caraballo's failure to act properly under the circumstances,
based on North American Coal Corporation, 3 IBMA 93 (April 1974) and
Peabody Coal
Corp., 1 MSHC 1676 (1976).

Page 4

2 However, another witness testified, in answer to a question from the
judge, that this witness was at the safety meeting on February 19, 1990 in
which safety belts and lines were discussed. Tr. 99.
~757
Mar-Land argues that those cases set forth a defense to a citation "when
the failure to follow a safety regulation is entirely the result of the
employee's d[i]sobedience or negligence and the operator establishes that it has
a system of safety instruction." PDR at 7. Alleging that Caraballo was under
the influence of cocaine, Mar-Land argues that the employee was entirely at fault
and Mar-Land is not strictly liable for the violation.
In urging affirmance of the judge's finding of violation, the Secretary
argues that Mar-Land's violation of the standard is established for two reasons.
First, the Secretary asserts that Mar-Land admitted liability in its Petition for
Discretionary Review. The second reason is that the standard at issue in North
American is different from the standard applicable in this case in that the
standard in North American required only that employees be "required to wear"
specific equipment and the standard in this case requires that the equipment "be
worn." According to the Secretary, the strict liability scheme of the Act
imposes liability on the operator for the violation, notwithstanding Mar-Land's
attempt to defend based on North American. The Secretary argues that North
American has been severely limited by Southwestern Illinois Coal Corp., 5
FMSHRC
1672 (October 1983). We agree.
In Southwestern, the Commission drew a distinction between the wording of
the standard in North American and the wording of the standard at issue here.
The Commission explained that the health and safety standard at issue in North
American provided only that an operator must require that its employees wear
safety equipment. The Commission held that, under that standard, an operator
could avoid liability if it could demonstrate that it required the wearing of the
safety equipment and, indeed, enforced that policy with its workforce.
Here, as in Southwestern, the standard goes beyond an obligation that
"employees shall be required to wear...." The standard in this case states that
"belts and lines shall be worn..." and the Commission has held that when belts
and lines must be worn, they must be worn properly. See Austin Power Inc., 9
FMSHRC 2015 (December 1987), affirmed 861 F.2d 99 (5th Cir. 1988).
Even if an employer could demonstrate that it had a policy requiring the
wearing of belts but was unsuccessful, through no fault of its own, in securing
employee compliance, the policies themselves are not relevant in determining the
fact of violation. This is true even where the failure is the result of employee
misconduct. The fact that belts are not worn properly is a violation under this
standard for which the operator is liable irrespective of employee misconduct.
See United States Steel Corporation, 1 FMSHRC 1306 (September 1979); Mid-
Continent Coal and Coke Co., 3 FMSHRC 2502 (November 1981); Allied
Products v.
FMSHRC, 2 MSHC 1633 (5th Cir. 1982)(significant employee misconduct no

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defense
to liability); and Great Western Electric Company, 5 FMSHRC 840 (May
1983)(subjective condition of miner ignored in determining fact of violation).
A defense such as the one proffered by Mar-Land does not eliminate an
operator's liability for failing to insure that employees wear belts and lines,
and do so properly, when there is a danger of falling. In Southwestern, supra.,
the Commission held that language found in North American is limited to the
standard found in that case "and does not create an employee disobedience or
~758
negligence exception to the liability without fault structure of the Mine Act."
Southwestern at 1674-75. Thus, the employee's disobedience is not a relevant
consideration for determining the fact of violation under this standard.
We must conclude based on the evidence of record that Caraballo failed to
properly use his belt and lines. The inspector testified that the lines were in
proper condition and that the belt had been properly worn. Although three other
workers testified that Caraballo tied off, they offered no explanation as to how
he could have fallen. While we do not suggest that a finding of violation is
required, ipso facto, upon the occurrence of an accident, (see Kerr-McGee
Corporation, 3 FMSHRC 2496 (November 1981)), in this case, no other
reasonable
explanation exists for Caraballo's fall other than his failure to properly tie
the second rope to the support beam. Consequently, we affirm the judge's finding
of Mar-Land's liability for Caraballo's failure to properly wear the belts and
lines as required by section 56.15005.
Based on this determination, we need not reach the second issue raised by
the Secretary, i.e., whether counsel for the operator admitted in the Petition
for Discretionary Review that a violation had occurred by stating that the belt
was not properly tied to the beam.
B. Negligence
The judge found that Mar-Land was highly negligent because: (1) the record
did not establish the "specific content" of the safety meetings or what
"specifically" was told to the employees regarding the "specific instructions or
information" concerning the "specific manner" to use the belts; (2) the employees
had not received written instructions; (3) supervisors were not present to
observe or supervise the manner in which Caraballo wrapped the rope around the
beam or attached his belt; and, (4) the operator had prior notice based on two
imminent danger orders for violations of the same standard. 13 FMSHRC at
334-36.
Mar-Land broadly challenges the judge's high negligence finding by pointing
to its training programs and the absence of a regulatory requirement to provide
written instructions and immediate supervision of employees' use of safety belts
and lines. Mar-Land argues that it did in fact have a training program that
includes weekly safety instruction on the use of equipment, that witnesses called
by the Secretary testified to the existence of the safety meetings and that
safety belt use was discussed during those meetings, including one on the day of

Page 6

the accident. Mar-Land argues that neither the statute nor the regulations
require the issuance of written instructions or the presence of supervisors for
safety belt use.
The record does not contain substantial evidence supporting the judge's
determination that Mar-Land was highly negligent. Although one of the riggers
testified that he had not received any training during the month that he had been
employed by Mar-Land prior to the accident, the record also contains evidence to
the contrary, as well as evidence that, as a general rule, employees did receive
instructions on how to use their safety equipment. Witnesses for both the
Secretary and the operator testified that talks were given each Monday morning
addressing the proper use of safety equipment including belts and lines. No
authority has been found, and the judge cites none, suggesting that training in
~759
addition to that indicated in the record is required to satisfy the obligations
of the operator under the 30 C.F.R. Part 48 training rules.
There is no foundation in the law or the regulations for the judge's
imposition of a requirement that safety instructions be provided to employees in
writing or that supervisors be present each time an employee ties off. A finding
of negligence based on the judge's ex post facto imposition of these requirements
is erroneous as a matter of law.
The judge found that, based on two prior imminent danger orders issued for
violations of the same standard within the previous two years, Mar-Land was on
notice "that employees wearing belts had not tied them off." He further found
that Mar-Land had not taken proper steps to rectify the problem, but the
undisputed evidence in this case indicates that Caraballo was making every
attempt to use his safety equipment correctly and to tie off properly.
There is evidence also that training and enforcement of safety policies had
improved in response to the second imminent danger order. For example, in
January 1990, shortly after the second order, Mar-Land began to break down its
company-wide weekly safety meetings into subgroups so that employees could be
instructed more specifically according to the work they would be performing.
There is also evidence in the record that at the same time, workers were
disciplined for not tying off. Substantial evidence does not support the judge's
conclusion that, having received notice, Mar-Land had taken no action to remedy
the problem.
It must be noted that evidence exists in the record demonstrating some
degree of negligence on the part of Mar-Land. As indicated above, the judge
noted the testimony of one witness who had been working for the company as a
rigger for one month prior to the accident and had received no instructions
concerning the use of safety belts. Moreover, this witness was hired after the
time Mar-Land contends that improvements were made to the safety training
program. Under these circumstances we conclude that Mar-Land was, at least to
some degree, negligent. We consider the degree of negligence with respect to the
violation in issue to be ordinary.
~760

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III.
Conclusion
Accordingly, we affirm the judge's finding of violation herein but reverse
his finding of high negligence and vacate his penalty assessment. We remand to
him for reassessment of a civil penalty in light of the considerations set forth
above.

Ford B. Ford, Chairman

Richard V. Backley, Commissioner

Joyce A. Doyle, Commissioner

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner