Secretary of Labor v. U.S. Coal, Inc.

Plain-English summary

U.S. Coal operated the No. 3-2 Mine. A certified electrician was injured while repairing a continuous mining machine without deenergizing or locking it out. MSHA cited U.S. Coal under standards requiring electrical equipment to be deenergized and disconnecting devices to be locked out and tagged. The Commission held that the electrician was a rank-and-file employee, not the operator's agent, because his routine repair work did not involve managerial responsibility or supervision of miners. It reversed the judge's imputation of gross negligence to U.S. Coal and remanded for assessment of appropriate civil penalties.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.509 and 30 C.F.R. § 75.511
• Outcome: The imputation of negligence was reversed, and the case was remanded for assessment of appropriate civil penalties.
• Key point: Certification, qualification, and authority to take equipment out of service do not alone make a rank-and-file electrician an operator's agent.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                    October 30, 1995

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 93-119
:
U.S. COAL, INC. :

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

                                       DECISION

BY THE COMMISSION:

     This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977,

30 U.S.C. ' 801 et seq. (1988) (AMine Act@ or AAct@). The issue is whether the negligence of a
non-supervisory certified electrician is imputable to his employer, U.S. Coal, Inc. (AU.S. Coal@),
for civil penalty purposes. Administrative Law Judge William Fauver concluded that the
electrician=s negligence was imputable. 16 FMSHRC 649 (March 1994) (ALJ). The Commission
granted U.S. Coal=s petition for discretionary review of the judge=s decision. For the reasons that
follow, we reverse and remand.

                                            I.

                           Factual and Procedural Background

     On April 16, 1992, Lonnie Phillips, a certified electrician qualified by U.S. Coal to do

electrical work at its No. 3-2 Mine, removed the electrical panel covers on a continuous mining
machine and began working on the panel board with a screwdriver. He did not deenergize or lock
out and tag the continuous miner before beginning his repair.1 16 FMSHRC at 649; Tr. 18. As a
result, Phillips suffered electrical shock and burns to his hand. 16 FMSHRC at 650. The accident

   1
      Electrical equipment is locked out and tagged by placing a padlock through a hole in the

disconnecting device and attaching a tag stating that work is being performed on the circuit. Tr.

19. The padlock prevents reenergization of the electrical equipment while the work is performed.
    Tr. 26-27.

Page 2

was investigated by MSHA Inspector Don A. McDaniel, who issued two citations to U.S. Coal
alleging significant and substantial (AS&S@) violations of 30 C.F.R. '' 75.509 and 75.511.2
MSHA filed a petition for assessment of civil penalty, which sought to impute Phillips= negligent
conduct to the operator.

     The judge determined that Phillips violated the cited standards, that the violations were

S&S, and that Phillips was grossly negligent. 16 FMSHRC at 651-52. Citing Mettiki Coal Corp.,
13 FMSHRC 760 (May 1991), and Rochester and Pittsburgh Coal Co., 13 FMSHRC 189
(February 1991) (AR&P@), the judge concluded that Phillips= negligence was imputable to U.S.
Coal because a A>designated person to conduct electrical examinations of electrical equipment= is
regarded as an agent of the operator and his negligence is imputable to the operator.@ 16
FMSHRC at 652. The judge noted Nacco Mining Co., 3 FMSHRC 848, 850 (April 1981), in
which the Commission declined to impute a supervisor=s negligence because the operator had
taken reasonable steps to avoid an accident and the supervisor=s conduct did not expose other
miners to risk. 16 FMSHRC at 652. The judge found the Nacco defense inapplicable because the
electrician endangered other miners. Id. Accordingly, the judge affirmed the citations and
ordered payment of civil penalties in the amount of $8,000. Id. at 652-53.

                                            II.


   2
       Section 75.509 provides:

                   All power circuits and electric equipment shall be
            deenergized before work is done on such circuits and equipment,
            except when necessary for trouble shooting or testing.

       Section 75.511 provides, in part:

            Disconnecting devices shall be locked out and suitably tagged by
            the persons who perform [electrical work on circuits or
            equipment] . . . .




                                             2

Page 3

                                            Disposition

    U.S. Coal contends that Phillips= negligence is not imputable to it and that the judge erred

in determining that Phillips was its agent. U.S. Br. at 11-13. It asserts that it had acted to ensure
compliance and that the accident resulted from Phillips= idiosyncratic and unforeseeable conduct,
which was not associated with any management function on his part. Id. at 10, 12-13.
Alternatively, the operator argues that, even if Phillips were considered its agent, the Nacco
defense applies because it had taken precautions to avoid the accident and other miners were not
placed at risk by Phillips= conduct. Id. at 13-16. It also asks the Commission to take judicial
notice of the Secretary=s proposed rule regarding decertification of certified and qualified persons
(59 Fed. Reg. 54,855 (1994) (to be codified at 30 C.F.R. pts. 42, 48, 70, 71, 75, 77, & 90)
(proposed Nov. 2, 1994)), asserting that the proposed rule should be considered in relation to the
Secretary=s argument that certified persons are to be considered agents of corporate operators.
U.S. Supp. F. at 1-2. The Secretary responds that substantial evidence supports the judge=s
determination that Phillips was the operator=s agent and his negligence was imputable to the
operator. S. Br. at 5-10. He asserts that Phillips was an agent because he was qualified and
designated by the operator to perform electrical work and had supervisory authority to order
miners to stop operating dangerous machinery and to remove machinery from service. Id. at 6-7.
The Secretary contends that the Nacco defense does not apply because Phillips= conduct exposed
other miners to risk of injury. Id. at 9-10. The Secretary replies that U.S. Coal mischaracterizes
the proposed rule on decertification and that the preamble to the rule does not mean that certified
persons are not agents when the operator is a corporate operator. S. Supp. F. at 1-2.

    Under the Mine Act, an operator is liable for its employees= violations of the Act and the

mandatory standards. E.g., Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (March 1988);
aff=d on other grounds, 870 F.2d 711 (D.C. Cir. 1989); Asarco, Inc., 8 FMSHRC 1632, 1634-36
(November 1986), aff=d, 868 F.2d 1195 (10th Cir. 1989); Southern Ohio Coal Co., 4 FMSHRC
1459, 1462 (August 1982) (ASOCCO@). Further, absent a Nacco defense, the negligent actions of
an operator=s Aagent@3 are imputable to the operator for the purpose of assessing civil penalties.4
Mettiki, 13 FMSHRC at 772; R&P, 13 FMSHRC at 194-98; SOCCO, 4 FMSHRC at 1463-64.
However, A[t]he conduct of a rank-and-file miner is not imputable to the operator in determining
negligence for penalty purposes.@ Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116
(July 1995) (citing SOCCO, 4 FMSHRC at 1464). ARather, the operator=s supervision, training,

    3
      Section 3(e) of the Mine Act defines Aagent@ as Aany person charged with responsibility

for the operation of all or a part of a . . . mine or the supervision of the miners in a . . . mine . . . .@
30 U.S.C. ' 802(e).
4
Section 110(i) of the Mine Act requires that in assessing civil penalties the Commission
consider six criteria, one of which is Awhether the operator was negligent.@ 30 U.S.C. ' 820(i);
see generally Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1150-51 (7th Cir. 1984).

                                                 3

Page 4

and disciplining of [rank-and-file] miners is relevant.@ Id. (citing SOCCO, 4 FMSHRC at 1464;
Western Fuels, 10 FMSHRC at 261).

                                           4

Page 5

    Here, the judge concluded that, because Phillips was the operator=s agent, his negligence

should be imputed to the operator. We examine whether substantial evidence supports the judge=s
finding that Phillips was U.S. Coal=s agent.5

     The Secretary attempts to establish that Phillips is the operator=s agent by arguing that he

is certified and designated by the operator as Aqualified@ to perform electrical work,6 and that such
a qualified person Ais cloaked with the responsibility to discover electrical malfunctions and
correct them, and his failure to discover or properly repair electrical malfunctions exposes miners
to a multitude of dangerous violative conditions and to the very real danger of injury or death.@ S.
Br. at 8.

   U.S. Coal=s superintendent, Johnny Mack Smitty, testified that U.S. Coal employs two

   5
       The Commission is bound by the terms of the Mine Act to apply the substantial evidence

test when reviewing an administrative law judge=s factual determinations. 30 U.S.C.
' 823(d)(2)(A)(ii)(I). The term Asubstantial evidence@ means Asuch relevant evidence as a
reasonable mind might accept as adequate to support [the judge=s] conclusion.@ Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). While we do not lightly overturn a judge=s factual
findings and credibility resolutions, neither are we bound to affirm such determinations if only
slight or dubious evidence is present to support them. See, e.g., Krispy Kreme Doughnut Corp. v.
NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d
1255, 1263 (7th Cir. 1980).
6
The Mine Act and the Secretary=s mandatory standards require that repair and
maintenance of electrical equipment be performed only by Aqualified@ persons. 30 U.S.C.
' 865(f) & (g); 30 C.F.R. '' 75.511 & 75.512; see also 30 U.S.C. ' 878(b)(2); 30 C.F.R.
' 75.153.

                                             5

Page 6

supervisory electricians to whom rank-and-file maintenance employees report. Tr. 59, 61, 63-64.
Phillips is not one of those supervisors but, rather, a rank-and-file maintenance employee; he is
responsible only for Aupkeep@ on his section, i.e., finding and fixing electrical problems. Id. The
record indicates that, prior to the accident, the operator of the continuous miner had sent for
Phillips because the miner was malfunctioning. 16 FMSHRC at 649; Tr. 17.

    Inspector McDaniel testified that Phillips performed rank-and-file electrical work on the

section (Tr. 35) but that, in his opinion, electricians are part of mine management. Tr. 23, 27, 35.
McDaniel=s opinion is based on his general belief that electricians are authorized to order miners
to stop operating dangerous machinery and to order machinery taken out of service for repairs.
Tr. 35-36. No other evidence supports the judge=s finding that Phillips was the operator=s agent.

                                             6

Page 7

    In Mettiki, the Commission determined that a rank-and-file miner was acting as an agent

while conducting required electrical examinations in the mine. 13 FMSHRC at 772. Similarly, in
R&P, the Commission concluded that a rank-and-file miner was acting as the operator=s agent
while he performed a statutorily mandated weekly examination. 13 FMSHRC at 194-96. In both
cases, the Commission relied, not upon the job title or the qualifications of the miner, but upon his
function, which was crucial to the mine=s operation and involved a level of responsibility normally
delegated to management personnel. Here, Phillips= negligent conduct occurred while he was
repairing a continuous miner, a routine assignment not encompassing managerial responsibility or
the supervision of other miners. There is no record evidence that Phillips was engaged in work
entailing Aresponsibility for the operation of all or a part of a . . . mine or the supervision of the
miners in a . . . mine . . . .@ 30 U.S.C. ' 802(e).

     We hold, as a matter of law, that Phillips= certification as an electrician, his qualification by

the operator to repair and maintain electrical equipment, and his authority, as understood by the
inspector, to take that equipment out of service if he found it in dangerous condition, are
insufficient, standing alone, to support a finding that he is an agent of the operator. Thus, under
the facts of this case, we conclude that Phillips was not functioning as an agent of U.S. Coal when
he repaired the continuous miner. Accordingly, we reverse the judge=s determination that Phillips=
gross negligence is imputable to U.S. Coal.7

    7
        In light of our disposition, we do not reach U.S. Coal=s other arguments.



                                                7

Page 8

                                          III.

                                      Conclusion

   For the foregoing reasons, we reverse the judge=s imputation of negligence to U.S. Coal

and remand for assessment of appropriate civil penalties.

                                 Mary Lu Jordan, Chairman




                                        Joyce A. Doyle, Commissioner




                                        Arlene Holen, Commissioner




                                        Marc Lincoln Marks, Commissioner




                                           8