Martin Marietta Aggregates
Martin Marietta Aggregates (FMSHRC SE 98-156-M): Train-safety violations affirmed, unwarrantable findings vacated
Apply this to your situation
This order from 1999 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
At Martin Marietta's Camak Quarry, employee Jut Anderson was struck and killed by a locomotive after railcars were pushed into a train while he cleaned railroad scales. The operator withdrew its contest of one citation and agreed to pay $267. Judge Paul Merlin affirmed the two litigated violations and their significant-and-substantial designations, but vacated the unwarrantable-failure findings and modified both matters to section 104(a) citations, reducing the negligence findings. He assessed $12,500 for the blocked-railcar citation and $2,000 for the unattended-equipment citation, for a total penalty of $14,767.
Decision snapshot
- Governing provisions: 30 C.F.R. §§ 56.14217, 56.14207, and 56.14000; 30 U.S.C. § 814(d)(1)
- Outcome: The violations and S&S designations were affirmed, the unwarrantable-failure findings were vacated, the matters were modified to section 104(a), and $14,767 in penalties was assessed.
- Key point: A violation can remain S&S even when the record does not support imputing an unwarrantable failure to the operator.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W. ,6TH FLOOR
WASHINGTON, D.C. 20006-3868
January 25, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 98-156-M
Petitioner : A. C. No. 09-00075-05529
:
v. :
MARTIN MARIETTA AGGREGATES, : Camak Quarry
Respondent :
DECISION
Appearances: Leslie John Rodriguez, Esq., Fran Schleicher, Esq.,
Office of the Solicitor, U. S. Department of Labor,
Atlanta, Georgia, for Petitioner;
Henry Chajet, Esq., Patton Boggs, Washington, D.C.,
for Respondent.
Before: Judge Merlin
This case is a petition for the assessment of civil penalties filed by the Secretary of Labor
against Martin Marietta Aggregates under section 110 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. ' 820.
This case contains three violations one of which the operator has agreed to withdraw its
contest and pay the proposed penalty in full (Stip. 4).
On October 28, 1998, a hearing was held with respect to the remaining two violations.
The transcript has been received and the parties have filed post hearing briefs.
The parties agreed to the following stipulations (Tr. 7-11) which are as follows:
1. The Federal Mine Safety and Health Review Commission has jurisdiction over this
matter because the product produced by respondent enters and affects interstate commerce.
2. The citations and order were issued by an authorized representative of the Secretary
and properly served on respondent.
3. Martin Marietta Aggregates, Camak Quarry, employs approximately 40 people and
produces approximately 1.4 million tons per year.
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4. Respondent agrees to withdraw its notice of contest of citation 4551643 and pay the
proposed penalty of $267. Petitioner agrees that the conditions cited in said citation are not in
any way related to the accident that resulted in the other two citations at issue and did not affect
the braking ability of the locomotive involved. The parties further agree that, except for the
purposes of setting future penalties under the Act by inclusion in respondent's history of
violations, the payment of the penalty and the settlement of the citation is not an admission by
respondent of any fact or violation and not usable by petitioner for any other purpose other than
the calculation of future penalties.
5. Respondent demonstrated good faith in promptly correcting the conditions alleged.
6. Prior to the accident which gave rise to this case, respondent Camak Quarry had a 0.0
injury frequency rate compared to a rate of 6.06 for the industry.
7. The proposed penalties would not affect respondent's business viability.
8. Prior to the accident which gave rise to the citations at issue in this case, respondent
had initiated and conducted a training program that met the requirements of 30 C.F.R. Part 48,
despite the fact that respondent's operations are exempt from enforcement of said training
regulations by congressional statute.
9. At the beginning of the morning shift on October 20, 1997, Jut Anderson traveled to
the loadout area and informed loadout personnel, including Billy Moss, of the schedule for the
day, including the fact that he would be cleaning the railroad scales.
10. Respondent's employee, Jut Anderson, like other key employees throughout the site,
was provided with a portable radio by respondent to assist in communications on the site despite
the lack of any MSHA requirement.
11. On October 20, 1997, at approximately 8:30 a.m., Mr. Anderson commenced the
cleaning of the railroad scales.
12. On the morning of October 20, 1997, Mr. Robert Hobbs stated to MSHA's
inspectors that Mr. Jut Anderson did not communicate with him either by radio or in person that
he would be cleaning the scales.
13. Mr. Robert Hobbs stated to MSHA inspectors that on the morning of October 20,
1997, he followed his normal procedure and performed part of his job by pushing the four railcars
that were blocking the crossing toward the scale to clear the crossing.
14. As Mr. Hobbs pushed the four railcars along the track to clear the crossing, they hit
the train, composed of the locomotive and ten attached cars, causing the train to move forward
and critically injuring Mr. Jut Anderson, who was sitting on the track on the scales approximately
18 inches in front of the running locomotive.
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15. The locomotive involved in the accident had two separate braking system control
levers: One, an air brake system for the locomotive itself, and, two, another air brake system for
railcars attached to the locomotive. These two systems were operated by two separate levers in
the locomotive cab.
16. The railcars involved in the accident had two separate braking systems on
each car: One, an air brake system that attaches by hoses to other cars and ultimately to the
locomotive, and a mechanical braking system that is set or released by turning a wheel on each
railcar.
17. Immediately following the accident the locomotive and railcars were moved to permit
recovery of the victim.
18. The MSHA inspectors who investigated the accident and issued the citations did not
examine the locomotive or railcars involved until the day following the accident.
19. The investigators who issued the citations determined through their interviews that
Jut Anderson, the accident victim, communicated his activities and hazards present on the track to
all of the loadout personnel both in person and using his radio but failed to communicate with Mr.
Robert Hobbs on the morning of the accident.
20. Mr. Slaton acknowledges that the citation issued pursuant to his direction for an
alleged violation of Section 56.14217 was issued for both the locomotive and the railcars because
the standard covers both railcars and locomotives.
The stipulations were accepted with the caveat that a determination regarding the scope
and effect of a mandatory standard was a matter for me to decide (Tr. 11).
Citation No. 4551641 dated, October 22, 1997, was issued pursuant to section 104(d)(1)
of the Act, 30 U.S.C. ' 814(d)(1), and charges a violation of 30 C.F.R. ' 56.14217 for the
following conditions or practices:
An accident occurred at this mine on October 20, 1997, severely injuring
the employee. He died of these injuries the following day. The victim was seated
approximately 3 feet from a 125 ton Alco RS-11 locomotive cleaning the rail scale
with compressed air being supplied by the locomotive. The locomotive and the 10
rail cars attached to it were not blocked against movement. Four loaded rail cars
were pushed into the locomotive and attached cars causing the locomotive to run
over and pin the victim beneath the locomotive. Mine management was aware the
scales were to be cleaned but failed to assure that the train was blocked against
movement. The conduct of the operator was aggravated and constituted more
than ordinary negligence. This is an unwarrantable failure.
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30 C.F.R. ' 56.14217 sets forth the following:
Parked railcars shall be blocked securely unless held effectively by brakes.
Order No. 4551642 dated, October 22, 1997, was issued pursuant to section 104(d)(1) of
the Act, supra, and charges a violation of 30 C.F.R. ' 56.14207 for the following conditions or
practices:
An accident occurred at this mine on October 20, 1997, severely injuring
the employee. He died of these injuries the following day. The victim was seated
approximately 3 feet from a 125 ton Alco RS-11 locomotive cleaning the rail scale
with compressed air being supplied by the locomotive. The locomotive and the 10
rail cars attached to it were left unattended and the parking brakes on the
locomotive or rail cars were not set. Four loaded rail cars were pushed into the
locomotive and attached cars causing the locomotive to run over and pin the
victim beneath the locomotive. Mine management was aware the scales were to be
cleaned but failed to assure the parking brakes were set. The conduct of the
operator was aggravated and constituted more than ordinary negligence. This is
an unwarrantable failure.
30 C.F.R. ' 56.14207 sets forth the following:
Mobile equipment shall not be left unattended unless the controls are
placed in the park position and the parking brake, if provided, is set. When parked
on a grade, the wheels or tracks of mobile equipment shall be either chocked or
turned into a bank.
Statement of Facts
The essential facts are as follows: At the loadout point in the operator=s Camak Quarry,
railcars were loaded with crushed stone and then gravity dropped to the storage area (Tr. 34, 114,
115). After the cars were dropped, a loader was routinely used to push them forward so they
would attach to a locomotive which previously had been parked a few feet in front of the scales
(Tr. 115, 140). The cars were then weighed at the scales and thereafter the locomotive moved
them to a point where they were to be transported from the mine (Tr. 56, 165). On October 20,
1997, the decedent, Jut Anderson, was the leadman of the loadout crew (Tr. 139, 247, 302). He
told the plant foreman, Donny Reese, and the loadout crew that he was going to clean the scales
(Stip. 9, Tr. 180-181, 293-294). He did not, however, tell Robert Hobbs, the loader operator
(Stip. 12). On the shift in question, Billy Moss, a member of the loadout crew, brought the
locomotive to the rail scales (Tr. 113, 172). Moss parked the locomotive 18 inches to 3 feet
before the scales and set the locomotive=s brake (Tr. 196). Subsequently, ten railcars were
dropped and attached to the locomotive (Tr. 140, 173, 256). Anderson asked Jason Jones to
assist him in cleaning the scales by shoveling debris off the scales and later by digging a ditch to
remove water under the scales (Tr. 170, 247-248, 251). Anderson used compressed air from the
locomotive to clean the scales. Hoping to increase the air pressure being used to clean the scales,
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he told Jones to release the air brake on the locomotive and Jones did so (Tr. 248, 250, 300).
Anderson was in front of the locomotive, cleaning the scales and Jones was on a backhoe (Tr.
248-249, 268, 271). At that time four cars which were previously dropped from the loadout had
come to a stop and were blocking an intersection (Tr. 141). Unaware that Anderson was on the
track cleaning the scales, Hobbs used a loader to push the four cars into the ten cars (Tr. 141).
The impact of the four cars caused the ten cars and the locomotive to move forward (Tr. 141).
The locomotive hit and killed Anderson (Stip. 14, Tr. 141).
Duplication
The operator asserts that the citations are duplicative, arguing that 30 C.F.R. ' 56.14217
covers the charges involving both the locomotive and the railcars. This assertion is without merit.
Section 56.14217 specifically applies to parked railcars and does not refer to locomotives. When
the mandatory standards delineate a specific requirement applicable to locomotives they use the
term Alocomotive.@ 30 C.F.R. ' 56.14218. Similarly, when the standards apply a requirement to
trains, it uses that term. 30 C.F.R. ' 56.14219. Indeed, an examination of section 56.14217 and
the sections that follow it, demonstrates that the mandatory standards are precise in their
descriptions of the equipment they cover. When the standards impose requirements upon many
types of equipment, a comprehensive definition is given to which the mandates apply. This is the
case with mobile equipment which is described in broad terms including rail mounted equipment
that is capable of moving. 30 C.F.R. ' 56.14000. This definition plainly includes locomotives.
Therefore, the requirements of 30 C.F.R. ' 56.14207 relating to mobile equipment apply to the
locomotive in this case.
The inspectors apparently believed that Section 56.14217 applied to both the locomotive
and the railcars. However, as I made clear at the hearing, I am not bound by their interpretation
(Tr. 11). It is however, disturbing that as enforcement under the Mine Act and its predecessor,
the Coal Act, enters its fourth decade, inspectors come to the hearing supposedly prepared to
testify but are confused about the standards they cite and hold views that conflict with those of
the Solicitor in the case.
The operator also argues that Section 56.14207 does not apply to locomotives because
the inspectors admitted that locomotives do not have parking brakes. I reject this argument and
do not believe the testimony of the inspectors supports the operator=s position. Inspector Wriston
focused on the fact that the brakes in question were the locomotive=s only brakes and not on
whether the brakes were service brakes or parking brakes (Tr. 86). And he concluded by stating
that the parking brake was the service brake (Tr. 95). Similarly, the testimony of Inspector Slaton
does not support the operator=s position. He also testified that the parking brake was the service
brake (Tr. 191-192). The operator presented no evidence of the differences between service
brakes and parking brakes. And it did not come forward with any evidence showing that the same
brake cannot serve as both a service brake and a parking brake depending upon the
circumstances. What the record does show is that when the locomotive was parked or came to a
stop, the brake was set (Tr. 109, 113-114, 145, 147, 198, 269). I hold that this brake was a
parking brake for the purposes of Section 56.14207.
Citation No. 4551642
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A. Existence of a Violation
As set forth above, this citation was issued because the ten railcars attached to the
locomotive were not blocked or secured effectively by brakes. When asked whether the cars were
blocked, Moss who had parked the locomotive was evasive. He first asked for the question to be
repeated and then said he did not understand the question (Tr. 119). But when queried from the
bench, Moss finally agreed that he did not block the wheels of the railcars (Tr. 120). Hobbs, the
loader operator, testified that past practice was not to block railcars (Tr. 149). He stated that the
locomotive was blocked only at the end of the shift (Tr. 149). Inspector Slaton said that there
was no evidence of any blocks (Tr. 176). At the hearing, the lack of any conflict on the matter of
blocking was noted from the bench (Tr. 149). I find that the railcars were not blocked.
The critical issue, therefore, is whether the railcars were held effectively by the brakes.
The parties addressed this issue solely in terms of whether the brakes on the railcars had been set.
Their evidence on this question is unpersuasive. The inspectors testified that Parsons, the
production manager and member of senior management, told them that the brakes on the railcars
were not set (Tr. 30-31, 38-40, 173, 193). Parsons was not present at the quarry at the time of
the accident, but went there shortly afterwards (Tr. 69-70). However, the Secretary did not call
Parsons as a witness, although he was still in the area and working for another company
(Tr. 308). Hearsay evidence is admissible in administrative proceedings but the probative weight
to which it is entitled depends upon the circumstances. 29 C.F.R. ' 2700.63(a); REB Enterprises
Inc., 20 FMSHRC 203, 206 (March 1998); Mid-Continent Resources, Inc., 6 FMSHRC 1132,
1135, 1139 (May 1984); Ideal Cement Co., 13 FMSHRC 1346, 1350 n.1 (September 1991).
Since Parsons was not called as a witness, he was not available for cross examination on whether
the notes and testimony of the inspectors adequately and fairly set forth what he told them. In
addition, Parsons himself had no first hand knowledge of what happened. He was only repeating
what other individuals had told him. Because Parsons was not called as a witness, there was no
opportunity to ask him to identify his sources of information. Accordingly, even if the inspectors
accurately wrote down what Parsons told them, there is no way to test the accuracy of Parsons=
statements or his sources of information. Under the circumstances, I determine that the notes and
testimony of the inspectors regarding Parsons are not entitled to any probative weight.
Every employee of the operator who testified, denied knowing if the brakes had been set.
Moss testified that he did not know if the brakes on the railcars were set (Tr. 118).1 Jones also
denied knowing whether anyone set the brakes, although the inspectors testified that he told them
the brakes were not set (Tr. 40, 43-44, 193, 261). So too, Hobbs said he did not set the brakes
1
When Moss was asked questions by the Solicitor, he had to be admonished not to look
at operator=s counsel (Tr. 114, 131). And when operator=s counsel objected to a question by the
Solicitor, Moss immediately suffered a loss of memory or became unable to understand simple
questions (Tr. 110-113, 118, 119). His difficulty in testifying might be attributable to the fact that
as the locomotive operator, he was responsible for setting brakes on the railcars. Both Reese and
Hobbs stated that the locomotive operator set brakes on the railcars (Tr. 145-146, 296).
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and did not know if anyone did (Tr. 144-145). In addition, these individuals said they did not
know who had dropped the ten railcars and brought them forward to become attached to the
locomotive (Tr. 110, 116, 140, 256). These on site witnesses seem curiously ignorant of what
must have been going on before their eyes. Reese testified that as a general matter, the operator
of the locomotive set the brakes and the rail crew helped (Tr. 295-296). Reese also stated that
brakes were not set on every car, but perhaps on every second or third car (Tr. 296-297).
However, in this instance he did not know whether the brakes on any railcars were set (Tr. 304).
It is strange that the plant foreman identified by the operator as the supervisor of the loadout area,
did not know and did not ask about such an important matter.
In sum, therefore, none of the evidence is definitive or convincing with respect to whether
the brakes were set. However, it is possible to determine the existence of a violation without
relying upon the unpalatable evidence presented by the parties. This is so because the parties have
incorrectly framed the issue to be resolved and misunderstood the question that needs to be asked
and answered. The mandatory standard requires that railcars be held effectively by brakes. If
brakes are not set, they obviously will not hold the cars effectively. But even if brakes are set,
they must be set so as to hold the cars effectively. Therefore, the issue is not whether brakes were
set, but whether the railcars were held effectively by the brakes.2 The ten parked railcars moved
forward when the four additional cars were pushed into them (Stip. 14, Tr. 141). As Stipulation
No. 13 recognizes, Hobbs stated that in pushing the four cars he was acting in accordance with
normal procedures. At the hearing Hobbs testified that for 24 years he had been pushing cars
from the railroad crossing down toward the scale (Tr. 142). His statements are uncontradicted.
Therefore, there was nothing unusual about this case where four cars were pushed forward to
couple with ten cars already attached to the locomotive. In this instance, however, the motion of
the four cars caused the ten cars to move forward and push against the locomotive which then
moved ahead, running over Anderson and killing him. Accordingly, the brakes did not hold the
2
There was evidence that general industry practice was to set every third brake (Tr. 92,
221). However, even assuming this were so, the mandatory standard is not premised upon
general industry practice. It requires that the brakes hold the cars effectively. Testimony was
uncontradicted that the cars would have been held effectively if brakes on every car had been set
(Tr. 148, 199).
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railcars effectively or the cars would not have moved.3 As set forth below, the brake on the
locomotive was not set, but that did not cause the cars to move forward in the first instance. The
cars may have kept on moving because the locomotive brake was not
3
At an early point in the hearing, operator=s counsel stated that he would produce
witnesses who would testify in the operator=s favor on the interpretation of Aeffectively@ (Tr. 89).
But he did not do so. Inspector Wriston testified that effectively holding would be holding under
the working circumstances that were present (Tr. 89). He further stated that effectively holding
means holding when a sitting piece of equipment is hit by other equipment, if such an occurrence
is normal activity (Tr. 89-90). As noted, Hobbs= testimony demonstrated that pushing the four
cars forward with the loader was normal activity.
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set, but they moved initially because their brakes, whether set or not, did not hold them
effectively. This was a violation of the mandatory standard.
B. Significant and Substantial
A violation is significant and substantial, if based on the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature. Arch of Kentucky, 20 FMSHRC 1321, 1329 (December
18, 1998); Cyprus Emerald Resources, Inc., 20 FMSHRC 790, 816 (August 1998); National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January
1984), the Commission held that in order to establish a significant and substantial violation of a
mandatory standard the Secretary must prove : (1) the existence of an underlying violation; (2) a
discrete safety hazard-that is, a measure of danger to safety-contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature. The Commission=s
requirements for a finding of significant and substantial have been recognized and accepted by the
courts. Buck Creek Coal Inc. v. FMSHRC, 52 F.3d 133, 135-136 (7th Cir. 1995); Austin
Powder, Inc. v. Sec. of Labor, 861 F.2d 99, 103 (5th Cir. 1988); Consolidation Coal Co. v.
FMSHRC, 824 F.2d 1071, 1075 (D. C. Cir. 1987). The Commission itself has declined the
invitation to change the test. United States Steel Mining Co., 18 FMSHRC 862, 865-866 (June
1996); Energy West Mining, 15 FMSHRC 1836, 1839 (Sept. 1993); Texas Gulf Inc., 10
FMSHRC 498, 500 n. 4 (April 1988).
In this case the first requirement is met because there was a violation. The second element
also is satisfied because the violation contributed to the danger that the cars would move forward
and together with the locomotive hit someone. I also find that the failure of the brakes to
effectively hold the cars created a reasonable likelihood of an injury and the reasonable likelihood
that the injury would be of a reasonably serious nature. The cleaning of the scales required
Anderson and Jones to work on or next to the rails directly in front of the locomotive. In fact, a
fatality occurred. The movement of the cars was the precipitating factor setting off a chain of
events which ended in Anderson=s death. The violation was significant and substantial and very
serious.
C. Negligence and Unwarrantable Failure
As explained in detail infra, I find that Reese, the plant foreman, was the responsible
supervisor of the loadout area. It was his obligation to insure that the railcars were held effectively
by the brakes. However, Reese did not know whether brakes on the railcars had been set (Tr. 304).
In addition, he stated that as a general matter brakes were not set on every car, but just on some (Tr.
296). Brakes could be set on every other car or every third car (Tr. 296-297). Based on this
testimony it appears that the standard for determining the number of brakes to set apparently was very
flexible. Therefore, as the person in charge, Reese had a particular duty to make certain that
sufficient brakes were set to hold the cars effectively. This crucial determination was not one that
could be left to a non supervisor. I find that Reese was negligent in not properly performing his
supervisory tasks and that as a member of mine management, his negligence is attributable to the
operator.
I do not however, believe that the negligence in this case rises to the level required for a
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finding of unwarrantable failure. The Commission has defined unwarrantable failure as
aggravated conduct constituting more that ordinary negligence. Emery Mining Corp.,
8 FMSHRC 1997, 2001 (Dec. 1987). It is characterized by such conduct as reckless disregard,
intentional misconduct, indifference or serious lack of reasonable care. Id. at 2003-04; Cyprus
Emerald Resources, supra at 813; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb.
1991).
The inspectors found unwarrantable failure because they said the operator=s past practice
was not to set the brakes on railcars. However, the evidence they provided was not convincing.
Inspector Wriston gave conflicting testimony. He first stated that Jones had told him that cars
were dropped without the brakes being set, but then admitted he did not definitely know what the
past practice was (Tr. 60-61, 74). Subsequently, he stated that Parsons had told him about past
practice(Tr. 84). Inspector Slayton also testified that Parsons told him that past practice was not
to set brakes on the railcars. As explained above, this testimony from the inspectors has no
probative value because Parsons was not called as a witness. Moreover the inspectors= notes do
not indicate that Parsons was asked or said anything about past practice. Inspector Slayton also
testified that Hobbs told him that past practice was not to set the brakes, but here again, the
inspector=s notes do not contain such information (Tr. 187-188, 194). Inspector Slayton stated
that Moss had told them about past practice, but then said he was not sure that Moss had said this
(Tr. 194).4 If the inspectors had been told about past practice in their interviews as they alleged,
their notes surely would have contained such information. The fact that the notes are silent about
past practice renders the testimony of the inspectors suspect and unworthy of belief. Accordingly,
the evidence of record does not establish the operator=s past practice with respect to setting
brakes on railcars. Since there is nothing else in the record to support the allegation of
unwarrantable failure, that finding must be vacated.
Order No. 4551642
Existence of a Violation
As set forth above, the cited mandatory standard, 30 C.F.R. ' 56.14207, requires that a
locomotive shall not be left unattended unless the controls are placed in the park position and the
parking brake is set. Inspector Wriston testified in accordance with his notes that he had been
told by Parsons and Jones that the brake had not been set (Tr. 42-44). However, Inspector
Slayton=s notes state that Moss had parked the locomotive and set the brake when he parked it
4
The inspectors differed in their accounts of their interview with Moss. Inspector
Wriston said they only asked Moss two questions, one of which was whether he agreed with
everything Jones had said (Tr. 79-80). But Inspector Slayton testified about many statements that
Moss allegedly made to him in the interview (Tr. 172-173, 200). These differences reflect poorly
upon the veracity of the inspectors.
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(Exh. 11). Inspector Slayton also testified that Moss told him the brake had been set (Tr. 197-
198, 207). Moss testified that when he parked the locomotive, he set the brake (Tr. 109,122).
Finally, Jones testified that Anderson told him to release the brake (Tr. 248, 250). I find Jones a
credible witness on this point and I accept his testimony that he released the brake. Obviously,
the brake could not have been released unless it was set. There is no dispute that the locomotive
was unattended when the accident occurred. Accordingly, I find that a violation occurred.
B. Significant and Substantial
The four step test required for a finding of significant and substantial has already been set
forth. In this case the first requirement has been met. The second requirement is also met because
the release of the locomotive brake contributed to the danger that the locomotive and cars would
move forward and hit someone. I further find that the released brake created a reasonable
likelihood that a reasonably serious injury would result from the hazard that had been created.
The cleaning of the scales required Anderson and Jones to work on or next to the rails directly in
front of the locomotive. Indeed, a fatality occurred. Although the rail cars were not held
effectively by their brakes, the fact that the locomotive was not braked was a major factor in the
continued forward movement of the entire train which resulted in the accident and fatality.
Accordingly, I conclude that the violation was significant and substantial and very serious.
Negligence and Unwarrantable Failure
Inspector Wriston testified that the conduct of the operator was aggravated and consti-
tuted more than ordinary negligence because Anderson, the decedent, was mine management and
put himself in a position of great danger and failed to inform others of the work he was going to
perform (Tr. 72-73). Inspector Slayton also testified that there was an unwarrantable failure
because a supervisor was involved and others were exposed to the hazard (Tr. 188).
As set forth above, the locomotive=s brake was not set because Anderson told Jones to
release it so more air pressure would be available to clean the scales. Based upon his knowledge
and experience, Anderson surely knew that releasing the brake created the risk that the locomo-
tive would move forward, especially since cars were being dropped at the time and could be
expected to be pushed forward to couple with the locomotive. In addition, he failed to use
available two way communication equipment to notify the loader operator that he was cleaning
the scales (Stip. 10, 12, 19, Tr. 98-99, 233, 305-306). Under these circumstances Anderson
displayed an extraordinary degree of recklessness, carelessness, indifference and wilful miscon-
duct. His actions fit all the terms used by the Commission to describe unwarrantable failure and
they constitute extreme negligence.
The issue is whether Anderson=s very high degree of negligence and unwarrantable failure
are imputable to the operator. Under Commission precedent, the negligence of a rank and file
miner cannot be imputed unless the operator failed to discharge its responsibilities with respect to
training, supervision or discipline. U.S. Coal Inc., 17 FMSHRC 1684, 1686 (Oct. 1995); Fort
Scott Fertilizer-Cullor Inc., 17 FMSHRC 1112, 1116 (July 1995). However, the negligence of a
supervisor is imputable to the operator unless the operator can demonstrate that no other miners
were put at risk by the supervisor=s conduct and that the operator took reasonable steps to avoid
that particular class of accident. Nacco Mining Co., 3 FMSHRC 848, 849 (April 1981). The
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Commission also has stated that an agent=s unexpected intentional misconduct may result in a
negligence finding against the operator where the lack of care exposed others to risk or harm.
Rochester & Pittsburgh, supra at 198. It is also well settled that an agent=s conduct may be
imputed to an operator for unwarrantable failure purposes. Whayne Supply Company,
19 FMSHRC 447, 451 (March 1997); Rochester & Pittsburgh, supra at 197-198.
There is no dispute that Anderson received all applicable training and that he conducted
safety meetings with the loadout crew (Tr. 208, 236, 249, 276-277, 284-285, 287-289). There is
no suggestion that the operator did not fulfill its responsibilities with respect to supervision or
discipline of Anderson. Accordingly, if Anderson was a rank and file miner, his negligence would
not be imputable to the operator.
If Anderson was a supervisor, it must be determined whether the defense under Nacco
would be available to the operator. Jones testified that he was working in the immediate area
when the accident happened and that not long before the accident he had been on the tracks
working on the scales with Anderson to clean the scales (Tr. 247-248). At the moment of the
accident Jones was on the backhoe adjacent to the track (Tr. 258, 271, 275). The locomotive
brushed up against the backhoe, although it did not cause any damage or injury. However,
Reese, the foreman, agreed that it was possible for Jones to have been standing on the track
(Tr. 299). Based upon the foregoing, Jones= proximity to danger from the unbraked locomotive is
clear. He was in the immediate area and might well have been standing on the tracks. Even on
the backhoe, he was in danger. The locomotive could have hit the backhoe harder than it did or
Jones might have fallen off. Anderson=s actions put Jones at serious risk. The Nacco defense
would not apply.
The determinative issue, therefore, is whether Anderson was a rank and file miner or a
person charged with responsibility for the supervision of miners or the operation of all or part of a
mine. The Commission has considered this issue on several occasions.
In U.S. Coal Inc., supra, a certified electrician suffered burns to his hand, when he failed
to deenergize or lock out equipment before he began his repairs. The Commission held that he
was not the operator=s agent for purposes of imputing negligence. Although the electrician was
authorized to tell miners to stop working on dangerous equipment and to remove such machinery
from service, the Commission held that this evidence standing alone was insufficient to support a
finding that the electrician was an agent of the operator. The Commission stated that in this type
of case, it did not rely upon the job title or qualifications of a miner, but upon whether his function
was crucial to the mine=s operation and involved a level of responsibility normally delegated to
management personnel. Id. at 1688. The Commission stated that the electrician=s negligent
conduct occurred while he was repairing equipment, a routine assignment not encompassing
managerial or supervisory responsibilities. Id.
In Ambrosia Coal & Construction Company, et al, 18 FMSHRC 1552 (Sept. 1996), the
Commission decided that an individual was an agent of the operator when he accompanied
inspectors on their inspections and attended close out conferences as the operator=s representa-
tive, gave work orders to abate citations, was responsible to see that equipment repairs were
made, was paid a salary like management and did not receive extra pay for overtime like rank
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and file miners, and was treated by the mine owner as a person in a responsible position. Id. at
1560-1561. Under these circumstances the Commission did not view as determinative the fact
that he did not have the authority to recommend hiring or firing, discipline employees, change
work schedules, or adjust pay and terms of employment. Id.
Thereafter, in Whayne Supply Company, supra, the Commission held that an experienced
repairman who needed little supervision and helped less experienced employees, was not a
supervisor. The repairman had been fixing a bulldozer, but failed to secure certain parts of the
equipment and as a result became pinned under the equipment and was killed. He was working
alone and not supervising anyone when the accident occurred. The Commission stated that an
individual does not become a supervisor merely because he possesses greater skills and job
responsibilities than his fellow employees. Id. at 451. And the Commission identified traditional
indicia of supervisory responsibility as including the power to hire, discipline, transfer, and
evaluate employees, none of which were possessed by the repairman in that case. Id. The
Commission further noted that there was no evidence that the repairman controlled the mine or
any portion thereof. Id. The Commission stated that if the repairman could be considered
supervisory on the basis of his duty to evaluate a problem and repair it without supervision,
potentially all repair personnel would fall into the supervisory category. Id. at 452.
More recently, in REB Enterprises Inc., supra, the Commission decided that a leadman on
a highwall was not an agent of the operator where he did not have the authority to hire and fire
employees, did not assign equipment to employees and was not given any instructions regarding
discipline of employees. In addition, the Commission noted that there was no evidence that the
leadman was directly responsible for controlling acts of the miners on the highwall, that he was
responsible for their performance, or that he was responsible for the safety of miners and for
ensuring their compliance with the mandatory standards. Id. at 211-212.
The facts of this case are similar in some respects to those already considered by the
Commission. However, the instant situation viewed in its entirely, is distinguishable from prior
cases and appears to fall somewhere between those where agency and supervision were not found
and those where they were. Anderson assigned specific tasks to the miners in the loadout area
and he had the authority to tell them how he wanted the job done and to stop them if he did not
like what they were doing (Tr. 139, 303-304). On the day of the accident he told members of the
loadout crew what tasks they should perform (Tr. 108, 139, 247). However, it was Reese, the
foreman, who decided and told Anderson what work was to be done each day (Tr. 303). And if
there was a problem with a miner Anderson, who could not discipline anyone, went to Reese
(Tr. 151, 264). Anderson could not change an individual=s job or the equipment on the job
without permission (Tr. 282-283). Also, Reese visited the loadout area three or four times during
the shift to check on how things were going (Tr. 154, 267, 281). In addition, Anderson could not
hire, fire or evaluate miners in the loadout area and he was paid at an hourly rate (Tr. 151, 153-
154, 264, 281). There is no evidence that he acted or held himself out as the operator=s represen-
tative in any capacity or that it was up to him to decide what action to take to abate citations. In
sum therefore, Anderson had somewhat more authority than the individuals in those cases where
the Commission has held there was no agency or imputable negligence. REB Enterprises Inc.,
supra; Whayne Supply Company, supra; U.S. Coal Inc., supra. But he did not have the level of
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responsibility which the Commission has heretofore held sufficient to establish that an agency
relationship existed. Ambrosia Coal & Construction Company, supra.
After careful consideration of the evidence, I find that Anderson did exercise a certain
degree of control over the loadout area and the miners who worked there. I further find,
however, that the control which he exercised and the responsibilities which were given to him
were tightly circumscribed. He did not decide what work was to be done and he did not set work
priorities. Although he assigned specific tasks and stopped work being done improperly, he did
not resolve any disputes occurring on site. And he was subject to constant supervision since the
foreman visited the area several times during the shift. He possessed none of the indicia
traditionally associated with a supervisory position such the authority to hire, fire, discipline or
evaluate. The fact that he was paid on an hourly basis demonstrates that the operator did not look
upon him as member of management. Under these circumstances, I conclude that Anderson was
not a supervisor and that therefore, his negligence cannot be imputed to the operator. I further
conclude that although Anderson had some authority, it cannot fairly be said that he was an agent
in control of a mine or part of a mine and that therefore, his unwarrantable failure conduct cannot
be attributed to the operator. Finally, since the general practice was to set the brake and because
the brake was initially set in accordance with that practice, the operator was not negligent.
Remaining Criteria
The Commission has held that each Commission judge must expressly consider and make
findings with respect to all six criteria. In addition, the Commission has made clear that the judge
bears the responsibility of insuring that the record is sufficient to allow him to discharge his
responsibilities. Sec. Labor on behalf of Kenneth Hannah, et al. v. Consolidation Coal Co., 20
FMSHRC 1293, 1302 (Dec. 15, 1998). If the record or the judge=s decision is found wanting,
reversal or remand will result. Id.
As set forth above, the parties have stipulated to good faith abatement. I accept the
stipulation and find that the operator demonstrated good faith in attempting to achieve rapid
compliance after notification of the violation.
As set forth above, the parties have stipulated to the quarry=s number of employees and
annual tonnage. I accept the stipulation and based thereon find that the operator is large in size.
As set forth above, the parties have stipulated to the quarry=s accident frequency rate and
the accident frequency rate for the industry. I accept the stipulation and find that the operator has
a very good history of previous violations.
As set forth above, the parties have stipulated that imposition of a penalty will not affect
the operator=s ability to continue in business. I accept the stipulation and find that imposition of a
penalty will not affect the operator=s ability to continue in business.
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Penalty
After careful consideration of the evidence of record and my findings and conclusions
based thereon and with due regard for the six criteria, I determine that a penalty of $12,500 for
Citation No. 4551641 and a penalty of $2,000 for Order No. 4551642 are appropriate.
The post-hearing briefs filed by the parties have been reviewed. To the extent the briefs
are inconsistent with this decision, they are rejected.
Order
It is ORDERED that in accordance with stipulation 4 the finding of a violation for
Citation No. 4551643 is AFFIRMED.
It is further ORDERED that a penalty of $267 be ASSESSED for Citation No. 4551643.
It is further ORDERED that the finding of a violation for Citation No. 4551641 is
AFFIRMED.
It is further ORDERED that the significant and substantial designation for Citation
No. 4551641 is AFFIRMED.
It is further ORDERED that the finding of unwarrantable failure for Citation
No. 4551641 be VACATED.
It is further ORDERED that Citation No. 4551641 be MODIFIED from a 104(d)(1)
citation to a 104(a) citation and to reduce negligence from high to ordinary.
It is further ORDERED that a penalty of $12,500 be ASSESSED for Citation No.
4551641.
It is further ORDERED that the finding of a violation for Order No. 4551642 be
AFFIRMED.
It is further ORDERED that the significant and substantial finding for Order No. 4551642
be AFFIRMED.
It is further ORDERED that the finding of unwarrantable failure for Order No. 4551642
be VACATED.
It is further ORDERED that Order No. 4551642 be MODIFIED from a 104(d)(1) order
to a 104(a) citation and to reduce negligence from high to none.
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It is further ORDERED that a penalty of $2,000 be ASSESSED for Order No. 4551642.
It is further ORDERED that the operator PAY a total penalty of $14,767 within 30 days
of the date of this decision.
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Leslie John Rodriguez, Esq., Fran Schleicher, Esq., Office of the Solicitor, U. S. Department of
Labor, 61 Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303
Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M Street, NW., Washington, DC 20037-1350
/gl
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