Martin Marietta Aggregates

Plain-English summary

A miner died when a locomotive moved forward while he was cleaning scales at Martin Marietta Aggregates' Camak Quarry. The ALJ found a significant-and-substantial violation of the rule requiring mobile equipment controls to be placed in park and the parking brake set, but found that the miner's negligence was not imputable to the operator because he was not the operator's agent. The Commission affirmed that finding and upheld the $2,000 penalty, declining to reinstate the Secretary's unwarrantable-failure and higher-negligence allegations. One commissioner concurred separately, and the chairman dissented.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14207
• Outcome: The ALJ's violation finding and $2,000 penalty were affirmed.
• Key point: A rank-and-file miner's negligence is not automatically imputed to the operator for unwarrantable-failure and penalty purposes.

Full text (FMSHRC public release)

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

                                      May 31, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 98-156-M
:
MARTIN MARIETTA AGGREGATES :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                       DECISION

BY: Riley, Verheggen, and Beatty, Commissioners

    In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), former Chief Administrative Law
Judge Paul Merlin1 determined that Martin Marietta Aggregates (“MMA”) committed a
significant and substantial (“S&S”) violation of 30 C.F.R. § 56.14207.2 21 FMSHRC 76, 85
(Jan. 1999) (ALJ). He found that, although the violation was caused by a miner’s high degree of
negligence, the miner’s negligence was not imputable to MMA for penalty assessment and
unwarrantable failure purposes, because the miner was not an agent of MMA. Id. at 85-88. The
Commission granted the Secretary of Labor’s petition for discretionary review challenging the
judge’s finding that the miner’s negligence was not imputable to MMA. The United Steel
Workers of America (“USWA”) and the National Mining Association (“NMA”) sought and were
granted amicus status in this proceeding. For the following reasons, we affirm the judge’s
decision.

   1
       Judge Merlin retired on December 31, 1999.
   2
     Section 56.14207 provides in pertinent part that “[m]obile equipment shall not be left

unattended unless the controls are placed in the park position and the parking brake, if provided,
is set.”

                                    22 FMSHRC 633

Page 2

                                             I.

                           Factual and Procedural Background

     MMA operates the Camak Quarry, a stone quarry in Camak, Georgia. At the loadout

point in the quarry, railcars were loaded with crushed stone and gravity-dropped to a storage
area before being weighed on scales. After the cars were dropped, a loader was routinely used to
push them forward so they would attach to a locomotive parked a few feet in front of the scales.
The cars were weighed on the scales and then the locomotive moved them to a dispatch point
from where they were transported from the mine. On October 20, 1997, the decedent, Jut
Anderson, was the leadman of the loadout crew. At the start of the shift, plant foreman Donny
Reese gave Anderson his work assignment for the day, which included cleaning the scales with a
shovel. Later in the morning, Anderson told foreman Reese and the loadout crew that he was
going to clean the scales. He did not, however, tell Robert Hobbs, the loader operator. On the
shift in question, Billy Moss, a member of the loadout crew, parked the locomotive 18 inches to
3 feet before the scales and set the air brake. Subsequently, ten railcars were gravity-dropped and
attached to the locomotive. Anderson asked Jason Jones, a backhoe operator, to assist him in
cleaning the scales by shoveling debris off the scales and later by digging a ditch to drain water
under the scales. Anderson used compressed air from the locomotive to clean the scales. Hoping
to increase the air pressure from the locomotive, he asked Jones to release the air brake on the
locomotive and Jones did so. 21 FMSHRC at 78-80; Tr. 246, 293.

    Later, Anderson was in front of the locomotive, cleaning the scales, and Jones was in his

backhoe. At that time, four cars previously gravity-dropped from the loadout area had come to a
stop and were blocking an intersection. Unaware that Anderson was on the track cleaning the
scales, Hobbs used a loader to push the four cars out of the intersection and into the ten cars that
were attached to the locomotive. The impact of the four additional cars caused the first ten cars
and the attached locomotive to move forward. The locomotive hit and killed Anderson. 21
FMSHRC at 80.

    Following an investigation of the accident, the Department of Labor’s Mine Safety and

Health Administration (“MSHA”) issued an order under section 104(d)(1) of the Mine Act, 30
U.S.C. § 814(d)(1), alleging a violation of section 56.14207. The order alleged that the violation
was S&S, resulted from MMA’s unwarrantable failure, and involved a high level of negligence
by the operator. MSHA proposed a civil penalty of $45,000. Pet. for Assessment of Civil
Penalty at 2. At trial, MMA disputed the amount of the proposed penalty and the Secretary’s
imputation of Anderson’s negligence to it for penalty assessment and unwarrantable failure
purposes. MMA Post-hearing Br. at 2-3, 27-31.

   The judge found an S&S violation of section 56.14207. 21 FMSHRC at 84-85. He held

that Anderson displayed extreme negligence in instructing Jones to release the locomotive’s
brake and in failing to notify the loader operator that he was cleaning the scales. Id. at 85.

                                     22 FMSHRC 634

Page 3

However, in considering whether to impute Anderson’s negligence to the operator for purposes
of deciding whether the violation was caused by an unwarrantable failure and for assessment of
the appropriate penalty, the judge determined that, although Anderson assigned specific tasks to
other miners, he was not MMA’s agent. Id. at 85-88. Accordingly, the judge determined that
Anderson’s negligence was not imputable to MMA, vacated the Secretary’s unwarrantable
failure allegation, and declined to find that the violation resulted from MMA’s high negligence.
Id. at 88-89. The judge assessed a penalty of $2,000. Id. at 89.

                                             II.

                                         Disposition

    The Secretary contends the judge erred in finding that Anderson’s negligence was not

imputable to MMA for purposes of an unwarrantable failure determination and penalty
assessment. S. Br. at 7. She argues that the judge erred in failing to accept her interpretation
that, under the plain language of section 3(e) of the Mine Act,3 30 U.S.C. § 802(e), the term
“agent” includes a miner such as Anderson who has the authority to assign tasks to other miners
and the responsibility of keeping an area of the mine safe. S. Br. at 9-16; S. Reply Br. at 13. She
also argues that, even if the meaning of section 3(e) is ambiguous, the judge erred by not
deferring to her interpretation of the term “agent.” S. Br. at 13 n.7; S. Reply Br. at 13-15. The
Secretary contends that, under both existing case law and common law principles of agency, the
judge erred in concluding that Anderson was not an agent. S. Br. at 16-22.

    MMA responds that substantial evidence supports the judge’s finding that Anderson was

not an agent and that his negligence should not be imputed to MMA. MMA Br. at 7-13. It
argues that, even if Anderson was an agent, his negligence should not be imputed to MMA
because his negligence did not endanger any other persons. Id. at 14-16. The operator contends
that the Secretary’s interpretation of section 110(i), 30 U.S.C. § 820(i), is not entitled to
deference because the Commission has authority under the Mine Act to impose penalties under
that provision. Id. at 17-22. It also argues that imputing Anderson’s negligence to it for penalty
assessment and unwarrantable failure purposes is contrary to common law principles of agency.
Id. at 23-24.

    Amici USWA and NSA both contend that the judge correctly found that Anderson was

not an agent of the operator. USWA Br. at 2, 5-6; NSA Br. at 8-10. USWA argues that the
judge erred in not finding high negligence and unwarrantable failure by MMA because the
operator failed to appropriately train and supervise the rank-and-file miners in the loadout area.
USWA Br. at 6-7. NSA contends that the Secretary is not entitled to deference concerning her
interpretation of section 110(i) because the Mine Act specifically authorizes the Commission to

   3
     Section 3(e) provides that an agent is “any person charged with responsibility for the

operation of all or a part of a coal or other mine or the supervision of the miners in a coal or other
mine.” 30 U.S.C. § 802(e).

                                     22 FMSHRC 635

Page 4

assess penalties under that provision. NSA Br. at 13-16. It further argues that imputing
Anderson’s negligence to MMA would discourage operators from seeking the highest safety
standards. Id. at 11.

   Under Commission precedent, the negligence of a rank-and-file miner is not imputable to

the operator for the purposes of penalty assessment or unwarrantable failure.4 Whayne Supply
Co., 19 FMSHRC 447, 451, 453 (Mar. 1997); Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC
1112, 1116 (July 1995); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982)
(“SOCCO”). However, it is well established that the negligence of an operator’s agent is
imputable to the operator for penalty assessment and unwarrantable failure purposes. Whayne,
19 FMSHRC at 451; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-97 (Feb. 1991)
(“R&P”); SOCCO, 4 FMSHRC at 1463-64. The main issue in this case is whether substantial
evidence5 supports the judge’s finding that Anderson was not an agent of MMA, and, as a
consequence, that his negligence was not imputable to the operator for unwarrantable failure and
penalty assessment purposes.6

   A.      Deference

 We note that the Secretary’s argument regarding deference is not properly before the

Commission.7 Section 113(d)(2)(A)(iii) of the Mine Act provides that “[e]xcept for good cause

   4
     The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 30

U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused by
“an unwarrantable failure of [an] operator to comply with . . . mandatory health or safety
standards.”
5
When reviewing an administrative law judge’s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable
mind might accept as adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
6
Although an operator is not liable for unwarrantable failure based on the aggravated
conduct of a rank-and-file miner, its “supervision, training and disciplining of its employees must
be examined to determine if the operator has taken reasonable steps to prevent the rank-and-file
miner’s violative conduct.” Whayne, 19 FMSHRC at 452-53 (quoting SOCCO, 4 FMSHRC at
1464) (emphasis in original). The Secretary has not argued on appeal that MMA’s supervision,
training, or discipline of Anderson was inadequate.
7
The Secretary’s formulation of her “plain meaning” argument is contradictory. If the
statute is plain, then no “interpretation” of the Secretary is required and, hence, no deference is
due. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43
(1984).

                                     22 FMSHRC 636

Page 5

shown, no assignment of error by any party shall rely on any question of fact or law upon which
the administrative law judge had not been afforded an opportunity to pass.” 30 U.S.C.
§ 823(d)(2)(A)(iii). The Secretary supported her argument before the judge that Anderson was
an agent by quoting section 3(e) and citing to Ambrosia Coal & Constr. Co., 18 FMSHRC 1552,
1560 (Sept. 1996), which itself employs common law principles of agency. S. Post-hearing Br.
at 28-29. However, she made no reference below to either the plain meaning or ambiguity of
section 3(e), did not interpret that provision, and did not request the judge to defer to any
interpretation of that provision. Accordingly, we need not reach the Secretary’s contention
regarding deference. See Beech Fork Processing, Inc., 14 FMSHRC 1316, 1320-21 (Aug. 1992)
(declining to consider theory raised for the first time on review). Even if the deference argument
had been presented below, we would reject it. The fundamental premise of the Secretary’s
argument is that the inquiry into Anderson’s status as an agent is determined solely by reference
to section 3(e). This premise is inconsistent with Commission case law.

    In determining whether a miner is an agent of an operator for purposes of imputing

negligence to the operator, the Commission has developed a multi-factor test. In formulating the
factors, the Commission has in some cases considered the statutory definition of agent contained
in section 3(e). REB Enters., Inc., 20 FMSHRC 203, 211 n.11 (Mar. 1998); Ambrosia, 18
FMSHRC at 1560; U.S. Coal, Inc., 17 FMSHRC 1684, 1686 n.3 (Oct. 1995). It has also been
guided in some cases by common law principles of agency. See R&P, 13 FMSHRC at 195 (“The
Commission has previously employed both the Act’s definition and common law principles in
resolving agency problems.”); Ambrosia, 18 FMSHRC at 1561 n.12 (citing 3 Am. Jur. 2d Agency
§§ 78-79 (1986) for the proposition that “a principal is liable for the acts of an agent that are
apparently within the agent’s authority and which the principal permits the agent to exercise”);
see also Pocahontas Fuel Co., 8 IBMA 136, 147 (Sept. 1977), aff’d, 590 F.2d 95 (4th Cir. 1979)
(Coal Act case) (adopting the common law principle that the acts or knowledge of an agent are
attributable to the principal). Thus, the Commission’s multi-factor test is not limited to the terms
of section 3(e). Moreover, the core concepts of imputation of an agent’s negligence to the
operator for purposes of penalty assessment and unwarrantable failure are Commission-fashioned
doctrines that do not spring solely from specific statutory language. Whayne, 19 FMSHRC at
451; R&P, 13 FMSHRC at 194-97; SOCCO, 4 FMSHRC at 1463-64; see Nacco Mining Co., 3
FMSHRC 848, 850 (Apr. 1981).

    The Secretary’s request for deference here is, at bottom, a request that the Commission

defer to the Secretary’s application of the Commission’s test for agency to the record facts. This
is the essence of the adjudicative function and is therefore the Commission’s province, not the
Secretary’s. We therefore find that the judge correctly based his analysis of Anderson’s status as
an agent on the Commission’s multi-factor test as elaborated in Commission precedent.

   B.      Substantial Evidence Supports the Judge’s Finding that Anderson Was Not an
           Agent of MMA

   When deciding whether a miner is an agent of an operator, the Commission has focused

on the miner’s function and not his job title. REB Enters., 20 FMSHRC at 211; Ambrosia, 18

                                    22 FMSHRC 637

Page 6

FMSHRC at 1560. It has examined whether the miner’s function involved responsibilities
normally delegated to management personnel and whether his responsibilities were crucial to the
mine’s operation. REB Enters., 20 FMSHRC at 211; Ambrosia, 18 FMSHRC at 1560; U.S.
Coal, 17 FMSHRC at 1688. It has also considered whether the miner exercised managerial
responsibilities at the time of his negligent conduct. R&P, 13 FMSHRC at 194.

    Commission cases that have found the lack of an agency relationship include U.S. Coal,

17 FMSHRC at 1688 (electrician was not an agent even though he was authorized to tell miners
to stop working on dangerous equipment and to remove such machinery from service); Whayne,
19 FMSHRC at 451-52 (experienced repairman who needed little supervision and helped less
experienced employees was not a supervisor); and REB Enters., 20 FMSHRC at 211-12
(leadman on highwall was not an agent because he did not have authority to hire and fire
employees, did not assign equipment to employees, and was not given any instructions regarding
discipline of employees).

     In deciding agency questions, the Commission has also examined precedent on the

distinctions between supervisors and employees under the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 141 et seq. (1994). Whayne, 19 FMSHRC at 451. The National Labor
Relations Board (“NLRB”) has consistently found that the authority to assign tasks is not by
itself sufficient to find supervisory status. See Micro Pacific Dev. Inc. v. NLRB, 178 F.3d 1325,
1333 (D.C. Cir. 1999) (holding that leadmen waiters and bartenders were not supervisors under
NLRA even though they made assignment and scheduling decisions); Highland Superstores, Inc.
v. NLRB, 927 F.2d 918, 921-23 (6th Cir. 1991) (holding that leadmen warehouse workers were
not supervisors under NLRA even though they assigned work to other employees every day). In
NLRB v. Lauren Mfg. Co., 712 F.2d 245, 248 (6th Cir. 1983), the court held that “the mere
performance of routine tasks or the giving of instructions to others is not sufficient to afford an
individual supervisory status.”

    The Secretary relies on NLRB v. Ajax Tool Works, Inc., 713 F.2d 1307 (7th Cir. 1983), for

the proposition that Anderson was an agent because he had the authority to assign tasks. S. Br. at
11 & n.4. Ajax is readily distinguishable. The employee in Ajax had the authority to assign work
without management approval, maintain discipline, send employees home if they were drunk or
did not work, and make recommendations to discharge employees. 713 F.2d at 1312.
Anderson’s narrow authority to assign specific tasks under close management supervision in this
case does not constitute the level of supervisory responsibility involved in Ajax. We also
disagree with the Secretary (S. Br. at 16) that under the theory of NLRB v. Thermon Heat Tracing
Servs., 143 F.3d 181 (5th Cir. 1998), Anderson was an agent because he was responsible for the
safety of part of the mine. The court in Thermon Heat stated that the employee was an agent
because “he was the safety professional for [the company] and that his duty was to assist in
promoting, providing, and maintaining a safe work environment at the company.” 143 F.3d at
186 (internal quotations omitted). The employee at issue in that case was the company’s safety
director. Id. at 184. As such, he was responsible for the safety of at least 100 employees, and
had authority to issue safety rules for the company. Id. Anderson’s narrow work duties in the

                                    22 FMSHRC 638

Page 7

loadout area are not comparable to the far-reaching responsibilities of the company’s safety
director in Thermon Heat.

    The judge found that Anderson assigned specific tasks to miners in the loadout area and

“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.”8 21 FMSHRC at 87. However, the judge concluded that, although
Anderson exercised “a certain degree of control over the loadout area and the miners who
worked there,” his control was “tightly circumscribed.”9 Id. at 88. He found that Anderson was
closely supervised by foreman Reese and it was Reese who decided what daily jobs were to be
completed. Id. at 87-88. The judge found that Anderson could not hire, fire, evaluate, or
discipline other miners and that Anderson could not take any action to abate citations, or change
a miner’s job or the equipment on the job without Reese’s permission. Id. The judge also found
that Anderson was paid at an hourly rate and did not hold himself out in any capacity to be an
agent of MMA. Id. Similarly, the Commission in REB, 20 FMSHRC at 211-12, found that a
leadman was not an agent because, like Anderson, he did not have the authority to hire, fire, or
discipline other miners, and could not independently change other miners’ jobs or assign
equipment.

    We conclude that the facts upon which the judge relied constitute substantial evidence in

support of his conclusion that Anderson was not an agent of MMA. Under the substantial
evidence test, the Commission may not “substitute a competing view of the facts for the view
[an] ALJ reasonably reached.” Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92
(D.C. Cir. 1983); accord Wellmore Coal Corp. v. FMSHRC, No. VA-95-9-D, 1997 WL 794132,
at *3 (4th Cir. Dec. 30, 1997). Under the deferential substantial evidence standard, our task is a
narrow one. “[E]ven if we would have weighed the evidence differently,” our sole responsibility

   8
      We disagree with the Secretary’s argument that Anderson was responsible for safety in

the loadout area. S. Br. at 2, 12. Although the judge found that Anderson conducted safety
meetings with the loadout crew (21 FMSHRC at 86), he made no findings regarding Anderson’s
responsibilities for the safety of the loadout area and we do not think the record compels a
conclusion that he had such responsibilities. The Secretary bases her claim on the following
colloquy at trial between her counsel and backhoe operator Jones: Q. “Anderson was the man
you relied on to make sure the work area was safe?” A. “Right.” Tr. 249-50. We agree with
MMA (MMA Br. at 9 n.4) that this exchange reveals little about what Anderson’s safety
responsibilities were in the loadout area.
9
The Secretary claims that Anderson was an agent in part because when Moss, an hourly
worker in the loadout area, was asked if Anderson was a supervisor, he answered “Yes.” S. Br.
at 2; Tr. 108. However, we do not think that this evidence compels a finding that Anderson was
an agent. As MMA points out (MMA Br. at 9 n.4), Moss’s answer is of limited value because
the record does not explain what Moss understood the term “supervisor” to mean. In addition,
the Commission has focused on a miner’s function and not his job title when determining agency
status. REB Enters., 20 FMSHRC at 211; Ambrosia, 18 FMSHRC at 1560.

                                    22 FMSHRC 639

Page 8

is to “determine whether a . . . reasonable factfinder could have reached the conclusions actually
reached by . . . the ALJ.” Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096,
1104 (D.C. Cir. 1998) (internal quotations omitted); see also Eastern Associated Coal Corp., 13
FMSHRC 178, 185 (Feb. 1991) (“The Commission’s task is not a de novo reweighing of
somewhat conflicting evidence but a determination of whether there is substantial evidence in the
record to support the judge’s conclusions.”).10 We conclude that the judge’s finding that
Anderson was not an agent was reasonable given Anderson’s very limited responsibilities to
assign work, and his close supervision by management.11

    We disagree with the agency standard proposed by the dissent under which a miner would

be an agent if he or she had the “authority to tell . . . other miners what to do.” Slip op. at 17.
This overly-broad standard could potentially reclassify the vast majority of rank-and-file miners
as agents — every time an experienced miner tells a less experienced miner “what to do” on the
job, the experienced miner would be acting as the operator’s agent. In our view, however, a
standard that would automatically transform a rank-and-file miner into an agent merely by
providing guidance to co-workers is ill-advised. Indeed, the real world ramifications of such an
approach are alarming. A miner learns the intrinsic nature of the environment in which he or she
works primarily through “on-the-job” training with guidance and support provided by fellow
rank-and-file miners. Yet if such guidance and support were to be considered proof of agency,
many experienced rank-and-file miners would likely be reluctant to instruct less experienced
miners on how to safely perform their jobs. Moreover, as an agent, an experienced rank-and-file
miner could be individually exposed to the “civil penalties, fines, and imprisonment” imposed on
agents under section 110(c) for violations of the Mine Act. See 30 U.S.C. § 820(c). The very
threat of exposure under section 110(c) would likely result in an erosion of the current
apprenticeship environment, and replace it with an “every man for himself” atmosphere that
would clearly be detrimental to the health and safety of our nation’s miners.

    Our dissenting colleague’s claim that our decision takes “a giant step” toward

establishing an overly restrictive agency standard which may “insulat[e] management from
negligence findings” (slip op. at 16) is overstated and ignores that the question of Anderson’s
agency is quite close — and depends on the particular facts and circumstances of this case.
Indeed, any case where agency is at issue will turn on its facts. Any operator that attempts to
insulate itself from negligence findings by providing its miners with substantial supervisory

   10
      Rather than applying the substantial evidence test to the judge’s findings, the dissent

reweighs the evidence de novo, concludes that Anderson was an agent, and advocates reversing
the judge’s agency findings. But even if the record evidence could support a finding that
Anderson was an agent, the Commission would not be permitted to overturn the judge’s
conclusion to the contrary, which in this case is supported by the record.
11
Commissioner Riley notes that USWA takes specific exception to the Secretary’s
“misguided perception of the term ‘agent’ and its application to rank-and-file miners.” USWA
Br. at 5-6.

                                    22 FMSHRC 640

Page 9

responsibilities without calling them supervisors will run the risk of crossing the line at issue in
this case and rendering such miners agents.

     We do not mean to suggest that the violation was anything other than extremely serious.

Nor do we hold that the judge’s reduction of the penalty from $45,000 to $2,000, based on his
finding that Anderson’s negligence could not be imputed to MMA, was required by this record.
Judges have the discretion to accord different weight to the six statutory penalty criteria for
assessing civil penalties based on the facts and circumstances of the case.12 Thunder Basin Coal
Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Here, the gravity of the violation, one of the six
criteria, was very high. However, the question whether the judge abused his discretion by
reducing the penalty by over 95% has not been presented to the Commission on review, and we
therefore do not reach the issue.

   12
        The six penalty criteria set forth in section 110(i) include:

             [1] the operator’s history of previous violations, [2] the
             appropriateness of such penalty to the size of the business of the
             operator charged, [3] whether the operator was negligent, [4] the
             effect on the operator’s ability to continue in business, [5] the
             gravity of the violation, and [6] the demonstrated good faith of the
             person charged in attempting to achieve rapid compliance after
             notification of a violation.

30 U.S.C. § 820(i).

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Page 10

                                          III.

                                      Conclusion

   For the foregoing reasons, we affirm the judge’s finding that Anderson’s negligence was

not imputable to MMA for unwarrantable failure and penalty assessment purposes because he
was not an agent of MMA.

                                        James C. Riley, Commissioner




                                        Theodore F. Verheggen, Commissioner




                                        Robert H. Beatty, Jr., Commissioner




                                   22 FMSHRC 642

Page 11

Commissioner Marks, concurring:

    While I concur in the result of this case, based on the limited issue it presents and our law

on that issue, I write separately to delineate some differences with the majority’s approach to this
case.

    Like the judge, I believe that this case, when viewed in light of Commission precedent, is

a close one with respect to the question of whether decedent Anderson was an “agent” of MMA
for purposes of imputing his negligence to MMA for unwarrantability and penalty assessment
purposes. See 21 FMSHRC at 87. I am concerned that our decision will be interpreted by
operators as a license to delegate more and more supervisory responsibilities to rank-and-file
miners in order to avoid the negligence of those miners being imputed to the operators. As the
majority opinion makes clear, we presently look at a number of factors in deciding this issue.
Slip op. at 5-6. Operators will no doubt be tempted to get “as close to the line” as possible, and
may assign as many supervisory responsibilities as they can to rank-and-file miners, without
crossing the now very complex line between rank-and-file miner and agent. The present multi­
factor analysis we use to determine whether a miner is an “agent” of the operator may increase
that temptation. For that reason, I would be very interested in hearing from parties in future cases
regarding whether the Commission should abandon its policy of not imputing to operators the
negligence of rank-and-file miners for purposes of unwarrantable failure and penalty
determinations.1

     Eliminating this Commission doctrine would greatly simplify some of the unwarrantable

failure issues that come before us. For instance, in the present case the majority, incorrectly in
my opinion, discounts the importance of Anderson’s safety responsibilities in the loadout area,
because of the judge’s failure to make a finding on the degree of Anderson’s responsibilities. See
slip op. at 7 n.8.2 The judge’s failure to make such a finding is understandable, given that the
complexity of the Commission’s present multi-factor analysis requires that a number of fact-
intensive findings be made in a case such as this.

   1
      As the majority points out this is a Commission-created doctrine (slip op. at 5), so there

is no potential in our revisiting this issue that we would disturb the distinction between rank-and-
file miners and agents for purposes of individual liability, which is governed by section 110(c) of
the Mine Act and therefore cannot be altered by Commission decision. See 30 U.S.C. § 820(c).
2
The majority holds that the record does not compel the conclusion that Anderson was
responsible for safety in the loadout area. Slip op. at 7 n.8. The judge found that Anderson
conducted the safety meetings for the miners in the loadout area (21 FMSHRC at 86), and
backhoe operator Jones testified that he relied upon Anderson to make sure the loadout area was
safe. Tr. 249-50. I believe this is more than enough evidence to establish Anderson’s
responsibility for safety.

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Page 12

    In addition, like amicus curiae United Steelworkers of America (“USWA”), I am struck

by evidence in this case that the operator failed to appropriately train and supervise rank-and-file
miners with respect to use of the locomotive air brake. See USWA Br. at 6-7. Anderson’s use of
compressed air from the locomotive air brake to clean the scales was not, as operator MMA
would have the Commission believe, “unforeseeable,” “contrary to all reasonable expectation,”
or “wholly aberrant and unpredictable.” MMA Resp. to USWA Br. at 9, 10. As Anderson’s
immediate supervisor, plant foreman Reese, acknowledged, compressed air had been used on a
prior occasion to clean the scales (Tr. 294-95), and there was additional testimony that air from a
locomotive had been so used (Tr. 120), so the air brake’s utility for cleaning the scales was not
unknown in the loadout area. Moreover, there was testimony that Anderson had on a prior
occasion attempted to use the air compressor on the locomotive for something other than its
ususal purpose. Tr. 123.

    Despite this history, there is no evidence that the operator’s training or supervision was

directed at warning miners of the danger of the particular action that led to Anderson’s death —
using air pressure from a locomotive to clean the scales and failing to inform everybody that he
would be cleaning the scales. There is also no evidence that, despite this history, Reese was
vigilant in his supervision of Anderson to prevent him from engaging in such a risky practice,
even though he knew that Anderson was going to be cleaning the scales on the day of the
accident. Tr. 293. Indeed, the judge implicitly criticized Reese’s supervision of the loadout area
on the day of the accident, remarking that it was strange for Reese to neither know of or be
curious about the important question of whether the brakes on the rail cars had been set. 21
FMSHRC at 82. In light of the foregoing, I must take issue with the judge’s conclusion that
operator fulfilled its duties with respect to training and supervising Anderson. See id. at 86.
However, because the Secretary did not pursue the issue of the extent of the operator’s
negligence in training and supervising Anderson, we cannot consider it in determining
unwarrantable failure or the degree of the operator’s negligence.

                                     22 FMSHRC 644

Page 13

    Lastly, I must express my concern regarding the penalty that was assessed by the judge in

this case. Reducing it from the $45,000 proposed by the Secretary to a mere $2,000 is simply not
justified by the fact that Anderson’s negligence cannot under Commission case law be imputed
to MMA. Moreover, even if were, the judge’s reduction in this case contravenes a number of
Commission instructions regarding penalty assessments. Even though we have held that a
judge’s assessment may not “substantially diverge” from the penalty proposed by the Secretary
without sufficient explanation (Unique Electric, 20 FMSHRC 1119, 1123 n.4 (Oct. 1998);
Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983)), the judge provided no such
explanation. See 21 FMSHRC at 88. In addition, in Thunder Basin Coal Co., 19 FMSHRC
1495, 1504-05 (Sept. 1997), we pointed out the inequity of a judge’s 95% reduction in the
penalty the Secretary had assessed against a large operator, because of our common-sense
concern that small penalties are insufficient to get the attention of a large operator. See Coal
Employment Project v. Dole, 889 F.2d 1127, 1135 (D.C. Cir. 1989). Yet incredibly, a similar
reduction occurred in this case against a large conglomerate. The threat of a $2000 penalty is
hardly sufficient to get the attention of the likes of MMA.

                                        Marc Lincoln Marks, Commissioner




                                   22 FMSHRC 645

Page 14

Chairman Jordan, dissenting:

    I disagree with my colleagues’ conclusion. Substantial evidence does not support the

judge’s finding that Jut Anderson was not an agent of Martin Marietta Aggregates. It is clear
from this record that Anderson had been delegated authority over the employees in the loadout
area. In light of this fact, the record compels the conclusion that Anderson must be considered an
agent of the operator and the Secretary could appropriately rely on Anderson’s negligence in
determining that an unwarrantable failure violation occurred. Likewise, it is appropriate for the
Commission to consider Anderson’s negligence in determining a penalty in this case.

     The detailed and unequivocal testimony of both rank-and-file and management

employees demonstrates that Anderson was responsible for work assignments and miner safety in
the loadout area. Tr. 108, 302-04. Robert Hobbs, the loader operator, stated that he took
instructions from Anderson, who assigned work to him. Tr. 139. Foreman Earl D. Reese
testified “it’s up to him [Anderson] to direct what individuals he wants each task to be done
[sic].” Tr. 303. Reese also stated that Anderson could stop a worker and redirect him if he did
not like his performance. Tr. 303-04. Although Anderson did not conduct performance
evaluations, Reese received information from him regarding the performance of members of his
crew.1 Tr. 281. Reese further testified that Anderson’s leadman job required him to constantly
inspect the area and see that crew members understood how to perform their jobs safely. Tr. 282.
Anderson held the weekly safety meetings with the crew and it was Anderson on whom the
miners on the loadout crew depended to keep the loadout area safe. Tr. 249-50.

    It would appear from the record that Anderson also viewed himself as being in charge of

the loadout area. About a month or two prior to the accident, Anderson told Billy Moss, a
member of his crew, to hook a valve up so that he could use the air compressor on the
locomotive for purposes other than a braking system. Tr. 123. According to Moss, there was no
indication that Anderson felt it necessary to consult with superiors before ordering that
adjustment. Tr. 123. On the day of the accident, Anderson again ordered the air pressure from
the air compressor to be diverted from the locomotive. Tr. 248. Ultimately, it was that order to
redirect the air pressure and release the brake which led to the tragic accident underlying this
case. Tr. 49, 248.

    The description of Anderson recounted by the witnesses does not fit the profile of a rank-

and-file miner. The record evidence shows that Anderson was in control of the activities in the
loadout area — telling workers what to do, correcting their mistakes, and adapting equipment.
Moreover, the workers on the crew perceived him as being in charge. Under the plain language
of the Mine Act (which defines “agent” as “any person charged with responsibility for the
operation of all or a part of a coal or other mine or the supervision of the miners in a coal or other
mine,” 30 U.S.C. § 802(e)), Anderson must be deemed an agent.

   1
       At least some members of the crew believed that Anderson could fire them. Tr. 278.

                                     22 FMSHRC 646

Page 15

  My colleagues point out that, when deciding whether a miner is an agent of an operator,

the Commission has

           focused on the miner’s function and not his job title. It has
           examined whether the miner’s function involved responsibilities
           normally delegated to management personnel and whether his
           responsibilities were crucial to the mine’s operation. It has also
           considered whether the miner exercised managerial responsibilities
           at the time of his negligent conduct.

Slip op. at 5-6 (citations omitted).

    Applying this approach to the case at hand merely reinforces the appropriateness of

designating Anderson an agent. Although Anderson did not have a job title such as
superintendent or foreman (which would readily convey managerial status), focusing on his
function — the person in charge of the loadout area — confirms that it is proper to consider
Anderson an agent. Did he carry out responsibilities normally delegated to management?
Absolutely. He supervised the employees in his crew and conducted the weekly safety meetings.
Were his responsibilities crucial to the mine’s operation? I don’t think anyone could deny that
the loadout area is an integral part of the mining operation. Lastly, was Anderson exercising
managerial responsibility at the time of his negligent conduct? It is undisputed that the accident
occurred as a direct result of Anderson instructing backhoe operator Jason Jones to release the air
brake on the locomotive.

    In declining to consider Anderson an agent, my colleagues claim support for the judge’s

finding that the control Anderson exercised over the loadout area was “tightly circumscribed.”
However, other than visiting the loadout area several times a shift to check on how things were
going, Tr. 154, 267, 281, it is unclear how Reese, the plant foreman, exercised this allegedly tight
control. Although Reese may have told Anderson what work was to be performed each day, it
was Anderson who decided how to direct the crew in order to get that work done. Indeed, far
from exhibiting a tight control over the loadout area, the record would indicate instead that
supervision by Reese was quite loose. Like Commissioner Marks, I also find telling the judge’s
remarks that it was strange for Reese, on the day of the accident, to neither know of, nor be
curious about, whether the brakes on the rail cars had been set. 21 FMSHRC at 82. In fact, I
find such stunning lack of involvement by higher management to be inconsistent with, and
indeed to fatally undermine, the claim that Anderson’s control of the loadout area was “tightly
circumscribed.”

    My conclusion regarding Anderson’s status is consistent with Commission decisions

resolving whether certain miners should be considered agents or supervisors. Cases where the
Commission has considered a miner to be an operator’s agent include Ambrosia Coal & Constr.
Co., 18 FMSHRC 1552, 1560-61 (Sept. 1996) (miner was agent when he accompanied
inspectors on their inspections, gave work orders to abate citations, was responsible for seeing

                                     22 FMSHRC 647

Page 16

that equipment repairs were made, was paid a salary like management, and did not receive extra
pay for overtime) and Rochester & Pittsburgh Coal Co. (“R&P”), 13 FMSHRC 189, 194-96
(Feb. 1991) (miner was an agent when he conducted statutorily mandated weekly shift
examination); see also Pocahontas Fuel Co., 8 IBMA 136, 146-48 (Sept. 1977), aff’d, 590 F.2d
95 (4th Cir. 1979) (Coal Act case) (miner was an agent when he conducted pre-shift examination
which was statutorily mandated duty of operator). Although the particular job duties in these
cases differed from Anderson’s, the level of responsibility was comparable.

    The cases cited by the majority, in which the Commission found that the miner was not

an agent or supervisor, are readily distinguishable. In Whayne Supply Co., 19 FMSHRC 447,
451 (Mar. 1997), for example, the miner simply carried out routine repair duties, and helped less
experienced miners. In U.S. Coal, Inc., 17 FMSHRC 1684, 1688 (Oct. 1995), the miner was an
electrician qualified to repair and maintain equipment, who could take it out of service when
warranted. Finally, in REB Enters., Inc., the miner did not have the authority to directly initiate
the assignment of work to employees. 20 FMSHRC 203, 211 (Mar. 1998). The Commission in
REB noted that, unlike in the instant case, the Secretary had failed to present evidence that the
miner was directly responsible for controlling the acts of miners or that he was responsible for
their safety. Id. at 211-12.2

     In holding that only an agent’s negligence may be imputed to an operator, R&P, 13

FMSHRC at 194, the Commission has already eliminated the actions of rank-and-file miners as a
basis for unwarrantable failure findings. I share the concern expressed by Commissioner Marks
that if the Commission adopts an overly-restrictive view regarding who qualifies as a supervisor
or agent, we may be insulating management from negligence findings in some circumstances
where it is warranted. This could ultimately undermine the optimal vigilance about safety and
health matters which is the core purpose of the Mine Act, as operators who know that they will
avoid unwarrantable findings and be subject to only minor penalties for the actions of most
individuals under their control may be tempted to cut corners when it comes to complying with
safety and health regulations.

   2
      In addition, the majority observes that the Commission has also been guided by

common law principles of agency, stating that “the acts or knowledge of an agent are attributable
to the principal” (slip op. at 5 (citing Pocahontas Fuel Co., 8 IBMA at 147)), and that “a
principal is liable for the acts of an agent that are apparently within the agent’s authority and
which the principal permits the agent to exercise,” (id. (quoting Ambrosia, 18 FMSHRC at 1561
n.12)). These precepts are not violated by a determination that Martin Marietta (the principal)
unwarrantably violated the Act on the basis of the actions of Anderson (the agent) . The manner
in which Anderson attempted to clean the scales is the behavior which underlies the citation.
Cleaning the scales was within Anderson’s authority and was a job that Marietta permitted him to
exercise.

                                    22 FMSHRC 648

Page 17

     Unfortunately, I believe my colleagues have taken a giant step toward that overly-

restrictive approach with their decision in this case. They decline to consider Anderson an agent
even though Anderson regularly supervised employees in the loadout area, an activity which
brings him squarely within the Act’s definition of agent. The fact that Anderson did not have
responsibility for hiring or firing these individuals, and the fact that Anderson was himself
subject to supervision does not change his status as agent. The relevant factor, it seems to me, is
that Anderson had ongoing authority to tell the other miners what to do. The miners
acknowledged this authority. Accordingly, when Anderson told Billy Moss to hook up the valve
which allowed the air compressor on the locomotive to be used for purposes other than braking,
Moss complied. Likewise, on the day of the accident, when Anderson told Jones to release the
air brake, Jones did as instructed. Anderson died as he was cleaning the scales with the
compressed air from the locomotive. Had Anderson chosen instead to instruct a member of his
crew to clean the scales, that miner would no doubt have complied, and would have been killed
instead of Anderson. I suggest that when the operator gives an individual like Anderson the
authority to direct miners regarding what tasks will be performed, and how those tasks will be
carried out, that individual should be considered acting on the operator’s behalf and the operator
should be held accountable for that individual’s actions.

    For the reasons stated above, I would reverse the judge’s determination that Anderson

was not an agent of Martin Marietta Aggregates. I would find that he was an agent, hold that the
violation was the result of the operator’s unwarrantable failure, and impute his negligence to the
operator for the purpose of determining a penalty. Accordingly, I respectfully dissent.

                                          Mary Lu Jordan, Chairman




                                    22 FMSHRC 649

Page 18

Distribution

Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Theodore L. Garrett, Esq.
Covington & Burling
1201 Pennsylvania Ave., N.W.
P.O. Box 7566
Washington, D.C. 20044

Henry Chajet, Esq.
David B. Robinson, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037

Harry Tuggle, Esq.
United Steel Workers of America
Five Gateway Center
Pittsburgh, PA 15222

                              22 FMSHRC 650