Gordon Sand Company (ALJ decision, March 5, 2008)

Plain-English summary

Gordon Sand Company contested three citations at its California sand-and-gravel operation. Before the hearing, the Secretary agreed to vacate two citations. No company representative appeared for the remaining guarding citation, and the chief executive told the judge by telephone that he had forgotten the hearing. Judge Richard W. Manning entered default, affirmed the section 56.14107(a) citation, and assessed the proposed $177 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14107(a)
• Outcome: Two citations were vacated, and the remaining guarding citation was affirmed by default with a $177 penalty.
• Key point: Forgetting a scheduled hearing left the operator in default on the sole remaining citation.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1244 SPEER BOULEVARD #280

DENVER, CO 80204-3582

303-844-3577/FAX 303-844-5268

March 5, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

GORDON SAND COMPANY,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. WEST 2006-524-M

A.C. No. 04-01787-090994

Gordon Sand Company

DECISION

Appearances:              John D. Pereza, Conference & Litigation Representative, Mine

Safety & Health Administration, Vacaville, California, for Petitioner.

Before:                        Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Gordon Sand Company, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). Gordon Sand Company operates a construction sand and gravel operation in Santa Barbara County, California. It contested three citations issued by the Secretary. An evidentiary hearing was held in Oakland, California.

The Secretary’s representative appeared at the scheduled hearing along with his witness but nobody from Gordon Sand Company was present. I called George Gordon III, the chief executive officer of the company, at his office in Hayward, California, and was advised that he was not in the office at that time. About ten minutes later, he called me back and advised me that he had forgotten about the hearing. I advised him that I would be holding the company in default.

Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6390416 and 6390417. (Secretary’s Response to Prehearing Order). As a consequence, the scheduled hearing only concerned Citation No. 6390415, which alleges a violation of 30 C.F.R. § 56.14107(a). I hereby find Gordon Sand Company in DEFAULT with respect to that citation. Citation No. 6390415 is affirmed in all respects as is the Secretary’s proposed penalty for the citation. (Tr. 4).

For the reasons set forth above, Citation No. 6390415 is AFFIRMED, and Gordon Sand Company is ORDERED TO PAY the Secretary of Labor the sum of $177.00 within 30 days of the date of this decision.

Richard W. Manning

Administrative Law Judge

Distribution:

John D. Pereza, Conference & Litigation Representative, Mine Safety & Health Administration, 2060 Peabody Road, Suite 610,Vacaville, CA 95687 (Certified Mail)

George E. Gordon III, Gordon Sand Company, 28310 Industrial Blvd., Suite F, Hayward, CA 94545 (Certified Mail)

RWM