Boart Longyear Company v. Secretary of Labor

Plain-English summary

MSHA had cited Boart Longyear for a foreman's failure to use fall protection while working on a truck bed and proposed a $70,000 penalty. Shortly before trial, the Secretary sought to add an alternative charge that the truck bed was an unsafe work platform without handrails. Judge David Barbour denied the amendment because the two standards addressed different duties and the original citation gave the company no notice to defend a platform-construction theory. He separately extended discovery, denied the company's motion to quash interrogatories and admissions, narrowed an overbroad document request, and imposed response deadlines. The underlying citation remained for trial.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.15005 and 56.11027
• Outcome: The Secretary's motion to add the platform standard was denied, while the discovery extension was granted and the motion to quash was denied.
• Key point: An amendment cannot introduce a materially different safety duty shortly before trial when the original citation did not provide fair notice of that theory.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE: 202-434-9953 / FAX: 202-434-9949

July 18, 2013

BOART LONGYEAR COMPANY,

Contestant,

v.

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Respondent.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner,

v.

BOART LONGYEAR COMPANY,

Respondent.

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CONTEST PROCEEDINGS:

Docket No. WEST 2012-248-RM

Order No. 8605604; 10/25/2011

Docket No. WEST 2012-249-RM

Order No. 8605605; 10/25/2011

Docket No. WEST 2012-250-RM

Order No. 8605606; 10/25/2011

Docket No. WEST 2012-251-RM

Order No. 8605607; 10/25/2011

Mine: Durkee Cement Plant

Mine ID: 35-02970 Y12

CIVIL PENALTY PROCEEDINGS:

Docket No. WEST 2012-422-M

A.C. No. 35-02970-275832 Y12

Docket No. WEST 2012-891-M

A.C. No. 35-02970-287135 Y12

Mine: Durkee Cement Plant

ORDER DENYING MOTION TO AMEND CITATION AND PETITION

AND TO PLEAD IN THE ALTERNATIVE

ORDER EXTENDING TIME FOR DISCOVERY AND DENYING MOTION TO QUASH

ORDER SETTING DATES AND TIMES FOR RESPONSES

Before: Judge Barbour  

In these consolidated contest and civil penalty proceedings, the Secretary, inter alia,
petitions for the assessment of a civil penalty of $70,000 for an alleged violation of30 C.F.R. § 56.15005 as set forth in Citation No. 8605605 (Docket No. WEST 2012-891). The
citation, which is dated October 25, 2011, was issued pursuant to section 104(d)(1) of the Mine
Act. 30 U.S.C. § 814(d)(1). It charges that a foreman was observed working on top of the bed of
a truck without wearing fall protection. Section 56.15005 in pertinent part states that, “Safety
belts and lines shall be worn when persons work where there is danger of falling[.]” In
answering the Secretary’s petition the Respondent denies it violated the standard. Answer 2. It
further asserts that the findings the inspector made when issuing the citation (findings related to
the gravity of the alleged violation, the negligence of the company, the unwarrantable failure of
the company and the S&S nature of the alleged violation) are “incorrect as a matter of law and
fact.” Id. In addition, the company argues that the proposed penalty is “not substantially
justified.” Id.

I.

MOTION TO AMEND CITATION AND PETITION IN THE ALTERNATIVE

The Secretary moves to amend the citation and the civil penalty petition to assert that the
company also violated 30 C.F.R. § 56.11027, a standard requiring, “Scaffolds and working
platforms [to] be of substantial construction and provided with handrails and maintained in good
condition.” The Secretary states that, “Respondent will not be prejudiced by the granting of this
motion insofar as the facts and circumstances giving rise to either violation are related, and the
evidence the Secretary will present in this matter will be, for the most part, ‘equally relevant to
both safety standards.’ ” Motion 2 (citing Gilbert Development Corp., 32 FMSHRC 185, 199-200 (Feb. 2010) (ALJ Manning)). The Respondent counters with numerous objections to the
motion, including among other things, that it will indeed be prejudiced and that in any event, the
motion is untimely. Company’s Response to Motion to Amend 2-4.

The court finds no need to resolve all of the Respondent’s objections. It agrees with the
Respondent that granting the motion will be prejudicial. This alone dooms the Secretary’s
request. While there is no doubt, as both parties recognize, that Commission judges have the
authority to grant motions to plead in the alternative in appropriate circumstances (Gilbert
Development, 32 FMSHRC at 200.), such circumstances do not here exist. As an initial matter,
there is a problem with the Secretary’s terminology. While the motion is titled to allow pleading
in the alternative, it reads as though the Secretary is asking the court to find that the company
violated both standards. “[T]he Secretary moves to amend Citation No. 8605605 and the Petition
for Assessment of Penalty in Docket No. WEST 2012-891-M to allege, in the alternative, that the
Respondent violated . . . [section] 56.11027 in addition to . . . [section] 56.15005.” Motion 1
(emphasis supplied). Pleading in the alternative means one or the other, not both.

Although this semantical problem can be circumvented by reading the language of the
motion as expressing the Secretary’s intent to ask the court to find a violation of section
56.11027 or a violation of section 56.15005, reading it in this way and granting the motion
would prejudice the company. Unlike the case before Judge Manning, the two safety standards
here at issue are not virtually identical and, despite what the Secretary asserts, evidence presented
regarding both would not necessarily be equally applicable. The citation at issue describes the
condition the company allegedly violated.

The foreman was observed working on top of

the bed of truck #2268. The foreman was not

wearing fall protective gear. The foreman

was about 5 feet above ground level . . . The

foreman was standing at the edge of the bed of

the truck. The bed was covered in pipe,

tools, a garbage can, dirt, loose pipe, and

debris. Sharp blasted rock and debris were

on the ground under the miner’s work area.

Should the miner fall it would likely expose

him to serious or fatal injuries. An oral

imminent danger order . . . was issued to the

foreman working on the bed of the truck[.]

Doug Tucker, [the] foreman[,] engaged in

aggravated conduct constituting more than

ordinary negligence in that he conducted an

unsafe act violating a mandatory standard.

Doug stated he had been trained in the use of

fall protection but actively chose not to use it.

Citation No. 8605605.

The citation clearly pertains to the foreman’s failure to use fall protection while working
and in danger of falling, a charge the company has been preparing to defend. Section 56.11027,
however, concerns the construction and maintenance of work platforms, including a requirement
to provide such platforms with handrails. There is not one word in the citation referencing the
construction, substantial or otherwise, of a work platform or the provisioning of a platform with
handrails. While the truck bed conceivably could be viewed as a work platform and the alleged
debris on the bed could be viewed as impairing the platform’s good condition, there has been no
notice to the company to prepare against such an interpretation. If the Secretary wishes to charge
the company with a violation of Section 56.11027, he should do it in the “old fashioned” way by
issuing a citation and proposing a civil penalty, so that the issues are raised in a subsequent case
that provides sufficient notice to the Respondent. The court will not allow the Secretary to “back
door” the charge through an ill advised amendment to the existing citation and pleadings. The
Secretary’s motion is DENIED. 

II.

MOTION FOR EXTENSION OF TIME FOR COMPLETION OF DISCOVERY

MOTION TO QUASH

DATES AND TIMES FOR RESPONSES

The Secretary also moves for an extension of time to complete discovery. The motion
was filed on July 9, 2013. The Secretary requests an effective extension to July 19. Motion for
Extension of Time 3 n.1. Along with the motion the Secretary filed interrogatories, requests for
admissions and requests for production of documents. Counsel for the Respondent advised
counsel for the Secretary that she opposes the motion.

In a July 11, 2013, electronic message to the parties the court, mindful that the cases are
scheduled to be tried beginning on July 30, 2013, expressed its exasperation with this last
minute, “down to the wire” discovery dispute. However, the court stated that unless counsel for
the Respondent raised something unanticipated when she filed her written objections to the
motion, the court would “in all likelihood . . . grant [the motion] in part and order the company to
respond to the Secretary’s First Interrogatories and First Requests for Admissions by 5:00 p.m.
EST, July 19, 2013.” E-mail from David Barbour, Administrative Law Judge, to counsels (July
11, 2013, 5:40 PM EST) (in lead file). On July 16, 2013, counsel for the Respondent filed her
written objections to allowing discovery and she moved to quash the Secretary’s interrogatories,
requests for admissions and requests for production of documents. The court has reviewed the
Respondent’s objections, many of which center on the Respondent’s contention that the
Secretary’s request is untimely. In the court’s view the objections do not represent “good cause”
justifying a need to forego discovery. The court takes counsel for the Secretary at his word that
his first discovery requests were sent to counsel for the Respondent on June 17, 2013. The court
also takes counsel for the Secretary at his word that after he served the discovery requests on
counsel for the Respondent, he heard nothing from counsel for the Respondent until he, counsel
for the Secretary, contacted counsel for the Respondent on July 10 and she advised him on July
11 that the she would not respond because she viewed the discovery requests as untimely.

A purpose of discovery is to allow counsels access to all relevant information prior to trial
to minimize surprise at trial and to allow counsels to advise their clients as to the strengths and
weaknesses of their cases. In addition, full knowledge of one another’s cases facilitates
settlement. These are among the reasons why discovery is encouraged and judges are given
leeway to regulate its implementation and practice. If, in a judge’s opinion, engaging in
discovery is likely to facilitate revelation of the truth of the matters at issue, the judge has the
authority and the duty to facilitate it. Here, while counsel for the Secretary’s discovery requests
came late in the overall time line of the cases, they were not so late as to prevent counsel for the
Respondent from coming forward with good faith responses. She did not do so. Rather, she
waited approximately 23 days before advising counsel she viewed the requests as untimely.

The court believes that the interest of the parties in producing a complete record, the
interests of the public and the Commission in ascertaining the truth of the matters at issue and the
Commission’s overall interest in encouraging full disclosure in litigated cases must prevail.
Therefore, the court GRANTS the Secretary’s motion to extend the time to complete discovery
and it DENIES the Respondent’s motion to quash. The court views the Secretary’s First
Interrogatories and First Requests for Admissions as acceptable and necessary for full disclosure.
It therefore ORDERS the company to respond to the interrogatories and requests for admissions
by 5:00 p.m., EST, Monday, July 22.

Any documents identified in the responses shall be
delivered to counsel for the Secretary by fax or by electronic transmission at that time. Finally,
as stated in the July 11 e-mail, the court views paragraph 1 of the Secretary’s Request for
Production of Documents as too broad and it RULES the company need not respond to the
request in paragraph 1. If, after receiving the Respondent’s responses to the Secretary’s
interrogatories and requests for admissions, counsel for the Secretary identifies particular
relevant documents he wishes produced, he will have until 5:00 p.m., EST, Wednesday, July 24
to request their production, and counsel for the Respondent will have until 5:00 p.m., Friday, July
26 to deliver the documents by fax or electronic transmission.

The parties’ prehearing reports were due on July 16, 2013, and both the Secretary’s and
Respondent’s reports have been received. In view of the holdings regarding discovery, the
Secretary may file an amended report by 5:00 p.m. July 26, 2013 and the Respondent may file
one by that time and date as well. 

David Barbour

Administrative Law Judge

Distribution (1st Class U.S. Mail):

Bryan Kaufman, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800,
Denver, Colorado 80202

Dana Svendsen, Esq.; Liane D. Hunt, Paralegal, Jackson Kelly, PLLC, 1099 18th Street, Suite 2150,
Denver, CO 80202

/sa