Ralph Foster and Sons (ALJ decision, June 2, 1981)

Plain-English summary

The Commission sent Ralph Foster and Sons' safety-glasses case back to the judge for a civil penalty assessment. Judge John J. Morris noted that the operator was very small, had no history of violations when the citation issued, and corrected the condition immediately after the inspector pointed it out. He found that the agency's negligence assessment rested on a mistaken belief that proprietor Robert Foster was among the miners without safety glasses; Foster was working at another mine. Finding no operator negligence, the judge assessed a $15 penalty and ordered payment within 30 days. This remand decision did not reopen the violation finding.

Decision snapshot

• Governing provision: 30 U.S.C. § 820(i)
• Outcome: $15 civil penalty assessed for the standing safety-glasses violation.
• Key point: The judge assessed the penalty without operator negligence after correcting the inspector's mistaken identification of the proprietor.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. RALPH FOSTER
DDATE:
19810602
TTEXT:

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Federal Mine Safty and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
DOCKET NO. WEST 79-397-M
PETITIONER
v. A/C NO. 05-03209-05001

RALPH FOSTER AND SONS,
MINE: ERDA C G27
RESPONDENT

DECISION AFTER REMAND

On May 12, 1981, the Federal Mine Safety and Health Review Commission remanded the above case for the assessment of a penalty.

The following is a review of the criteria required to be examined in the assessment of a penalty. 30 U.S.C. 820(i). The parties stipulated to the fact that at the time Citation No. 326566 was issued, Ralph Foster and Sons had no history of violations of the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq. (the Act) (Tr. 22). Respondent is a very small mine operator. (Exhibit A attached to the petition and Tr. 11).

The danger anticipated by the standard was likely to occur (Tr. 11, Commission Exhibit 1), and the resulting injury could be permanently disabling. (Comm. Ex. 1). The miners involved immediately put on their safety glasses after being informed of the violation by the inspector. (Tr. 12).

The degree of negligence attributed to respondent by the Mine Safety and Health Administration was based on an erroneous fact and should, therefore, be re-assessed. The inspector's statement indicates that the proprietor of the mine, Robert Foster, knew of the condition cited. This conclusion was based on the inspector's belief that Robert Foster was one of the miners who was not wearing the safety glasses. (Comm. Exhibit 1). However, at trial, the inspector testified that Robert Foster was not one of the miners involved, and in fact, was not in the mine at the time. (Tr. 10, 11, 21). Mr. Foster confirmed the fact that at the time of the violation he was working in another mine (Tr. 29). I find, therefore, that there was no negligence on the part of the mine operator involved in the violation of the Act.

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Having given due consideration to the necessary criteria, I assess a penalty of $15.00. Respondent is directed pay this amount within 30 days of the date of this order.

John J. Morris
Administrative Law Judge