Ralph Foster and Sons (Commission decision, May 12, 1981)

Plain-English summary

MSHA cited Ralph Foster and Sons after finding two miners drilling without eye protection. The judge found a violation of the eye protection rule but vacated the citation because its mine name was wrong. The Commission held that the mine had been identified during the hearing and the naming error had not prejudiced the operator's defense. It reinstated the citation and remanded the case to assess a penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.15-4
• Outcome: The citation was reinstated and remanded for a penalty assessment; no amount was set in this decision.
• Key point: A mine-name error did not defeat the citation when the operator knew which mine was involved and could defend the charge.

Full text (FMSHRC public release)

CCASE:
MSHA V. RALPH FOSTER AND SONS
DDATE:
19810512
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C. May 12, 1981 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)

v. Docket No. WEST 79-397-M

RALPH FOSTER AND SONS

DECISION
We directed this case for review to determine whether the administrative law judge erred in vacating a citation after he had found a violation of 30 CFR $57.15-4. 1/ The citation issued November 3, 1978, listed the mine as Erda CG-27 and stated that two men were drilling at the face without safety glasses or eye protection of any kind. The judge found the violation had occurred but vacated the citation because MSHA failed to prove the mine involved in the violation." Dec. at 3. In his answer to the Secretary's petition for assessment of civil penalties, Robert Foster, the owner of Ralph Foster and Sons, averred that the Erda CG-27 mine had been operated in 1975, but not since that year. The answer also alleged that, in the mine to which the citation may have referred, the miners were cleaning their glasses at the time of inspection, and did not violate any regulations. At the hearing Foster testified that MSHA, at an unspecified time, sent two inspectors to clear the confusion regarding the mine name and he and the inspectors "agreed that Erda CG-27 must be the mine we called G-3." Tr. 29. He also stated that he thought the inspector was talking about G-3 when referring to the alleged violation. Tr. 32-33. This record clearly indicates that the question of the proper identification of the mine was litigated and the operator knew at which mine the violation occurred. A technical defect in the citation which did not prejudice the operator in presenting his defense, and which, in effect, was cured at the hearing should not prevent a finding of liability. Jim Walter Resources and Cowin and 1/ 30 CFR $57.15-4 provides: Mandatory. All persons shall wear safety glasses, goggles, or face shields or other suitable protective devices when in or around an area of a mine or plant where a hazard exists which could cause injury to unprotected eyes.
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Company, 1 FMSHRC 1827 (1979). See also Old Ben Coal Company, 2 FMSHRC 1187 (1980). We hold that the judge erred in vacating the citation. Accordingly, the citation is reinstated and the case is remanded for the assessment of a penalty.
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Distribution
Mr. Robert G. Foster
Ralph Foster & Sons
2950 A 1/2 Road
Grand Junction, Colorado 81501
Ann M. Noble, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Bldg.
1961 Stout Street
Denver, Colorado 80294
Ann Rosenthal, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015.Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge John J. Morris
FMSHRC
333 W. Colfax Ave.
Denver, Colorado 80204