Secretary of Labor v. Union Rock & Materials Corporation (ALJ decision, November 14, 1980)

Plain-English summary

MSHA issued eight citations to Union Rock & Materials at its Mesa Plant and Pit. Judge John J. Morris upheld a citation for an opening along a walkway because a handrail alone left a fall hazard, and another for a wet insulating mat near electrical switches. He vacated an inadequate lighting citation because he credited the operator's evidence that four tunnel lights still functioned. Union Rock withdrew its contest of three other citations, and MSHA moved to vacate two more. The order affirmed five citations and their proposed penalties and vacated three citations and their proposed penalties; the published decision does not state the penalty amounts.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11-12, 56.17-1, and 56.12-20 for the three discussed citations.
• Outcome: Citations 379461, 379463, 379464, 379468, and 379469 affirmed with proposed penalties; citations 379462, 379465, and 379467 vacated. Penalty amounts are not printed.
• Key point: The judge found a fall hazard and electrical hazard, but held that MSHA had not proved inadequate tunnel lighting.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

333 W. COLFAX AVENUE
DENVER, COLORADO 80204

NOV 14 1980
)
SECRETARY OF LABOR, MINE SAFETY AND ) CIVIL PENALTY PROCEEDING HEALTH ADMINISTRATION (MSHA), )
) DOCKET NO. WEST 79-93-M
Petitioner, ) A/O NO. 02-00711-05004
)
v. ) MINE: MESA PLANT AND PIT
)
UNION ROCK & MATERIALS CORPORATION, )
)
Respondent. )
)

Appearances:

Alan Raznick, Esq., Office of Daniel W. Teehan, Regional Solicitor, United States Department of Labor, Room 11071 Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102

for Petitioner,

Gary Houston, Esq., Union Rock & Materials Corporation, 1000 Kiewit Plaza, Omaha, Nebraska 68131 for Respondent. Before: Judge John J. Morris DECISION

In this civil penalty proceeding, the Secretary of Labor, on behalf of the Federal Mine Safety and Health Administration (MSHA), charges that Union Rock and Materials Corporation violated safety regulations issued under the authority

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.

Pursuant to notice a hearing on the merits was held in Phoenix, Arizona on April 1, 1980.

The parties filed post trial briefs.
ISSUES

The issues are whether Union Rock violated the safety regulations.

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CITATION 379463
This citation alleges a violation of 30 CFR 56.11-12. 1/ The facts are uncontroverted.

1. There was a three foot wide opening under a classifier along a walkway
   (Tr. 10, 28, R 1, R 2).

2. A person could fall through the opening into the screw type flow (Tr.
   10).

3. The opening was at the right side of a travelway (Tr. 10-11).

Union Rock argues that it complied with the standard in providing a handrail and that it was not necessary to provide a midrail. Further, Union Rock contends this was sufficient protection in view of the infrequent use of the walkway.

Union Rock’s arguments are rejected. There existed an unguarded opening beneath the railing and workers should have been further protected. A midrail

should have been provided.

Mere infrequent use does not constitute a defense since such a defense concedes exposure of Union Rock’s employees to the hazard.

The citation should be affirmed.
CITATION 379465
This citation alleges a violation of 30 C.F.R. 56.17-1. 2/ The facts are conflicting. I find the following facts to be credible.

1. There were five electric lights in Union Rock’s fifty foot long tunnel
   (Tr. 32, 33, 40, R 3).

2. There was a broken light bulb close to the open end of the tunnel
   (Tr. 33, R 3, R 4).

3. The broken bulb did not affect the illumination in the tunnel area (Tr
   33).

1/ 56.11-12 Mandatory. Openings above, below, or near travelways through which men or materials may fall shall be protected by railings, barriers, or covers. Where it is impractical to install such protective devices, adequate warning signals shall be installed.

2/ 56.17 Illumination. Mandatory. Illumination sufficient to provide safe working conditions shall be provided in and on all surface structures, paths, walkways, stairways, switch panels, loading and dumping sites, and work areas.

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MSHA contends it presented sufficient evidence to sustain this citation. I agree. However, the test is whether MSHA's evidence is persuasive. I find that Union Rock’s evidence is more credible.

The facts presented an underlying issue of whether the photographs were taken at the tunnel where the citation was issued. Union Rock’s personnel should know its own tunnel. The photographs show four functioning lights in the tunnel (R 3, R 4). MSHA failed to prove there was insufficient illumination in the tunnel within the meaning of 30 CFR 56.17-1. Accordingly, this citation should be vacated.

CITATION 379468
This citation alleges a violation of 30 CFR 56.12-20. 3/ The evidence is essentially uncontroverted.

1. The rubber mat at the motor control electrical panel was holding water
   (Tr. 19).

2. The electrical equipment switches located at this point carried 480
   volts (Tr. 20).

3. If the mat is dry the electrical current will not go to ground (Tr
   21).

4. If the electrical equipment developed a short the wet rubber mat, with
   water around it, would serve as a conductor (Tr. 23, 24).

Union Rock asserts that it should prevail. It argues that the uncontroverted evidence shows that its witness examined the mat out of the presence of the inspector and he found the underneath portion to be dry. I disagree. The water lying on, and around the mat, is sufficient to establish the hazard contemplated by the regulation.

This citation should be affirmed.

PROPOSED CIVIL PENALTIES

Considering the statutory critera 4/ I deem the proposed civil penalties for Citations 379463 and 379468 to be appropriate.

3/ 56.12-20. Mandatory. Dry wooden platforms, insulating mats, or other electrically nonconductive material shall be kept in place at all switch- boards and power-control switches where shock hazards exist. However, metal plates on which a person normally would stand and which are kept at the same potential as the grounded, metal, noncurrent-carrying parts of the power switches to be operated may be used.

4/ 30 U.S.C. 820 (i).

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WITHDRAWAL OF CONTEST AND MOTIONS TO VACATE

At trial Union Rock moved to withdraw its notice of contest and pay the

proposed penalties for citations 379461, 379464, and 379469 (Tr. 5). The motion is granted.

MSHA moved to vacate citation 379462 and 379467 (Tr. 7). The motions are granted.

Based on the foregoing findings of fact, conclusions of law, and motions I hereby enter the following

ORDER

1. Citations 379461, 379463, 379464, 379468, and 379469 and the proposed
   penalties therefor are affirmed.

2. Citations 379462, 379465, 379467 and all proposed penalties therefor
   are vacated.

John J. Morris
Administrative Law Judge

Distribution:

Alan Raznick, Esq., Office of Daniel W. Teehan, Regional Solicitor United States Department of Labor

Room 11071 Federal Building, 450 Golden Gate Ave. San Francisco, California 94102

Gary W. Houston, Esq., Union Rock and Materials Corporation 1000 Kiewit Plaza, Omaha, Nebraska 68131

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