Minerals Exploration Company v. Secretary of Labor (MSHA) (ALJ decision, February 14, 1984)

Plain-English summary

Minerals Exploration Company contested a citation concerning inadequate fire protection on a subcontractor's pickup truck at its Sweetwater Uranium Project. The parties agreed that the truck violated the cited fire protection rule, but Minerals argued that it should not have received the citation because a separate contractor controlled construction work. Judge John J. Morris found that a representative of Minerals' parent company had exercised authority over subcontractors and directed abatement of earlier citations. He held that this control made Union Oil and Minerals a proper recipient of the citation. The judge dismissed the contest, leaving Citation 576874 in place. This decision assessed no civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 55.4-24(b), requiring fire extinguishers and suppression devices adequate in number and size for the hazard.
• Outcome: Contest dismissed and Citation 576874 affirmed; no penalty assessed here.
• Key point: Control over subcontractor abatement supported citing Minerals for the agreed fire protection violation.

Full text (FMSHRC public release)

CCASE:
MINERALS EXPLORATION V. SOL (MSHA)
DDATE:
19840214
TTEXT:
~324

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

MINERALS EXPLORATION COMPANY,
CONTEST PROCEEDING
CONTESTANT
Docket No. WEST 80-338-RM
v. Citation/Order 576874; 4/28/80

SECRETARY OF LABOR,
Sweetwater Uranium Project
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

DECISION

Appearances: Anthony D. Weber, Esq., Union Oil Company of California, Los Angeles, California, for Contestant;
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Respondent.

Before: Judge Morris

Contestant, Minerals Exploration Company, (Minerals), contests a citation issued by the Secretary on behalf of the Mine Safety and Health Administration, (MSHA), under the authority of the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq.

After notice to the parties a hearing on the merits was held commencing on October 5, 1982 in Laramie, Wyoming.

Minerals filed a post trial brief.

Jurisdiction

At the commencement of the trial contestant denied jurisdiction in WEST 80-338-RM because the case involves a contract issue (Tr. 3-4).

On this issue the evidence shows that contestant had filed the legal identity form required by the regulations and received an MSHA identification number (Tr. 16, 17). Contestant also held itself out as the operator of the property (Tr. 17).

The foregoing facts establish jurisdiction.

Issue

The issue is whether contestant is liable under the facts.
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Summary of the Evidence

In this case Minerals contests Citation 576874 issued by MSHA pursuant to Section 104(a) of the Act. MSHA asserts Minerals violated 30 C.F.R. 55.4-24(b) (FOOTNOTE 1)

The parties agree that a Hensel Phelps' pickup truck on this worksite was not provided with adequate fire protection. The equipment was therefore in violation of Section 55.4-24(b) (Tr. 7-9).

But the parties disagree on whether Minerals was the proper recipient of the citation.

MSHA's evidence reflects the following facts: MSHA Inspector Merrill Wolford issued the citation to Joe Jenkins, a supervisor of Union Oil Company (Tr. 9, 10). The parties in the scenerio: Union Oil Company owns Minerals and Kaiser Engineering (Tr. 10). Hensel Phelps was a subcontractor for Kaiser Engineering (Tr. 10).

Inspector Wolford is not sure how Minerals fits into the picture but Minerals filed an operator's application with MSHA and received an identification number (Tr. 17). A large sign at the gate of the worksite states "Union 76, Minerals Exploration Company". The sign also contains the MSHA identification number (Tr. 17).

Inspector Wolford testified that when on an inspection of the premises they would go through a gap in the chain link fence to go from the Minerals mine area to where Kaiser and Hensel Phelps were located in the mill construction area (Tr. 12, 13, 37).

Wolford had been coming to the worksite on several prior occasions for a year. Jenkins exercised authority over subcontractors in handling and abating citations written by Wolford (Tr. 12, 38, 39). On one occasion an electrical contractor refused to abate a violative condition. After a confrontation between the subcontractor and Kaiser ~326
Engineering Jenkins ordered the abatement. The subcontractor abated (Tr. 39).

Project Manager Dykers and General Maintenance foreman Jacobson testified for Minerals. The evidence reflects the following facts:

In April 1980 Minerals was the wholly owned subsidiary of Union Oil Company (Tr. 18, 19). This combination owned the property and had a controlling interest in the ore (Tr. 19-20).

At the time the citation was issued construction was underway at the site. It included a plant, a shop, a mill and related facilities (Tr. 19-20). The mill was being erected by Kaiser Engineering, a wholly independent contractor (Tr. 20).

Joe Jenkins was assigned by Union Oil Company to insure that Kaiser met the design criteria and material specifications of their contract (Tr. 20, 21).

At the time of the inspection the contractor (Kaiser) had essentially completed the maintenance shop and the administration building. A fence separated construction activities from the mining activities (Tr. 21).

Dykers, Minerals' project manager, had no control over construction at the site (Tr. 22). Nor did Minerals have any control over Hensel Phelps, except through Union's corporate management (Tr. 22). In fact, Minerals protocol and procedure prohibited Dykers from dealing directly with Kaiser Engineering or Hensel Phelps (Tr. 22).

Minerals seven safety representatives had nothing to do with the construction at the job site (Tr. 23). Minerals had no operating authority, could not issue orders, and could not discuss any item of business with construction personnel (Tr. 23, 24). If Minerals' safety department found a significant item they would bring it to Dykers. He would pass it through corporate channels (Tr. 24). The purpose of the independent atmosphere was to insure there would be no division of authority or cross purposes (Tr. 24).

Several written Union memoranda issued before and after the inspection confirm Dykers' testimony concerning the separation of the construction activity from the mining activities (Exhibit MEC 1, 2, 3, 4).

Discussion

Minerals' post trial brief relies on Phillips Uranium Corporation, 4 FMSHRC 549 (1982). Minerals contends that the Secretary's issuance of the citation was solely for the Secretary's administrative convenience, a procedure condemned by the Commission in Phillips.
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I am not persuaded by Minerals' arguments. The uncontroverted evidence cannot be ignored. This evidence follows: Inspector Wolford had been inspecting this worksite for approximately a year before the instant citation was issued (Tr. 12). On several prior occasions Jenkins, the resident engineer for Union, (parent of Minerals) exercised authority over the subcontractors and on several occasions he directed the abatement of Wolford's citations (Tr. 38, 39). Jenkins, according to Wolford, ordered the abatement of the instant citation. These activities constituted sufficient control over the worksite so as to render Union/Minerals the proper recipient of Citation 576874.

Further, even had the Secretary's enforcement policy predated this inspection, Minerals would not prevail. Control over abatement is one of the factors mentioned in the Secretary's enforcement policy for independent Contractors, 45 Fed.Reg. 44,497 (1981). (FOOTNOTE 2) When inspector Wolford issued the citation he could reasonably believe, based on prior experience, that Minerals personnel were taking charge of abatement and that they had some supervision over independent contractors complying with safety rules. Further, the violation occurred on Minerals' property and the only mine identification number available to the inspector for the property was the one upon which the citation issued.

Since it is uncontroverted that the violative condition existed it follows that the citation should be affirmed. In sum, the independent contractor defense outlined in Phillips is not available to contestant.

For the foregoing reasons I enter the following:

ORDER

The notice of contest filed herein is dismissed.

John J. Morris
Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE

1 The standard allegedly violated provides:

55.4-24 Mandatory. Fire extinguishers and fire suppression devices shall be:

(b) Adequate in mumber and size for the particular fire hazard involved.

~FOOTNOTE_TWO
2 The guidelines which accompany adoption of the independent contractor regulations, now codified at 30 C.F.R. 45 provide, in pertinent part, as follows: Accordingly, as a general rule, a production operator may be properly cited for a violation involving an independent contractor:....(4) when the production operator has control over the condition that needs abatement.