Secretary of Labor (MSHA) v. T & W Sand and Gravel Company (ALJ decision, October 1, 1981)

Plain-English summary

MSHA cited T & W Sand and Gravel Company after an employee suffered a severe arm injury while cleaning a moving conveyor at its gravel pit. The citations alleged improper manual cleaning of a moving conveyor pulley and inadequate safety instruction for new employees. During the hearing, the parties agreed to penalties of $500 and $250 for the two citations. Judge John A. Carlson approved the settlement, noting the strength of MSHA's evidence and a pending motion over its late penalty proposal. He ordered the company to pay the $750 total within 30 days.

Decision snapshot

• Cited standards: Rules on cleaning moving conveyor pulleys and instructing new employees; section numbers are not given in this decision.
• Outcome: Settlement approved; $750 in total penalties ordered.
• Key point: The parties resolved the two citations after evidence was heard and while a motion over MSHA's late filing remained pending.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. T & W SAND
DDATE:
19811001
TTEXT:
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Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
DOCKET NO. WEST 80-398-M
PETITIONER
v. A/O NO. 05-02331-05004

T & W SAND AND GRAVEL COMPANY, MINE: T & W Sand & Gravel RESPONDENT

Appearances:
Robert J. Lesnick Esq. Office of the Solicitor United States Department of Labor 1961 Stout Street, 1585 Federal Building Denver, Colorado 80294,
for the Petitioner

Gerald M. Madsen Esq.
Suite 200, United Bank of Littleton Building 5601 South Broadway Littleton, Colorado 80121,
for the Respondent

DECISION

This case arose out of a severe arm injury suffered by an employee attempting to clean a moving conveyor at respondent's gravel pit. The Secretary charged in Citation No. 328732 that respondent violated a mandatory standard which forbids manual cleaning of pulleys on moving conveyors. In Citation No. 328733 he charged that respondent also violated a mandatory standard requiring indoctrination of new employees in safety rules and procedures. The Secretary proposed an $800 penalty for the first citation and $250 for the second. At trial, however, his counsel moved to increase these amounts to $1,500 for each citation.

That motion was taken under advisement pending the hearing of the evidence.
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At the beginning of the third day of the hearing on the merits, the parties announced that a settlement had been reached. Specifically, petitioner would amend its penalty proposal for Citation No. 328732 to $500 and would accept the original $250 for Citation No. 328733. Respondent agrees to pay these amounts, and to withdraw its contest of the penalties.

Having heard most of the evidence, I am convinced that the settlement is well conceived and is consistent with the purposes of the Act. The Secretary's case for violation is strong, but is jeopardized by a pending motion for dismissal based upon his failure to file his penalty proposal until several months past the 45 day deadline prescribed in Commission Rule 17.

Under these circumstances it appears that each party had a sound reason for compromise.

Accordingly, the settlement agreement is approved.
Respondent's contest of the penalties as amended by the settlement agreement is withdrawn, and an aggregate of $750 in penalties shall be paid to the Secretary of Labor within 30 days of the date of this present order.

SO ORDERED.

John A. Carlson
Administrative Law Judge