Staker Paving & Construction Company, Incorporated

Plain-English summary

MSHA cited Staker Paving after a front-end loader operated without an audible back-up alarm or an observer, even though maintenance reports had documented the defect. The company admitted the violation and abated it in six days after obtaining a replacement part. Judge John J. Morris found that the violation was serious but that the evidence did not establish a reasonable likelihood of a reasonably serious injury, so he struck the significant-and-substantial designation. He affirmed the citation as amended and reduced the proposed $700 penalty to $250.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9087
• Outcome: The citation was affirmed as amended with the significant-and-substantial designation removed, and the penalty was set at $250.
• Key point: A violation can remain serious and support a penalty even when the record does not establish the likelihood required for an S&S finding.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. STAKER CONSTRUCTION
DDATE:
19870225
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 86-120-M
PETITIONER A.C. No. 42-01452-05513
v.
Staker-Beck Street Mine
STAKER PAVING & CONSTRUCTION
COMPANY, INCORPORATED,
RESPONDENT

                             DECISION

Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Petitioner;
Mr. Orval D. Gillen, Staker Paving Construction Company,
Inc., Salt Lake City, Utah, pro se.

Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration, charges respondent with violating a safety
regulation promulgated under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq., (the "Act").

 After notice to the parties, a hearing on the merits took

place in Salt Lake City, Utah on August 13, 1986.

   The parties waived their right to file post-trial briefs.

                              Issues

 The issues are whether an allegation of unwarrantable

failure can be contested in a civil penalty proceeding. Further,
whether the violation was of a significant and substantial
nature. Finally, what penalty is appropriate under the
circumstances in this case.

Citation 2644141

 This citation alleges respondent violated 30 C.F.R. §

56.9087 which provides as follows:

       § 56.9087 Audible warning devices and back-up alarms.
       Heavy duty mobile equipment shall be provided with
       audible warning devices. When the operator of such
       equipment has

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an obstructed view to the rear, the equipment shall
have either an automatic reverse signal alarm which
is audible above the surrounding noise level or an
observer to signal when it is safe to back up.

Admission

 At the commencement of the hearing respondent admitted the

violation (Tr. 4, 5).

Summary of the Evidence

 William W. Wilson, a duly authorized representative of the

Secretary and experienced in mining, inspected respondent on
December 16, 1985 (Tr. 9, 10).

 During the inspection he issued Citation 2644141 when he

observed a Michigan 275C front-end loader without an audible
alarm (Tr. 11; Ex. P1). McCoy Evans was operating the vehicle.
During the course of two days the inspector observed a laborer
and a mechanic in the general area of the loader (Tr. 11). The
inspector also did not see anyone spotting for the loader when it
backed up (Tr. 11). The back-up alarm was not audible (Tr. 12).
In the previous week the operator had turned in several daily
reports to the pit foreman (Tr. 13).

 The inspector evaluated the operator's negligence as

moderate when he wrote the citation (Tr. 14). The following day
he confirmed that maintenance reports on the defective vehicle
had been written on December 9, 10, 11 and 13 (Tr. 15, 16). On
the final citation the inspector accordingly marked the
negligence as high and further indicated that the circumstances
showed a careless disregard by the operator since no repairs had
been made (Tr. 16, 17).

 The hazard involved here could reasonably kill or maim a

miner (Tr. 17, 18). Respondent abated the condition in six days.
It was necessary to obtain a part (Tr. 18).

 The inspector indicated he has had some problems with

respondent's employee Van Dyke concerning compliance with safety
regulations (Tr. 19). But there has been a decline in the number
of citations issued against respondent. This has been attributed
to the company's efforts (Tr. 20). Apparently a communication
problem caused the delay in the repair of the alarm (Tr. 21).

   Respondent has, on the average, 12 employees (Tr. 24).

 Orval D. Gillen, testifying for respondent, indicated he is

the company's safety and training engineer (Tr. 28, 29). The
witness identified the various employees on the site at the time
of the inspection (Tr. 20, 29).

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Mr. Gillen believed the equipment operator, as they normally do,
should have immediately notified the shop people of the defect
(Tr. 30, 31). The notification can be by telephone or radio,
located at the crusher (Tr. 31). The instructions to the
operators to proceed in this fashion are verbal and were given
during training (Tr. 32).

 The pit's size is about 100 by 300. When the citation was

issued there were six people at the site (Tr. 32, 34).

 After this citation the operators involved were again

verbally instructed as to the proper procedure (Tr. 33).

 The company employs as many as 500 people but most of them

are under OSHA's jurisdiction (Tr. 34).

 Payment of the proposed penalty would not affect the

company's ability to continue in business (Tr. 25, 37).

                          Discussion

 Since the operator admits the violation the citation should

be affirmed.

 An additional issue concerns respondent's contest of the

allegations of unwarrantable failure. The ruling at the hearing
is reiterated at this time: unwarrantable failure cannot be
litigated in a civil penalty proceedings, Clinchfield Coal
Company, 2 FMSHRC 290 (1980).

 A further issue concerns whether the violation was of a

significant and substantial nature.

 A decision as to whether a violation has been properly

designated as being significant and substantial must be made in
light of the Commission's rulings in that area. The term
"significant and substantial" was first defined by the Commission
in National Gypsum Co., 3 FMSHRC 822 (1981) at page 825, where
the Commission stated:

          We hold that a violation is of such a nature as could
     significantly and substantially contribute to the cause
     and effect of a mine safety and health hazard if, based
     upon the particular facts surrounding that violation,
     there exists a reasonable likelihood that the hazard
     contributed to will result in an injury or an illness
     of a reasonably serious nature.

 In this case the facts fail to establish that was a

reasonable likelihood that an injury of a reasonable serious
nature would result from the violative condition. The evidence establishes there were workers in the 100 by 300 pit. But, it is
impossible to ascertain if the described measurements are in feet
or yards. Further, no evidence indicates any workers were
directly in danger due to the defective back-up alarm on the
loader.

 For the foregoing reasons the S & S allegations should be

stricken from the citation.

 The final issue concerns the appropriate penalty to be

assessed.

 The statutory criteria to assess a civil penalty is

contained in Section 110(i) of the Act. The provision, now
codified as 30 U.S.C.A. § 820(i), provides as follows:

          The Commission shall have authority to assess all civil
     penalties provided in this Act. In assessing civil
     monetary penalties, the Commission shall consider the
     operator's history of previous violations, the
     appropriateness of such penalty to the size of the
     business of the operator charged, whether the operator
     was negligent, the effect on the operator's ability to
     continue in business, the gravity of the violation, and
     the demonstrated good faith of the person charged in
     attempting to achieve rapid compliance after
     notification of a violation.

 In relation to the criteria the computer print-out shows

that respondent incurred 19 violations for the two year period
ending December 15, 1985. This showed an improvement over the 28
violations assessed before December 16, 1983. The penalty
hereafter assessed appears appropriate in relation to the size of
the business of this small operator. While the operator at times
has as many as 500 employees, the majority of them are not under
MSHA's jurisdiction. In fact, there were apparently only six
employees at this site. The operator was negligent since four
maintenance reports had mentioned the defect. The operator has
indicated that the imposition of the proposed penalty of $700
would not affect the company's ability to continue in business.
The gravity of the violation should be considered as high because
a serious injury or a fatality could result. Under the broad
umbrella of good faith it is to respondent's credit that it
abated the violation. Further, the respondent at this point has
demonstrated a certain dedication to the safety of its workers.

 On balance, I deem that a civil penalty of $250 is an

appropriate penalty.

Conclusions of Law

 Based on the entire record and the factual findings made in

the narrative portion of this decision, the following conclusions
of law are entered:

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1. The Commission has jurisdiction to decide this case.

   2. Respondent violated 30 C.F.R. § 56.9087.

 3. The allegations that the violation was significant and

substantial should be stricken.

 Based on the foregoing findings of fact and conclusions of

law I enter the following:

                              ORDER

 1. The allegations that the violation was significant and

substantial are stricken.

   2. Citation 2644141, as amended, is affirmed.

   3. A civil penalty of $250 is assessed.

 4. Respondent is ordered to pay the sum of $250 to the

Secretary within 40 days of the date of this decision.

                            John J. Morris
                            Administrative Law Judge