Secretary of Labor v. Lewis-Goetz and Company, Inc.

Plain-English summary

A Lewis-Goetz employee performed belt-splicing work on a wet, 30-inch-wide coal belt about 10 to 12 feet above the ground without using an available safety belt or line. The Judge vacated the citation because the contractor had a written fall-protection policy, trained the employee, and provided for discipline. The Commission majority held that 30 C.F.R. § 77.1710(g) requires miners to actually use fall protection when a fall danger exists, not merely that an operator train and discipline them. It overruled earlier Commission precedent and held the operator strictly liable for the employee's failure to use the equipment. The Commission affirmed the fact of violation and remanded for findings on negligence, S&S, and the penalty. Commissioner Young concurred in the result under the former precedent, while Commissioner Cohen dissented and would have required an evidentiary hearing.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1710(g)
• Outcome: The vacatur was reversed, the citation was affirmed as a violation, and negligence, S&S, and penalty issues were remanded.
• Key point: A safety policy and training program do not prevent strict operator liability when a miner fails to use required fall protection.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY OF LABOR,                                :

MINE SAFETY AND HEALTH                       :

ADMINISTRATION (MSHA)                          :

:                  Docket
No. WEVA 2012-1821

v.                                                   :                             

:

LEWIS-GOETZ AND COMPANY, INC.         :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and
Althen, Commissioners

DECISION

BY: Jordan, Chairman; Nakamura and Althen, Commissioners

In this simplified penalty
proceeding arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), the Administrative Law Judge
vacated a citation issued by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) to Lewis-Goetz and Company, Inc. (“Lewis-Goetz”), and dismissed the
pending penalty proceeding. 35 FMSHRC 2192 (July 2013) (ALJ).[1]
At issue is the regulatory interpretation of 30 C.F.R. § 77.1710(g), which
requires employees to use safety belts and lines when there is a danger of
falling. For the reasons that follow, we reverse the Judge’s decision, grant
summary decision for the Secretary on the fact of violation, and remand for
further proceedings.

I.

Facts and
Proceedings Below

A.               
Factual Background

Lewis-Goetz is an independent
contractor that offers conveyor belt fabrication and repair services to mines. On
December 18, 2011, an MSHA Inspector was inspecting a prep plant in West
Virginia. The inspector observed Lewis-Goetz hourly employee Jesse Brown performing
belt splicing and vulcanizing services on the elevated No. 2 raw coal belt. The
belt was approximately 30 inches wide, wet from the falling snow, and located
approximately 10 to 12 feet above the ground. Brown was walking and squatting
down on the wet, narrow, and elevated coal belt. He was not wearing a safety
belt or tag line.

The inspector
determined that Brown was in imminent danger of falling and issued an imminent
danger order (which is not at issue in this case). He also issued a citation
alleging that Brown had violated 30 C.F.R. § 77.1710(g),[2]
which addresses miners’ use of safety belts and lines where there is danger of
falling. The citation also alleged that it was highly likely that a fatal
injury would occur as a result of a fall; that the violation was “significant
and substantial” (“S&S”);[3] and that one
miner was affected. The citation was initially issued with a designation of
“high” negligence, but MSHA later modified the operator’s negligence to
moderate.

After the inspector
ordered Brown to descend from the coal belt, Brown stated that he was aware he
was supposed to wear a safety belt and tag line, but due to the severe cold
weather, he was in a hurry to get the work done and decided not to wear the
belt. After being removed from the elevated beltline, Brown retrieved a safety
belt and tag line from a tool bag located in the maintenance truck. Brown told the
inspector that the devices were available to him and that he had been trained
in their use.

MSHA proposed a civil penalty of
$971, and Lewis-Goetz filed a notice of contest challenging the citation.

B.                
The Judge’s Decision

The Judge issued a Decision
and Order on Cross Motions for Summary Decision. She denied the Secretary’s
motion for summary decision on the violation of section 77.1710, granted the
operator’s motion for summary decision, and vacated the citation. 35 FMSHRC at
2197. The decision did not revisit a previous determination by the Judge to
reject the Secretary’s filing of an opposition to Lewis-Goetz’s motion and did
not refer to any of the arguments the Secretary had made in that filing.[4]

The Judge first
concluded that the Secretary properly asserted MSHA jurisdiction over
Lewis-Goetz. Id. at 2194-95. In effect, though not explicitly, the Judge
therefore granted partial summary decision in the Secretary’s favor on the
jurisdictional issue.

The Judge then considered whether
Lewis-Goetz violated 30 C.F.R. § 77.1710(g) when Brown worked without a safety
belt or line. She concluded that the contractor had not violated the standard. Id.
at 2195-97. The Judge noted the Secretary’s position that a violation had
occurred because section 77.1710(g) imposes strict liability on operators. Id.
at 2196. The Judge also noted Lewis-Goetz’s position that the standard only
requires an operator to impose a requirement for employees to use fall
protection and to take reasonable measures to ensure that the requirement is
enforced. Id. at 2195-96. The Judge concluded, based on the Commission’s
decisions in Southwestern Illinois Coal Corp., 5 FMSHRC 1672 (Oct. 1983)
(“Southwestern I”), and Southwestern Illinois Coal Corp., 7
FMSHRC 610 (May 1985) (“Southwestern II”), that the duty the standard
imposes on the operator is to “have a safety system in place requiring
employees to use safety gear and that [the operator] diligently seek[s] to
enforce that requirement through such avenues as training, supervision, and
disciplinary measures for failure to comply.” 35 FMSHRC at 2196.

The Judge summarized the evidence
in the record, stating that the Secretary stipulated to the following facts: (l)
Lewis-Goetz has a written policy that all miners must wear fall protection; (2)
Lewis- Goetz offers at least yearly refresher training on the policy; 3) by
company policy, a violation of the requirement to wear fall protection is
subject to graduated disciplinary measures, including termination; and (4)
Brown admitted to the inspector that he was “well aware of the requirement to
wear the equipment but he intentionally ignored the policy” and that “[t]he
gear was readily available to him in his tool bag.” Id.

The Judge noted that if the parties disputed
whether Lewis-Goetz’s efforts to enforce its policy were adequate, then a
material fact would be in dispute. Id. at 2196 n.3. The Judge concluded,
however, that summary decision was appropriate because the parties “had stipulated
to the contrary,” after having noted the undisputed facts about the operator’s
policy and enforcement efforts. Id. Ultimately, the Judge concluded: “Based
upon the facts mutually agreed upon, I find that Lewis-Goetz did have an
adequate policy in place requiring employees to wear fall protection and [that
it] took adequate measures to enforce that policy.” Id. at 2196. After
granting Lewis-Goetz’s motion for summary decision and denying the Secretary’s
motion for summary decision, the Judge vacated the citation and dismissed the
matter. Id. at 2197. The Commission granted the Secretary’s petition for
discretionary review.

II.

Disposition

A.          Occurrence
of a Violation

The Secretary argues that in
denying his motion for summary decision and granting Lewis-Goetz’s motion, the
Judge misinterpreted section 77.1710 and committed several procedural errors. Specifically,
the Secretary contends that the Judge misinterpreted the applicable regulatory
standard by applying Commission precedent holding that an operator may escape
liability for its rank-and-file miner’s failure to comply with the standard. The
Secretary argues that strict liability under the Mine Act mandates an
alternative interpretation of the applicable standard.

Below, the Judge determined that
the operator was entitled to summary decision as a matter of law. She based
this decision on a plain interpretation of section 77.1710, controlled by
Commission precedent set forth in Southwestern I. The Commission reviews
the Judge’s summary decision de novo. See Lakeview Rock Prods., Inc.,
33 FMSHRC 2985, 2988 (Dec. 2011). As we concluded in Nally & Hamilton
Enterprises, 38 FMSHRC , No. KENT 2011-434 (July , 2016), which was also
issued on this date and addresses the interpretation of the same language in
section 77.1710, section 77.1710(i) requires the use of seat belts. Similarly,
section 77.1710(g) requires the use of fall protection where there is a danger
of falling. Thus, the Judge erred in granting summary decision for Lewis-Goetz.
Rather, the Secretary is entitled to summary decision that a violation occurred
as a matter of law.

Consistent with Nally, the
only sensible reading of the regulation is that it requires that miners use fall
protection. As in Nally, we do not read section 77.1710 as imposing only
an obligation upon the operator to train and discipline miners. The section
compels the wearing of the prescribed protective clothing and devices.[5]
Section 77.1710(g) achieves its purpose if and only if miners wear fall
protection, and not if they merely receive training on its use and suffer
discipline for failing to use it. It is not necessary to repeat our analysis of
the proper interpretation of section 77.1710 again here. As fully explained in Nally,
we conclude that the language of the standard, other standards related to the use
of protective gear, Commission precedent, and the purpose of the Mine Act
underscore our interpretation of section 77.1710.[6]

Therefore, for the reasons set
forth in Nally, we overrule Southwestern I and II. We find
that the failure of a miner to use fall protection as defined in section
77.1710(g) is a violation. The operator, in turn, is strictly liable for such
violation without regard to the diligence with which it has trained and
required miners to use fall protection. Therefore, we vacate and reverse the
decision below and find the operator committed a violation of section 77.1710(g).

B.        Negligence,
S&S, and Penalty

In granting summary decision for the operator,
the Judge found that the Secretary had stipulated to facts demonstrating that the
operator had adequate policies and enforcement measures in place to warrant summary
judgment under the then-prevailing Southwestern I standard. On review,
the Secretary asserts that it did not concede that the operator’s enforcement
actions were adequate and further asserts that the stipulations do not concede
the adequacy of enforcement.

The Judge acknowledged that if the Secretary
contested the operator’s enforcement of its policy, a disputed issue of fact
would exist. In light of our decision today finding a violation, these questions
of enforcement actions become relevant to the Judge’s negligence determination,
which must be considered on remand. In addition, the Judge must make
determinations regarding whether the violation was S&S and the penalty
amount.

We conclude that Lewis-Goetz violated section
77.1710(g) because of the miner’s failure to use fall protection where there
was a danger of falling. Because the Judge granted summary decision for the
operator and dismissed the proceeding, the Judge did not make findings on the
operator’s level of negligence and whether the violation was S&S, and did
not assess a penalty. Accordingly, we remand the case to the Judge for further
proceedings in light of our decision.

III.

Conclusion

For the foregoing reasons, we reverse
the Judge’s decision, affirm Citation No. 8036268, and remand for further
proceedings on S&S and negligence and for assessment of a penalty.

/s/ Mary Lu
Jordan

Mary Lu Jordan, Chairman

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/
William I. Althen

William I.
Althen, Commissioner

Commissioner Young, concurring:

I join my colleagues in reversing the Judge’s
decision and granting summary decision to the Secretary on the finding of a
violation of 30 C.F.R. § 77.1710(g). I also agree with remanding the case back
to the Judge to address negligence, the Secretary’s S&S designation, and
for assessment of a penalty. However, because I disagree with their decision to
overturn the Commission’s decisions in Southwestern Illinois Coal Corp.,
5 FMSHRC 1672 (Oct. 1983) (“Southwestern I”), and Southwestern
Illinois Coal Corp., 7 FMSHRC 610 (May 1985) (“Southwestern II”), I
write separately.

As I stated in my dissent in Nally &
Hamilton Enterprises, 38 FMSHRC , No. KENT 2011-434 (July , 2016), also
issued on this same date, I believe that the Commission should respect and
follow its precedent. A decision to overturn precedent should not be made
lightly and should be substantiated by ample reason based in law. In this
circumstance, I believe that Southwestern I was rightly decided
based on the plain language of section 77.1710 and the well-established
principles of regulatory construction. However, applying Southwestern I
to the facts of this case, substantial evidence supports that Lewis-Goetz
failed to comply with the requirements of Southwestern. More
specifically, the evidence does not demonstrate that Lewis-Goetz engaged in
“sufficiently specific and diligent enforcement” of its policy regarding fall
protection. Southwestern I, 5 FMSHRC at 1676. The record is devoid of
evidence of any such program and enforcement by Lewis-Goetz. Thus, even
applying Southwestern I, the Judge erred in granting summary
decision for the operator.

The Commission reviews a Judge’s
summary decision de novo. See Lakeview Rock Prods., Inc., 33 FMSHRC
2985, 2988 (Dec. 2011). A Judge can enter summary decision only if there are no
material facts in dispute and a party’s position is entitled to judgment as a
matter of law. See 11 James Wm. Moore et al., Moore’s Federal
Practice § 56.24 (3d ed. 2015) (considering a motion for summary decision,
Judge’s role is limited to a determination of whether a case can be decided
without the need to resolve any factual disputes).

The parties presented undisputed
evidence that Lewis-Goetz had a policy concerning the use of fall protection
and provided guidance (training) and enforcement (progressive disciplinary
program); contrary to the Judge’s statement, the parties did not
stipulate as to the adequacy of Lewis-Goetz’s enforcement efforts under the
standard articulated in Southwestern I. 35 FMSHRC 2192, 2196 & n.3
(July 2013) (ALJ). Nor is there sufficient evidence in the record to support
the Judge’s conclusion that Lewis-Goetz adequately enforced its policy on fall
protection.

The parties stipulated that
Lewis-Goetz has a written policy that all miners must wear fall protection,
that they offer at least yearly refresher training on it, and that by company
policy a violation of the requirement to wear fall protection is subject to
graduated disciplinary measures including termination. 35 FMSHRC at 2196; Jt.
Stips. 13, 14, 22. The parties submitted copies of Brown’s training records,
indicating that he had been trained annually on the use of fall protection. Jt.
Ex. C (attached to Jt. Stips.). Also submitted was a copy of Lewis-Goetz’s
Disciplinary Program. Jt. Ex. D (attached to Jt. Stips.). However, both
Lewis-Goetz’s safety policy and summary decision motion simply emphasize that
its policy provided that it is each employee’s personal responsibility to “work
in a safe and efficient manner.” Jt. Ex. D; Resp’t’s Br. Supp. Contest 3.

Lewis-Goetz did not present any
evidence detailing the training provided to its miners or evidence of
enforcement and discipline for non-compliance with its safety program. Thus, given
the evidence of the operator’s sparse program and enforcement, I conclude that
the record compels the conclusion that Lewis-Goetz did not undertake “sufficiently
specific and diligent enforcement” of its policy about when miners must wear
fall protection in satisfaction of Southwestern I. See Am. Mine
Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (stating that remand is not
necessary when the record supports no other conclusion).

Because I conclude that Southwestern
I is controlling, I agree that the Judge erred in granting summary decision
for the operator and conclude that the Secretary is entitled to summary
decision based on the conclusion that the operator did not comply with Southwestern
I. Accordingly, I agree with the majority that the case should be remanded
to the Judge to address the operator’s negligence and S&S and for
assessment of a penalty.

/s/
Michael G. Young

Michael
G. Young, Commissioner

Commissioner Cohen, dissenting:

I respectfully dissent in this case for two
reasons.

First, I disagree with the majority that 30
C.F.R. § 77.1710(g) should be interpreted in a manner that overrules the
Commission decisions in Southwestern Illinois Coal Corp., 5 FMSHRC 1672
(Oct. 1983) (“Southwestern I”), and Southwestern Illinois Coal Corp.,
7 FMSHRC 610 (May 1985) (“Southwestern II”). In a decision we are
issuing simultaneously with this one, Nally & Hamilton Enterprises, 38
FMSHRC , No. KENT 2011-434 (July , 2016), a majority of the Commissioners
have overruled Southwestern I and its progeny. I along with my colleague
Commissioner Young authored opinions dissenting from the majority in that case,
stating that the majority decision failed to provide a compelling justification
to depart from established Commission precedent. I adopt that opinion here. As
Commissioner Young states in his concurring opinion in this case, “Southwestern
I was rightly decided based on the plain language of section 77.1710 and
the well-established principles of statutory construction.” Slip op. at 7
(Young, Comm’r, concurring).

Hence, I disagree with the majority’s conclusion
that the fact that Lewis-Goetz employee Jesse Brown was not wearing a safety
belt or other fall protection while working on the elevated No. 2 raw coal belt
by itself compels the conclusion that section 77.1710(g) was violated. The
proper issues, as framed in Southwestern I, are whether Lewis-Goetz (1)
“establish[ed] a safety system designed to assure that employees wear [the
clothing or equipment] on appropriate occasions” and (2) “enforce[d] such
system with due diligence.” 5 FMSHRC at 1673 (quoting N. Am. Coal Corp.,
3 IBMA 93, 107 (1974)); see also Southwestern II, 7 FMSHRC at 612-13.

It is tempting to join with Commissioner Young
in the finding that Lewis-Goetz was guilty of a violation because the record
compels the conclusion that it failed to adequately enforce its policy on fall
protection. Nevertheless, I must instead conclude that this is not an appropriate
case for summary decision—my second reason for dissenting.

According to Commission Procedural Rule 67(b),
29 C.F.R. § 2700.67(b), a judge may only grant a motion for summary decision
“if the entire record . . . shows: (1) That there is no genuine issue as to any
material fact; and (2) That the moving party is entitled to summary decision as
a matter of law.” The Commission has noted that summary decision is an
“extraordinary procedure” that should only be employed when the rule’s exacting
standards are satisfied by the moving party. See Energy W. Mining Co.,
16 FMSHRC 1414, 1419 (1994).

The Judge here granted summary decision for
Lewis-Goetz, concluding that the Secretary’s stipulations were sufficient to
justify the findings that (1) Lewis-Goetz had “an adequate policy in place
requiring employees to wear fall protection” and that (2) it “took adequate
measures to enforce that policy.” 35 FMSHRC at 2196. However, the Secretary did
not stipulate either to the adequacy of Respondent’s policy or to the adequacy
of its efforts to enforce the policy. The Secretary’s stipulations were limited
to the facts that (1) the two employees of Lewis-Goetz who were working at the
Dobbin Ridge Preparation Plant mine at the time of the MSHA inspection and
issuance of the citation in question were both trained on fall protection
devices, (2) Mr. Brown had received such training as recently as 13 days before
the incident, (3) Lewis-Goetz had a disciplinary policy, a copy of which was attached
to the Joint Stipulations, (4) Mr. Brown had a safety belt and tagline
available to him, and (5) Mr. Brown acknowledged to the MSHA inspector that he
had been trained and that he should have been wearing the fall protection
equipment available to him. Joint Stips. 11, 13-14, 21-24.  These stipulations
by the Secretary did not concede the adequacy of the safety program or
Lewis-Goetz’s diligence in enforcing it.

The Judge thus erred in finding that the
Secretary had made stipulations which were sufficient to support her
conclusions regarding the adequacy of the policy or Lewis-Goetz’s enforcement
of it. In considering a motion for summary decision, the judge must view the
record in the light most favorable to the party opposing the motion, and all
inferences must be drawn in favor of the non-moving party. Hanson Aggregates
N.Y., Inc., 29 FMSHRC 4, 9 (Jan. 2007). Here, the Judge drew inferences
regarding the adequacy of Lewis-Goetz’s program against the non-moving party
based on the Secretary’s very limited stipulations. 

The Judge further erred in excluding the
Secretary’s response to Lewis-Goetz’s motion for summary decision.1
After receipt of the Secretary’s response, the Judge’s Attorney-Advisor sent
the parties an email, stating, “[The] Judge . . . did not authorize reply
briefs and will not be accepting them.” App. C to Br. for Sec’y 2. The
Secretary’s counsel then requested reconsideration of the ruling, pointing out
that a responsive filing was contemplated by Commission Rules and did not require
the Judge’s authorization. Id. at 1. However, the Judge again indicated
that she would not consider any reply briefs. Id.

In this exchange, the Secretary was correct. Commission
Procedural Rule 67(d) plainly contemplates that parties may file an opposition
to a motion for summary decision. 29 C.F.R.

§ 2700.67(d). Moreover, Commission Procedural Rule 10(d)
states that “[a] statement in opposition to a written motion may be filed by
any party within 8 days after service upon the party.” 29 C.F.R. § 2700.10(d). Commission
Procedural Rule 8(a) provides that when the “time prescribed for action is less
than 11 days, Saturdays, Sundays and federal holidays shall be excluded in
determining the due date.” 29 C.F.R. § 2700.8(a). Hence, under the Commission Procedural
Rules, the Secretary timely filed a response to Lewis-Goetz’s motion for
summary decision, which should have been considered by the Judge.

The Judge’s refusal to consider the Secretary’s
response had a significant effect.2 The Judge stated in a
footnote that “[i]f it were the Secretary’s position that Lewis-Goetz does not
make a diligent effort to enforce its policy regarding fall protection, a
material issue of fact would be in contest making summary decision
inappropriate in this case.” 35 FMSHRC at 2196 n.3. The Secretary’s response to
Respondent’s summary decision motion makes clear that the Secretary certainly
did contest Lewis-Goetz’s diligence in enforcing its fall protection policy. Thus,
the Judge’s refusal to consider the Secretary’s response prevented the Judge
from understanding that the grant of summary decision was inappropriate under
her own formulation of the issues.

Accordingly, I conclude that the Judge erred in
granting summary decision. Because there was a material fact at issue—whether the
operator diligently enforced its safety program—the Judge should have denied
the motions for summary decision and conducted an evidentiary hearing.3

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

[1] We are
deciding this case in conjunction with our consideration of Nally &
Hamilton Enterprises, 38 FMSHRC , No. KENT 2011-434 (July , 2016),
which also involves the interpretation of 30 C.F.R. § 77.1710, and are issuing
the decisions in both cases on this date.

[2]
Section 77.1710 provides:

Each
employee working in a surface coal mine or in the surface work areas of an
underground coal mine shall be required to wear protective clothing and devices
as indicated below:

. .
. .

(g) Safety
belts and lines where there is danger of falling; a second person shall tend
the lifeline when bins, tanks, or other dangerous areas are entered.

30 C.F.R. § 77.1710.

[3]
The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.

§ 814(d)(1), which distinguished as more serious any
violation that “could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.”

[4] Before the
Judge, the Secretary submitted a document which was titled “Secretary’s
Reply Brief in Further Support of His Motion for Summary Decision and
Determination of Penalty.” The content of the filing was in essence an opposition
to Lewis-Goetz’s motion for summary decision, addressing the case law cited by
Lewis­Goetz but not addressed by the Secretary’s July 5, 2013 motion. The Judge
rejected the Secretary’s filing, informing the Secretary that she would not
accept and consider any reply briefs.

On appeal, the
Secretary argues
that the Judge erred by excluding his responsive filing. The Commission’s rule
on summary decision contemplates that a party opposing the motion may have an
opportunity to file an opposition. 29 C.F.R. § 2700.67(d). However, because the
case was designated for simplified proceedings (29 C.F.R. § 2700, Subpart J),
permitting the Judge an opportunity for greater involvement at an early stage
of the proceeding, the Judge directed the parties to file cross motions for
summary decision. Any error by the Judge in excluding the Secretary’s opposition
is non-material and harmless at this stage of the proceeding, especially in
light of our holding on the merits of this case. Moreover, the arguments raised
in the Secretary’s opposition have been raised on appeal and are now being
addressed. Thus, we find no prejudice to the Secretary as a result.

[5] Nally involved
wearing seat belts, and Southwestern I involved the use of fall
protection. However, those cases, as does this case, turn upon the
interpretation of the language of the opening paragraph of section 77.1710 that
miners “shall be required” to wear the protective clothing and devices
identified in the subsequent subsections.

[6] Also as in Nally,
even if we harbored doubts about the proper interpretation of section 77.1710,
we necessarily would find section 77.1710(i) to be ambiguous, and would defer
to the Secretary’s interpretation as a reasonable and persuasive construction
of the regulation. See Auer v. Robbins, 519 U.S. 452 (1997).

1 This case was designated for
simplified proceedings pursuant to Commission Procedural Rule 102, 29 C.F.R. §
2700.102. Following the parties’ submission of joint exhibits, joint
stipulations, and competing proposed findings of fact, the Judge requested the filing
of motions for summary decision. App. A to Br. for Sec’y 1. The parties
complied with the Judge’s request. Eight business days after the filing of
Lewis-Goetz’s motion, the Secretary filed a response to the Lewis-Goetz motion.
The Secretary’s response analogized to the facts of Southwestern I and
Southwestern II, and argued that Lewis-Goetz failed to provide
site-specific guidelines or any supervision in fall protection.

2 My colleagues in the
majority say that “[a]ny error by the Judge in excluding the Secretary’s
opposition is non-material and harmless at this stage of the proceeding,
especially in light of our holding on the merits of this case.” Slip op. at 3
n.4. Of course, if the case were being considered under the now-overruled
principles of the Southwestern decisions, the error could not be
considered harmless. In any event, my colleagues recognize that the Secretary
does not concede that Lewis-Goetz’s enforcement of its policy was adequate and,
on remand, direct the Judge to consider the adequacy of the enforcement actions
on the issue of negligence.

3 In Nally & Hamilton,
issued simultaneously with this decision, the Judge conducted a full
evidentiary hearing. Based on the record of that hearing, I concluded that the
evidence demonstrated that the operator violated section 77.1710(i) under Southwestern
I because it lacked an appropriate monitoring tool to ensure compliance
with its safety policy. It may be true, as Commissioner Young has determined,
that Lewis-Goetz likewise violated section 77.1710(g) because of a failure of
diligent enforcement of its safety policy. However, I cannot reach such a
conclusion based on the sparse factual record before us.