John Fugurski, employed by Consolidation Coal Company

Plain-English summary

John Fugurski and Ernie Kapiskosky were Consolidation Coal supervisors at the Shoemaker Mine. After a coal-car derailment dislodged steel legs supporting a false roof, MSHA alleged that the supervisors knowingly violated 30 C.F.R. § 75.202(a) by allowing travel through the area before all support was restored. Judge Avram Weisberger found that the roof-support standard was violated, but found that the evidence did not establish that either supervisor knowingly authorized, ordered, or carried out the violation. The judge dismissed both section 110(c) cases.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.202(a); 30 U.S.C. § 820(c)
• Outcome: The alleged knowing violations were not proven, and both section 110(c) cases were dismissed.
• Key point: A supervisor's failure to correct a violative condition is not a knowing violation when the supervisor reasonably inspected the area and did not ignore information showing that the condition existed.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. FURGURSKI & KAPISKOSKY
DDATE:
19920803
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. WEVA 91-2094
PETITIONER A. C. No. 46-01436-03861-A

      v.                                    Shoemaker Mine

JOHN FUGURSKI,
EMPLOYED BY
CONSOLIDATION COAL COMPANY
RESPONDENT

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 91-2095
PETITIONER A. C. No. 46-01436-03663-A

      v.                                    Shoemaker Mine

ERNIE KAPISKOSKY,
EMPLOYED BY
CONSOLIDATION COAL COMPANY
RESPONDENT

                                 DECISION

Appearances: Tana M. Adde, Esq., U.S. Department of Labor,
Office of the Solicitor, 4th Floor, Arlington,
Virginia for Petitioner;
David J. Hardy, Esq., Jackson & Kelly, Charleston,
West Virginia for Respondent

Before: Judge Weisberger

 These cases which have been consolidated for purposes of

hearing, are before me based on petitions for assessment of civil
penalty filed by the Secretary of Labor (Petitioner) seeking
civil penalty pursuant to section 110(c) of the Federal Mine
Safety and Health Act of 1977 (the Act), 30 U.S.C. 820(c).
Pursuant to notice the cases were scheduled for April 7 and 8,
1992 in Pittsburgh, Pennsylvania. Subsequently, Respondents
presented a request in a telephone conference call with
Petitioner and the undersigned, to have the cases heard instead
in Steubenville, Ohio. Petitioner did not object to this request
and the cases were rescheduled and subsequently heard in
Steubenville, Ohio on the dates previously assigned. Subsequent
to the hearing, the parties each filed proposed findings of fact

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and a brief on July 14, 1992. Respondents filed a reply brief on
July 28, 1992, Petitioner did not file any reply brief.

                Findings of Fact and Discussion

                        I. Introduction

 Sometime prior to 1971 when the entry in question was

originally developed, the roof was supported by bolts. Additional
bolts were also installed. In 1977, a false roof was installed
below the original roof. The false roof consisted of 12 foot
wooden boards bolted between horizontal I-beams that were placed
4 feet apart and perpendicular to the ribs of the entry. The
I-beams, 12 feet long, 6 inches wide, and 6 inches high, were
supported by vertical steel legs that were approximately 6 feet
in height. Square pad plates approximately 6 feet by 6 inches by
6 inches wide were welded to the tops of the vertical beams and
were bolted to the horizontal beams. Subsequent to the
installation of the horizontal I-beams, wooden material, 2 inches
thick, approximately 5 feet high and 4 feet wide was placed
between the vertical legs. At a later date, straps were placed in
the middle of the horizontal beams to support them.

 During the day shift on March 19, 1990, a line of coal cars

travelling on tracks in the entry in question derailed,
dislodging some of the vertical steel legs. The next day, during
the afternoon shift, when the area was examined by MSHA inspector
Donald Moffitt, Jr., he issued a Section 104(d)(2) Order alleging
a violation of 30 C.F.R. 75.202(a) in that 13 steel legs were
dislodged, and no action was taken to support the area until 4:00
p.m., on the next shift. Subsequently, Petitioner filed petitions
pursuant to Section 110(c) of the Act alleging in essence that
Respondents knowingly violated Section 75.202(a) supra.

            II. Violation of Section 75.202(a) supra

 Section 75.202(a) provides as follows: "The roof, face and

ribs of areas where persons work or travel shall be supported or,
otherwise controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock bursts."

 The area in question denominated as "Leo's turn" commences

immediately inby a steel arch covering the intersection of the
entry in question and an adjoining entry, and continues inby
approximately 550 feet. According to Moffitt, when he examined
the area on March 20, he looked up in the gap between the arch
and the first horizontal beam immediately inby the arch, and saw
that one roof bolt was 3 feet below the roof, and two other bolts
were 1/2 to 2 feet below the roof. He also observed that material
around the bolts had deteriorated, and that there were stones and
coal on the horizontal beams. Moffitt indicated that

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he was able to see only 1 to 2 feet inby the arch and only 2 feet
along the length of the beam, and that he could not make an
adequate examination of the roof bolting system by looking over
the first I-beam outby, because the beams were "uptight against the
mine roof" (Tr.94).

 In addition, Moffitt testified that he climbed up the rib on

the clearance side of the entry, at a point approximately 12 feet
further inby. He said that he saw 2 bolts that were dislodged,
and that there was deteriorated material around the bolts. He
said that he could not see more than a foot and a half, looking
diagonally across the entry. At another point 10 to 12 feet inby
on the clearance side, he saw 2 bolts dislodged and some material
on the beams. He indicated that he could only see 2 bolts because
the beams were "uptight against the roof", and there was material
on the beams (Tr.104).

 In essence, according to Moffitt, since he observed that

some roof bolts were not providing support, and that it was
impossible to examine the entire original roof in the area, he
concluded that the system of horizontal I-beams and vertical
support legs were providing the main support for the roof. Hence,
according to Moffitt, if some vertical legs were dislodged, then
the roof was unsupported.

 Robert E. Merrifield an MSHA inspector/roof control

specialist opined that the vertical legs create a barrier between
the tracks and the ribs, in order to protect the tracks from
sloughage off the ribs, but that their primary function is to
support the roof. He explained that, given the fact that roof
bolts were loose, and that it was impossible to examine and
inspect the integrity of the roof, he concluded that the roof was
not adequately supported.

 Howard Snyder a union safety-man who accompanied Moffitt

corroborated the latter's testimony with regard to the
observation of bolts that were not firmly in place. None of the
Respondents' witnesses contradicted the testimony of Moffitt and
Snyder with regard to the existence of bolts that were not
providing support.(FOOTNOTE 1)

 Thomas W. Duffy, a safety inspector employed by

Consolidation Coal Company ("Consol"), has worked for 25 years at
the subject mine. He testified that he had observed the entry in
question when it was originally developed, and saw that it was

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bolted with extra bolts. He indicated that when he observed the
entry area in question on March 20, 2 or 3 bolts were dislodged
in the center of the roof. However he indicated that, looking
outby approximately five feet, inby 20 feet, and from the wire
side to the clearance side, he did not see any indication of
unsupported roof. In connection, due to the expertise of
Merrifield, I place considerable weight on his testimony that,
generally, bolts are placed in patterns, and that even though
only one bolt is not in place, destabilization of the roof could
result. Hence, based on the testimony of Snyder, Moffitt and
Merrifield, I find that, in the area in question, at least 6
bolts were not in place firmly against the roof, and were not
providing support.

 Ernie Kapiskosky, one of Consol's shift foremen testified

that he had installed the steel sets that are in issue, and that
their purpose was to keep the air in the mine from the roof in
order to prevent it from deteriorating, and also to keep
sloughage from the roof off the track. In the same fashion, Mike
Yarish, a section foreman, testified that foremen who supervised
the installation of the steel sets had told him that the false
roof was installed to keep sloughage from coming down, and to
keep air velocity off the top off the roof.

 Taking into account the width of the horizontal I-Beams,

their placement four feet apart, their being supported by
vertical steel beams with a supporting surface approximately 6
inches by 6 inches, and their being placed tight against the
surface of the roof, I find credible the testimony of Moffitt and
Merrifield, that, in essence, the steel sets provided some
measure of support to the roof. Even though the horizontal
I-beams were supported by straps, there is no evidence that the
straps themselves provide roof support. Hence, when some vertical
steel beams were dislodged and not replaced, some degree of roof
support was lacking. Accordingly I find that Section 202(a)
supra, was violated.

 III. Whether the violation of Section 75.202(a) supra was

knowingly authorized, ordered or carried out.

 Sometime during the day shift on March 19, 1990, coal cars

driven by Everette Auten derailed, and knocked out some of the
vertical steel legs along the wire side of the entry at Leo's
turn. Neither Auten nor Charles Whitlatch, another motorman,
counted the number of legs that were knocked out.

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Howard Snyder, a track timberman, and member of the union
safety committee, indicated that when he went to the area in
question on March 19, at approximately 4:30 p.m., he observed
that there were 12 horizontal I-beams without any legs under
them, and that there were 3 to 5 legs that were dislodged and
leaning against the rib. Although Whitlatch and Auten did not
count the number of legs that were knocked out, they each
indicated that there were "probably" five legs dislodged.

 Richard L. Schrickel, a foreman who was present on March 19,

testified that 4 to 6 legs were dislodged and in the ditch, and
that he subsequently removed them after the violation was abated.
The testimony of John P. Figurski an assistant superintendent who
also was present was to the same effect. Ernie Kapiskosky, the
shift foreman, observed on the day of the derailment that five
legs were out, and one was not strapped which he then jacked.

 I thus find that, on the basis of the weight of the

testimony, that at least five steel legs were knocked out by the
derailment on March 19, 1990.

                     a. Respondents Conduct

 After Kapiskosky was advised of the derailment and went to

Leo's turn, he examined the area in question for "immediate"
movement in the roof occasioned by the derailment, and looked at
beams, straps, bolts, and lag boards. He also looked to see if
any dust had been "jarred" (Tr.104). He did not see any indicia
of movement. Kapiskosky testified that he pulled himself up to
the false roof on the wire side at shoulder level with the
planks, and observed that bolts were intact and that in general
the roof looked "sufficiently supported". (Tr. 104). At another
point 6 to 8 feet further outby on the wire side he again pulled
himself up to the false roof, and observed up that the bolts were
intact, and that the beams were flush up against the roof. After
the area was cleaned and the legs that were dislodged were
removed, he authorized resumption of the travel and
transportation through the area.

 John Figurski testified that he also inspected most of the

beams and there was nothing to indicate the existence of a bad
roof. He said that bad roof is evidenced by twists in the beams
which indicate weight has been placed upon them. In addition,
Figurski said that if the roof is bad, boards will separate and
crack, and bolts will drop out or be sucked up the straps holding
the beams. However, he did not see such evidence of bad roof, and
he concluded that the roof was supported.(FOOTNOTE 2) He agreed with
Kapiskosky's judgment that travel could be resumed in the area.

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b. Petitioner's case

 Merrifield opined that if only 5 legs had been knocked out,

the entire area at Leo's turn, rib-to-rib, and extending 48 feet
from arch to arch should have been examined as ". . . all these
things are more or less tied into one another. When you disturb 1
or 2 or 5 or 15 or how many there is, it has adverse effects on
the other ones or it could have" (Tr.305). (sic) He further
stated, in essence, that a conclusion that Leo's turn was
properly supported can not be based on an examination limited to
the area directly above where the steel legs had been dislodged.

 Both Moffitt and Snyder testified that on March 20, they

walked the entire area covering a distance of approximately 48
feet inby the arch at Leo's turn, and that the only places where
it was possible to see above the false roof were at the three
areas testified to by Moffitt. In this connection, Moffitt
testified that he spent approximately 2 to 2 1/2 hours examining
the entire area. Also, Moffitt was asked how hard it was to see
over the top at the first I-beam outby the arch where he had
observed 3 bolts not in place, and he answered as follows: "I
thought it was fairly easy to look for" (Tr.81). Also, Moffitt
and Snyder testified that it would have been impossible to have
climbed up to look at the false roof on the wire side as
testified to by Kapiskosky, because the beams were flush up
against the roof and there was no room. I do not find this
testimony to be of sufficient weight to impeach the testimony of
Kapiskosky who, based upon his demeanor, I find credible with
regard to what he actually did. In this connection I note that
none of the Petitioners' witnesses attempted to climb up to
shoulder level with the planks on the wire side as did
Kapiskosky.

 According, to Synder, Joe Fahay, a motorman, had complained

to him about motors rubbing against the vertical steel legs that
had been dislodged. Synder also said that on March 19, Whitlatch
and Auten had come to him and told him of their concern about the
roof falling subsequent to the derailment which had dislodged
some legs. However, the record does not establish that either of
these two had complained to either Figurski or Kapiskosky with
regard to any hazardous roof condition. In their testimony Auten
and Whitlach each expressed concern that the roof could possibly
have fallen after the derailment, but did not indicate any facts
which formed the basis for their conclusions.

 According to Snyder, on March 19, shortly before the

commencement of the evening shift he informed Yarish that the
violation should be corrected "before they run" and Yarish said
"yeah, I know we do." (Tr.246) Snyder stated that Yarish called
the shift foreman and told him that the legs were dislodged, and
that some beams needed either jacks or posts to be set under
them. He also stated that he told Yarish that the straps holding

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the I-beams were more then 6 feet from the rib, and Yarish agreed
that additional support was needed.

 Yarish indicated that he could not recall the conversation

with Snyder, and that on his shift he installed 13 wooden post.
When asked why he installed 13 posts, Yarish stated installed
them to replace the legs that were dislodged, and that "I know
that if I didn't put them legs back in that they would've been
put in before" (Tr. 258) (sic). Yarish said he "felt comfortable
with the posts being there" (Tr.260). I find that Snyder's
version more credible based upon my observations of both of these
witnesses.

                          c. Case Law

 In Kenny Richardson, 3 FMSHRC 8 (1981), aff'd 689 F.2d 632

(6th Cir. 1982) cert. den. 461 U.S. 928 (1984), the Commission
reviewed the legislative history of the term "knowingly" as used
in Section 109(c) of the Federal Coal Mine Health and Safety Act
of 1969, (the 1969 Act), whose exact language was continued in
Section 110(c) of the 1977 Act and held that the term means
"knowing or having reason to know", (Kenny Richardson, supra, at
16) Specifically, the Commission stated as follows: "If a person
in a position to protect employees safety and health fails to act
on the basis of information that gives him knowledge or reason to
know of the existence of a violative condition, he has acted
knowingly and in a manner of contrary to the remedial nature of
the statute." Kenny Richardson, supra at 16.

 In Roy Glenn, 6 FMSHRC 1583 (July 1984), the Commission

applied its holding in Kenny Richardson supra to a factual
situation where the violation of a mandatory standard did not
exist at the time of the alleged failure of the corporate agent
to act. The Commission stated as follows:

      We hold that a corporate agent in a position to protect
 employee safety and health has acted "knowingly" in
 violation of section 110(c) when, based upon facts
 available to him, he either knew or had reason to know
 that a violative condition or conduct would occur, but
 he failed to take appropriate preventative steps. To
 knowingly ignore that work will be performed in
 violation of an applicable standard would be to reward a
 see-no-evil approach to mine safety, contrary to the
 strictures of the Mine Act. (6 FMSHRC supra at 1586).

 Further, the Commission in Roy Glenn, supra at 1587,

provided the following interpretation of its concerns and
principles it had set forth in Kenny Richardson, supra:

        ***[t]he Commission held in Kenny Richardson that a
        supervisor's blind acquiescence in unsafe working
        conditions would not be tolerated. Onsite supervisors
        were put on notice by our decision that they could not
        close their eyes to violations because of self-induced
        ignorance. (Emphasis added.)

 Based on the language of the Commission in Kenny Richardson,

supra, and Roy Glenn, supra, set forth above, wherein the
Commission described the type of conduct that falls within the
scope of the term "knowingly" in the context of Section 110(c)
supra, I conclude that a violation of Section 110(c), supra
occurs where one ignores an unsafe condition or ignores
information that gives him reason to know of the existence of a
violative condition. Applying these principles to the case at
bar, I find that neither Respondents "knowingly" violated Section
75.202(a) supra. Figurski and Kapiskosky, testified that they
examined the roof in the area, and did not observe any of the
indicia indicative of a bad roof. Neither did Shrickel and Yarish
who were also in the area on March 19. None of Petitioner's
witnesses specifically contradicted or impeached this testimony
with regard to the non-existence of the various factors testified
to by Respondents' witnesses as being indicative of a bad roof.
Also, since none of Petitioner's witnesses actually climbed or
attempted to climb on the rib of the wire side to get a view of
the roof above the false roof, I accept Kapiskosky's testimony
that when he did climb in these areas the roof observed by him
was well supported. For these reasons I find that neither
Respondents ignored any information that gave them reason to know
the existence of a violative condition. I conclude that it has
not been established that Respondents knowingly violated Section
75.202(a).

                                ORDER

    It is hereby ORDERED that this case be dismissed.


                        Avram Weisberger
                        Administrative Law Judge
                        (703) 756-6215

FOOTNOTES START HERE-

1. Respondents' witnesses testified they did not observe any
   indicia of bad roof on April 19 and 20. I do not find this
   testimony sufficient to contradict or impeach the testimony of
   Moffitt and Snyder with regard to the condition of the bolts
   actually observed by them.

2. Testimony to the same effect was provided by Schrickel
   and Yarish Shrickel, who also was present on March 19, opined
   that the roof was properly supported as there was no movement of
   the boards, or movement or bowing of the beams. According to
   Yarish when he arrived at Leo's turn on March 19 after 4:00 p.m.,
   the boards between the beams "did not take any weight", as the

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bolts "didn't stuck up through the boards". (Tr. 248) (sic).