SECRETARY OF LABOR,

Lewis-Goetz is an independent contractor that offers conveyor belt fabrication and repair services to mines and is identified by MSHA contractor identification “ARK.” Lewis-Goetz hourly employees Gene Franklin and Jesse Brown were performing belt splicing and vulcanizing services on the elevated No. 2 raw coal belt when Ensminger observed them. Brown was on the belt approximately 10 to 12 feet above the ground. He was not wearing a safety harness or tag line. The belt was wet from falling snow at the time and it was 20 degrees Fahrenheit. This condition caused Ensminger to reach the conclusion that Brown was in imminent danger of falling and caused him to issue the order and this citation. In speaking with Ensminger, Brown stated that he was aware of Lewis-Goetz’ requirement to wear fall protection, he had been retrained on it just 13 days earlier and he had it in his tool bag located in the maintenance truck. His explanation for his failure to use it was that he was in a hurry to complete his work due to the weather and he decided not to use it. (Jt. Stipulations of the Parties.)

The parties have submitted joint exhibits which document Brown’s training on the use of fall protection dated November 10, 2009 (OSHA training record) and MSHA annual refresher training on November 10, 2009, November 15, 2010 and November 5, 2011. (Gov. Ex. C.) Also submitted is Gov. Ex. D which is a copy of Lewis-Goetz’ Company Safety Program Disciplinary Program indicating that a failure to wear required PPE is a safety violation subject to a graduated discipline including the possibility of termination for repeated violations. Respondent also states that Brown was in fact disciplined as a result of this violation. (Resp’t’s Br. in Support of Notice of Contest.)

Summary Decision Standards

Commission Rule 67 sets forth the guidelines for granting summary decision:

(b) A motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits 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.

29 C.F.R. § 2700.67(b).

The Commission “has long recognized that [ ] ‘summary decision is an extraordinary procedure,’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under which the Supreme Court has indicated that summary judgment is authorized only ‘upon proper showings of the lack of a genuine, triable issue of material fact.’” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007)(quoting Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994)). In reviewing the record on summary judgment, the court must evaluate the evidence in “the light most favorable to…the party opposing the motion.” Hanson Aggregates at 9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962)). Any inferences “drawn from the underlying facts contained in [the] materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motions.” Hanson Aggregates, 29 FMSHRC at 9 (quoting Unites States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

The issues presented are whether MSHA had jurisdiction over Lewis-Goetz as an “operator” within the meaning of the Act and whether they violated the mandatory standard. There are no contested issues of material fact involved in reaching a conclusion as to these two issues.

Findings of Fact and Legal Analysis

Jurisdiction

The Secretary asserts jurisdiction over Lewis-Goetz as an operator based upon the fact that it provides “services or construction” at a mine as defined under the Act. 30 U.S.C. § 802(d). Lewis-Goetz’ services are essential to the work of extracting coal and its presence at the mine is more than di minimis. Additionally, the Secretary points out that Lewis-Goetz registered with MSHA as a contractor and obtained an MSHA ID number. It did not assert a jurisdictional defense in its responsive pleadings herein and has paid prior civil penalties assessed against it without protest. (Sec’y’s Mot. for Summ. Decision.)

The Respondent asserts that it is not an operator. Their services were very limited, they did not extract coal themselves, there is no evidence that their role at the plant went beyond this one incident and because the violation was written as affecting only one person, it is evident that they did not “come close to the level of operation, control or supervision required”… “to rise to the level of an ‘operator.’” (Resp’t’s Br.)

The Commission has set forth a two-part test to determine whether a contractor is subject to MSHA’s jurisdiction as an “operator.” The first step is to determine the contractor’s “proximity to the extraction process” or, in other words, to determine if its work is “sufficiently related to that process,” and the second part is to determine the extent of its presence at the mine. Otis Elevator Co., 11 FMSHRC 1896, 1900 (Oct. 1989); Joy Technologies Inc., 17 FMSHRC 1303, 1307 (Aug. 1995), aff’d 99 F.3d 991 (10^th Cir. 1996). In further defining the extent of presence required to make a finding that a contractor may be held accountable for violations, the Commission and the Third and Fourth Circuits have found only contact that is “so rare, infrequent and attenuated” as to be considered de minimis, would be excepted from the definition of an operator. National Industrial Sand Ass’n, 601 F.2d 689, 701 (3d Cir. 1979); Old Dominion Power Co. v. Donovan, 772 F.2d 92, 96 (4^th Cir. 1985); Otis Elevator at 1900.

The Respondent’s position that they are not an operator focuses on the fact that they do not control the plant or supervise employees of Arch Coal or perform the extraction of coal. However, they admittedly control, supervise and discipline their own employees working at the mine such as Brown and Franklin. Their second line of defense is that their services are incidental to the mining process and their presence is very limited. It would be extremely difficult at best to find that fabricating, maintaining and repairing conveyor belts is not an essential part of the mining process. Without the means of transporting the ore from the face to the outside plant and storage facilities, the extraction process of mining would be impossible. This bears no further discussion. They clearly acknowledge they are contractors providing essential services to the mining community on a continuing basis by the mere fact that they registered with MSHA and obtained a contractor’s ID and have maintained that status since 2009. They have been filing their reports, such as hours worked with MSHA since 2009 (ranging from 11,147 in 2009 to 14,060 so far this year), as evidence that their presence at the mines is far beyond this one incident as Respondent asserts. They provided yearly MSHA refresher training to their employees at least from 2009 through 2011 as evidenced by joint exhibit Gov. C. They have indeed paid prior assessed penalties without contesting MSHA’s jurisdiction over them as a contractor. (MSHA Mine Data Retrieval System, www.MSHA.gov.) And the mere fact that only one person was cited as affected by this violation is in no way indicative of their status as something other than an independent contractor within MSHA’s jurisdiction. As Respondent is well aware, it is based solely upon the fact that only Brown was in danger of falling. Without further discussion, I find this argument is without merit.

Respondent did not violate the standard

Addressing Respondent’s position first, the cited standard states that employees “shall be required to wear” fall protection. Under the plain meaning of this statute, they assert that they cannot be found in violation as long as they do impose such a requirement and take reasonable measures to assure it is enforced. They cannot be held responsible for being guarantors against an employee’s disobedience or negligence. (Resp’t’s Br., citations omitted.)

The Secretary takes the position that the Act imposes strict liability on all operators who violate a mandatory standard notwithstanding employee misconduct. Several Circuit Court decisions are cited for this proposition; however, that is not the issue here. The issue is whether the standard has, in fact been violated. More precisely, it is whether the language “shall be required to wear” means the operator must only require the miners to wear the protective gear or whether it means miners “shall wear it” imposing liability against the operator if they do not regardless of cause or knowledge on the part of the operator. The difference is critical.

As the Respondent has correctly referenced in its brief, the Commission has spoken to this very issue and has stated that the language of this regulation “does not state that the operator must guarantee that belts and safety lines are actually worn, but rather says only that each employee shall be required to wear them.” The Commission further held that “shall be required to wear” and “shall be worn” have two separate and distinct meanings and operators do not have the duty to guarantee that employees heed its directives. Southwestern Illinois Coal Corp., 5 FMSHRC 1672, 1675 (1983). The duty imposed upon the operator is that they have a safety system in place requiring employees to use safety gear and that they diligently seek to enforce that requirement through such avenues as training, supervision, and disciplinary measures for failure to comply. North American Coal Corp., 3 IBMA 93 (1974); Southwestern Illinois Coal Corp. at 1674-75.

The Secretary has stipulated that Respondent has a written policy that all miners must wear fall protection, they offer at least yearly refresher training on it and by company policy a violation of the requirement to wear fall protection is subject to graduated disciplinary measures including termination. Brown stated to Ensminger when he was pulled off the belt that he was well aware of the requirement to wear the equipment but he intentionally ignored the policy. The gear was readily available to him in his tool bag. (Jt. Stipulations of the Parties) The Secretary has provided documentation that Lewis-Goetz was cited for a violation of this same standard in June 2011. (Sec. Ex. B). No further information surrounding the events leading to this citation was provided. Accordingly, this document alone provides an insufficient basis from which to draw any conclusions contrary to the stipulated facts submitted by the parties.[3] 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 they took adequate measures to enforce that policy.

In sum, I find that Lewis-Goetz has not violated the standard cited by the Secretary and I grant its motion for summary decision.

ORDER

Based on the foregoing, IT IS ORDERED that the Secretary’s motion for summary decision IS DENIED and Respondent’s motion for summary decision IS GRANTED.

Citation No. 8036268 is VACATED and this matter is DISMISSED.

/s/ Priscilla M. Rae

Priscilla M. Rae

Administrative Law Judge

Distribution:

M. del Pilar Castillo, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E., The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306.

John B. Bechtol, Esq., Metz Lewis Brodman Must O’Keefe LLC, 535 Smithfield Street, Suite 800, Pittsburgh, PA 15222.

[1] Hilda L. Solis resigned as Secretary of Labor on January 22, 2013. Deputy Secretary Seth D. Harris is the Acting Secretary of Labor.

[2] Sec. 107(a) of the Act provides “ If upon any inspection or investigation of a coal or other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such mine throughout which the danger exists, and issue an order requiring the operator of such mine to cause all persons, except those referred to in section 104(c), to be withdrawn from, and prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and the conditions or practices which caused such imminent danger no longer exist.”

[3] If 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. I therefore draw no such conclusions as the parties have stipulated to the contrary.