FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
Pennsylvania Avenue, NW, Suite 520N
Washington, D.C.  20004-1710

                                                               

July 24, 2013

SECRETARY OF LABOR,    MINE SAFETY AND HEALTH     ADMINISTRATION (MSHA),   Petitioner, v. NALLY & HAMILTON ENTERPRISES,  Respondent

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CIVIL PENALTY PROCEEDING DOCKET NO. KENT 2011-434 A.C. NO. 15-19076-240278   Mine Name: Chestnut Flats

   

DECISION

 

Appearances:              Brian D. Mauk, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Petitioner
Martin J. Cunningham, Esq., Bingham Greenebaum Doll, LLP, Lexington, Kentucky, for the Respondent S. Thomas Hamilton, Jr., Esq., Saltsman & Willett, PSC, Bardstown, Kentucky, for the Respondent  

Before:                        Judge Moran  

Introduction

 

            This matter involves a citation issued for an alleged violation of 30 CFR § 77.1710(i) and its requirement that “employee[s] … shall be required to wear … [s]eat belts in a vehicle where there is a danger of overturning and where roll protection is provided.”   For the reasons which follow, the Court, finding that the mine’s employees were required to wear seat belts, VACATES the citation and DISMISSES the proceeding.  

 

Citation No. 8362516

 

            At the outset, while the facts are herein related, it should be noted that there were no genuine disputes about the facts and that this case turns upon the Court’s construction of the cited standard.   

Findings of Fact  

            On May 5, 2010, MSHA Inspector Arthur Smith issued Citation No. 8362516, after conducting an accident investigation of a non-fatal injury in which a rock truck overturned at the Nally & Hamilton Chestnut Flats Mine on April 21, 2010.  The driver of the truck was not wearing a seat belt at the time of the accident. Tr. 16.   

            MSHA Inspector Arthur Vincent Smith[1] conducted the accident investigation at the Chestnut Flats Mine following the April 21 incident.[2]  Smith began the investigation at the mine on April 29, 2010; the investigation then continued on May 3 and 5, during which time he visited both the mine and the home of accident victim James Patterson. Tr. 19. When Inspector Smith arrived at the mine on April 29, he talked with the mine foreman, Michael Lewis, about the investigation he would be conducting for the April 21 accident. Tr. 23.  

Prior to his investigation, mine officials sent Inspector Smith a written report that documented the April 21 accident.  Tr. 29.  Smith’s understanding of the accident during his investigation was based on this report, for the truck had been moved from its overturned position prior to the investigation and no pictures were supplied. Tr. 29-30.  Smith explained that the incident occurred at a dump site during the night shift on April 21 around 4:00 a.m., and as James Patterson was backing out to dump “he got over too far to the right, and he drove over the berm.” Tr. 30-31. The truck backed over the berm and then initially rolled over on its right side, before ending upside down, having rotated 180 degrees.  Tr. 31-32.  

            Upon his arrival at the accident site on April 29, Inspector Smith examined the triple 7D rock truck, which was involved in the accident on April 21.  This is a large truck, capable of carrying 100 tons. Tr. 27, 31.  The truck had been moved since the accident from its overturned position and re-situated in an upright position on level ground. Tr. 32-33. As he inspected the truck, Smith noticed that the truck cab had a rollover protective structure that had broken off during the roll-over accident. Tr. 26.  The Inspector met with the welders who were repairing the cab protector on the damaged truck, and determined that the accident was not attributable to any truck defect.  Tr. 34-35. He also checked the truck’s seat belt, which he determined was operable. Tr. 36.  

            Accident victim James Patterson was not at the mine during Inspector Smith’s April 29 investigation, as he was under doctor’s orders at the time not to return to work. Tr. 45.  Inspector Smith continued his investigation on May 3 when he visited James Patterson at his home.

Mr. Patterson and his wife were at home during this May 3 meeting; no other MSHA or Nally & Hamilton representatives were present on that day. Tr. 44. Smith did not take a written statement from Mr. Patterson, nor did he record their conversation. Tr. 45.[3] The Inspector stated that he “asked [Patterson] about the accident, and we discussed  . . .when it happened and why it happened, how it happened. And I asked him, I said, were you wearing a seatbelt.  He said, well, I won’t lie to you. He said, no, I was not.”[4]  Tr. 40.  

            After meeting with Mr. Patterson, Inspector Smith returned to the Chestnut Flats Mine on May 5 to continue his investigation. Tr. 53.  There, he again spoke with mine foreman Michael Lewis and informed him that he was going to issue a citation because the victim was not wearing a seatbelt at the time of the accident. Id.  Smith recollected that Mr. Lewis then told him that the company had a policy requiring miners to wear seatbelts at all times while on mobile equipment. Id.  The Inspector did not remember whether Mr. Lewis showed him the company’s written policy at that moment, nor could he recall the first time he saw the mine’s policy. Tr. 56-57.  

            In issuing the Citation, Inspector Smith explained that he marked it as “moderate negligence” because “there was a mitigating circumstance, which was a company policy…It’s not like the company knew [Mr. Patterson] wasn’t wearing [the seatbelt]. They weren’t aware of it at all, and yet they had a policy to require him to wear it.” Tr. 66.   Smith informed that the  mine’s policy requires that all mobile equipment operators, not just rock truck operators, wear a seatbelt. Id.    

 

            Regarding the practice of wearing seatbelts at the mine, Inspector Smith advised that he spoke with the night shift foreman, Mr. Asher, about this and that he informed that “if they were found operating mobile equipment without a seatbelt, that they had to spend eight hours in a classroom after that. The company gave them the class. They couldn’t work. They had to attend a class concerning seatbelts.” Tr. 70.  Inspector Smith also stated that, during his previous inspections at the Chestnut Flats Mine, he had seen miners wear seatbelts while operating mobile machinery such as bulldozers, loaders, and rock trucks.  Tr. 71, 81.  

            On cross-examination, Inspector Smith acknowledged that the cab of the rock truck was high enough that no one from Nally & Hamilton could see from the ground level whether an operator in a cab of the truck was, or was not, wearing a seatbelt. Tr. 83.   Accordingly, the Inspector agreed that a person standing on the ground next to the truck would have no way of knowing whether the operator inside the cab was wearing a seatbelt. Id.  Smith further agreed that Nally & Hamilton enforced its seatbelt requirement policy and that it was clear to the vehicle  operators whom he spoke with during the investigation that seatbelt usage was required. Tr. 88-89. When asked who was negligent in this situation, Mr. Patterson or Nally & Hamilton, Smith responded that it was Mr. Patterson who was negligent. Tr. 90.  

            James Tracy Creech, who has worked as safety coordinator for all Nally & Hamilton Enterprises mines, including the Chestnut Flats Mines, also testified.  Tr. 101-102. His duties as safety coordinator include traveling with MSHA inspectors and conducting annual retraining and mine emergency training for METs or first state training. Tr. 101.  

Mr. Creech stated that the Respondent had a written policy in place requiring that anyone operating a piece of equipment with rollover protection must wear a seatbelt:

 

It’s company policy that any time you operate a piece of equipment with rollover protection, you must have a seatbelt on. Plus it’s also a company policy that if you drive a company vehicle anywhere on the public roads, you must have a seatbelt on. Tr. 104.

 

Rule No. 8 of the company’s policy and safety rules, in effect under that title at the time of Patterson’s accident, is communicated to employees upon their hire and every year during their eight-hour annual retraining. Tr. 106, 107; Exh. R1.  Mr. Creech explained:

 

Every year, each employee has to have eight hours of annual retraining. During that annual retraining, they go over their company policy and safety rules. In the class that I do personally, I read each company policy and safety rule, and then down at the bottom it says, I have read or had read to me; and I’ll read that, and I say by signing below you agree to abide by these company policy and safety rules. And if they sign it, then they agree to abide by the company policy and safety rules. Tr. 105.

 

Rule No. 8 reads: “Wear seat belts at all times where equipment is equipped with rollover protection system.” Exh. R1.  The Respondent presented evidence that James Patterson signed this company policy on November 10, 2004 and again at company retraining sessions in 2005, 2006, 2007, 2008, and 2009. Tr. 110, 116; Exh. R1, R2, R3, R4, R5, R6.    

In the event this policy is violated, the employee is issued a written warning or is required to attend an eight-hour retraining. Tr. 105-06.  Creech could only recall one instance, since starting at the mine in 1997, in which an employee was disciplined for violating the seatbelt usage policy. Tr. 106-108. This instance involved an employee who was required to attend an eight-hour safety retraining after failing to wear a seatbelt while driving on a public highway.  Thus, the mine’s policy was enforced even where an employee was off Nally & Hamilton’s  property. Tr. 106, 125.  

At the annual retraining sessions, along with reading through the company policy with the employees, Mr. Creech would also show the employees videos that “show the advantages of wearing a seatbelt versus the disadvantages of not wearing a seatbelt.” Tr. 119, 122; Exh. R7 through R11.  Mr. Patterson watched these videos prior to the April 21 accident.  Tr. 122.  

In addition to signing the company policy upon starting employment and attending annual retraining, Creech testified that the foremen also try to conduct a monthly safety talk with the employees during which “they talk about seatbelts, berms, highwalls, and things on the job specific that they need to talk about with their men.” Tr. 106. The foremen would use these five to ten-minute meetings to “explain to them what all is going on, what they need to be looking for, things that have happened.” Tr. 128. At these meetings the foremen will stress the importance of wearing seatbelts, keeping their berms up, and doing pre-shift examinations so the employees will know if something is wrong with the equipment. Id.  

Mr. Creech also agreed that it is not possible for a foreman to see into the triple 7D rock truck unless one climbs up to the cab or the truck operator opens the truck’s door so the foreman can see into the cab. Tr. 126.  The cab area of triple 7D trucks is 108 inches, or about 9 feet, from the ground. Id.  These trucks have lap seatbelts, so even if someone outside the cab could see the operator through the windshield, one could not see down to the area where the seatbelt would be fastened.  Id.  

When asked about the repercussions for multiple seatbelt violations, Mr. Creech testified that such an issue has not yet occurred, but it could very likely result in that employee’s dismissal. Tr. 127. He noted that “we have over 250 people laid off who would love to come back to work.  And I’m sure if they got the second [violation], we would be sending them home and having someone else come in to do their job.” Id.  Creech attributed the fact that the mine has only experienced one seatbelt usage violation to the company’s emphasis on its policy, and that “the guys know that if they get caught without them, there will be consequences.” Tr. 128. He also noted past accidents in which a triple 7D rock truck had overturned a complete 360 degrees, but the operator was wearing his seatbelt and “the only scratch he had was a little place on his cheek…where a rock came through the side glass when it was flipping over and hit him on the cheek.” Tr. 129. Creech would often use such examples when explaining to employees the importance of wearing a seatbelt.  Id.  

The Parties’ contentions  

            The Secretary contends that the Respondent has misconstrued the plain language of Section 77.1710 and violated the standard by failing to diligently enforce its seatbelt-wearing policy. Sec. Br. 5. It submits that the Respondent’s argument, that it is in compliance because it requires employees to wear seatbelts, would essentially rewrite the standard to provide that “[e]ach operator shall require employees to wear protective clothing and devices” rather than the standard’s actual wording that “[e]ach employee…shall be required to wear protective clothing and devices.”  The Secretary maintains that because the standard places the seatbelt requirement on “each employee,” an operator’s written policy, as it is only a piece of paper, does not provide protection to a miner.  Rather, the seatbelt itself provides this protection. Sec. Br. 5-6.    

The Court would comment that the Secretary’s argument, focusing upon the words, “each employee,” misses the full context of the standard which provides that employees shall be required to wear protective equipment.  Had it been the Secretary’s objective, the standard could have simply stated that “employees shall wear” the identified protective equipment.  However, as the Commission has noted in a similar context, such language was not employed here.   

            The Secretary also maintains that Respondent did not diligently enforce its seatbelt policy per the requirements of Section 77.1710, as set forth in Southwestern Illinois Coal Corp., 5 FMSHRC 1672 (Oct. 1983).  Respondent has not quantified how much of its annual safety training is devoted to seat belt safety.  Sec. Br. 6.  Furthermore, Respondent’s safety coordinator, Mr. Creech, admitted that the seat belt safety policy had only been enforced one time since 1997. Id.  Mr. Creech also conceded that one cannot physically see whether a rock truck driver is wearing a seatbelt when standing on the ground or driving by in a truck, and Respondent presented no evidence that mine management performed visual inspections to ensure that employees were wearing their seatbelts. Id.  In the Court’s view, these arguments are either irrelevant or could be equally construed to reach a different conclusion than the Secretary suggests.   

 

Referencing Commission and ALJ decisions that have upheld violations of various Section 77.1710 provisions, despite the existence of an operator policy requiring the use of the cited protective clothing and devices, the Secretary points to.Austin Power, Inc., 9 FMSHRC 2015 (Dec. 1987); Middle Kentucky Construction, Inc., 2 FMSHRC 1137 (May 1980) (ALJ Steffey); and Reading Anthracite Co., 32 FMSHRC 399 (April 2010) (ALJ Bulluck).  The latter held that Section 77.1710(i) requires the “use of a seatbelt,” and that the operator was moderately negligent where an employee had been trained but did not wear a seatbelt and the operator did not diligently enforce its policy because drivers were not constantly reminded of the necessity of seat belts.  The Court observes that these decisions are factually distinct from the present matter and that the decisions of fellow administrative law judges have no precedential effect.[5] 

 

            Respondent contends that the record does not support a basis for the citation nor does it support the severity urged by the Secretary.  As with the Secretary, the Respondent also cites to Southwestern Illinois Coal Corp., 5 FMSHRC 1672 (Oct. 1983) in support of its position.  Respondent asserts that it satisfied its duty of diligent enforcement under Section 77.1710 and,

as no violation occurred, the citation should be vacated.  Respondent highlights that the Commission has stated that an operator’s obligation is not simply to have a policy, but also to require seatbelt usage in the policy, educate and train employees regarding the policy, and enforce the policy on the operator’s employees, all of which the Respondent has done.  

Arch Mineral Corp., 5 FMSHRC 468, 472-74 (March 1983).  It adds that the mine’s safety belt usage requirements are memorialized in its written company policy, which each miner must sign before beginning employment and that this policy is reiterated every year, during annual retraining and  required safety videos.  Nally & Hamilton also requires employees to complete pre- and post-shift reports which include affirming whether the seat belt is operable. Punishment for violation of the seatbelt policy is strict, and includes dismissal for repeat offenders.[6] Resp. Br. 7.   The Court agrees both with the Respondent’s characterization of its policy and the description of its application.    

Discussion  

The cited standard, Section 77.1710(i) 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 . . . (i) Seatbelts in a vehicle where there is a danger of overturning and where roll protection is provided.”  (emphasis added).  

In Southwestern Illinois Coal Corp., 5 FMSHRC 1672 (Oct. 1983), (“Southwestern”),

the Commission followed the Department of Interior Board of Mine Operations Appeals’ reading in North American Coal Corporation, 3 IBMA 93 (1974), of a similarly-worded standard, which standard employed the same “shall be required to wear” phrase.   In the Southwestern case

“safety belts,” as opposed to “seat belts,” were in issue, with the standard providing, in pertinent part, “Each employee . . . shall be required to wear protective clothing and devices as indicated below . . . (g) Safety belts and lines where there is a danger of falling . . .”  Section 77.1710(g).   The Commission agreed that the meaning of the phrase “shall be required to wear” meant that operators must (1) establish a safety system requiring the wearing of the clothing or equipment and (2) enforce the system diligently.[7] Id. at 1674-75.  

Referring to the Interior Board’s decision in North American Coal Corp., 3 IBMA 93, 107 (1974), (“North American”), the Commission reasoned:

 

The intended effect of [the Interior Board’s] construction was that if a failure to wear the protective clothing and equipment was ‘entirely the result of the employee's disobedience or negligence rather than a lack of requirement by the operator to wear them, then a violation has not occurred…[t]he 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 plain meaning of “require” is to ask for, call for, or demand that something be done. . . . Accordingly, when an operator requires its employees to wear belts when needed, and enforces that requirement, it has discharged its obligation under the regulation. We respectfully disagree with our dissenting colleagues that “shall be required to wear” means “shall be worn.” The two phrases are not the same, and we do not find persuasive a reading that converts a duty to require into a duty to guarantee. Certainly, the purpose of the standard is to protect miners, but the standard as written provides for that protection by directing that operators require the belts to be worn.  Id. at 1675. (citations omitted).

 

The Court considers the Secretary’s arguments to have an otherworldly construction, at odds with the plain wording of the standard and with Commission precedent.  Thus, while the Secretary’s contention[8] that it is not the mine’s written policy, but the safety belts themselves  which protect miners while operating mobile machinery, is true, the Secretary’s conclusion from that observation --  that any employee’s failure to wear a safety belt constitutes a violation -- ignores the standard’s language.    

As the Respondent has noted, the level of vigilant enforcement necessary to insulate an operator from liability, under the sweeping construction of this standard urged by the Secretary, contravenes the Commission’s own pronouncements about Section 77.1710’s meaning.  It points to the Commission’s observation in Southwestern Illinois Coal Corp., that the standard’s language imposes upon the operator a duty to require, not a duty to guarantee. 9 FMSHRC at 1675.  Both Inspector Smith and Safety Coordinator Creech specified the numerous safety measures that the mine routinely employed to enforce its seatbelt policy. Not only did Nally & Hamilton require its employees to sign off on agreeing to the mine’s safety policies, including seatbelt usage, before beginning employment, but each miner also revisits this policy every year at the company’s annual retraining. The truck’s driver, James Patterson, was among the Nally & Hamilton employees who agreed to this safety policy before starting employment at the mine; he was further reminded of these rules every year at annual retraining. Tr. 115-116. The Court agrees that, to hold an operator liable for Mr. Patterson’s noncompliance in the face of an established company policy, which policy Mr. Patterson regularly acknowledged, would exceed the scope of the provision.  It is also noteworthy that both MSHA Inspector Smith and Nally & Hamilton’s Safety Coordinator Creech agreed that it was not possible for a mine foreman or other supervisor, standing at ground level, to see whether a truck operator is wearing a seatbelt while sitting in the truck cab, which rises nearly 10 feet above ground level. Tr. 83, 126   It is no small matter to observe that, under these facts, no reasonable additional steps could have been taken to assure that its employee was wearing the seat belt for this vehicle, given the undisputed record that one could not tell from the ground if the lap belt was being worn.  

As noted earlier, while the Secretary has asserted that Mr. Creech’s recollection of only one instance in which an employee was disciplined for violating the seatbelt policy suggests Respondent’s failure to diligently enforce its policy, that same information could equally be construed to show that the Respondent’s policy was effective.  In support of this observation, it is noted that Inspector Smith had observed miners wearing safety belts during his past inspections at the mine, and Mr. Creech expressed that the possibility of termination incentivized miners to follow the safety rules, particularly in light of the company’s recent layoffs.  Tr. 81, 126.

Mr. Creech also recalled an instance, similar to Mr. Patterson’s accident, in which the miner’s triple 7D truck completely overturned.  Tr. 129.  The miner in that instance, however, was wearing a seatbelt and suffered no injuries, and Creech would often use that example to illustrate the importance of seatbelt usage to the mine’s mobile equipment operators. Id.  Accordingly, not  only did the mine’s seat belt rule, in place at the time of Mr. Patterson’s accident, mandate employee compliance with the safety belt policy while operating mobile equipment, but the testimony of both witnesses also established that the mine diligently enforced this policy.  

In conclusion, it is undisputed that the rock truck was not defective at the time of the accident, that Nally & Hamilton did not know (and could not reasonably determine for this truck)  that Patterson was not wearing his safety belt, and that the mine had, and enforced, a policy regarding the wearing of safety belts.   The Commission in Southeastern Illinois Coal subscribed to the principal that “if a failure to wear the protective clothing and equipment was ‘entirely the result of the employee's disobedience or negligence rather than a lack of requirement by the operator to wear them, then a violation has not occurred.’”[9] 9 FMSHRC at 1675, quoting North American. (emphasis in original).    

For the reasons stated above, the Court finds that the Secretary did not establish a violation of 30 CFR § 77.1710(i), and accordingly, Citation No. 8362516 is VACATED[10] and this matter is hereby DISMISSED.  

                                                                                               

                                                                                    /s/ William B. Moran  
                                                                                    William B. Moran
                                                                                    Administrative Law Judge  

 

 

Distribution:

 

Brian D. Mauk, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, Tennessee 37219-2456; mauk.brian@dol.gov

 

Thomas Hamilton, Esq., Saltsman & Willett, PSC, 212 East Stephen Foster Ave., Bardstown, Kentucky, 40004; thomashamiltonjr@gmail.com

 

Martin J. Cunningham, Esq., Bingham Greenebaum Doll, LLP, 300 West Vine St., Suite 1100, Lexington, Kentucky, 40507; mcunningham@bgdlegal.com