<DOC>
[DOCID: f:c94-181m.wais]

 
MOBERLY STONE COMPANY
June 6, 1995
CENT 94-181-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                             June 6, 1995
                            
SECRETARY OF LABOR,        :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH   :
  ADMINISTRATION (MSHA),   :   Docket No. CENT 94-181-M
          Petitioner       :   A. C. No. 23-01785-05528
     v.                    :
                           :   Moberly Stone Company
MOBERLY STONE COMPANY,     :
          Respondent       :
                           
                             DECISION

Appearances:  Margaret A. Miller, Esq., Office of the 
              Solicitor, U. S. Department of Labor, 
              Denver, Colorado, for the Secretary;
              No appearance for Respondent.

Before:  Judge Maurer

                      STATEMENT OF THE CASE

     This proceeding concerns a proposal for assessment
of civil penalty filed by the petitioner against the 
respondent pursuant to section 110(a) of the Federal 
Mine Safety and Health Act of 1977, 30 U.S.C. � 820(a), 
seeking a civil penalty assessment of $385 for five 
alleged violations of the mandatory safety standards 
found in 30 C.F.R. Part 56.

     The respondent contested the violations and requested 
a hearing.  Pursuant to notice, a hearing was convened in
Moberly, Missouri, on March 7, 1995, and while the 
petitioner appeared, the respondent did not.  In view of 
the respondent's failure to appear, the hearing proceeded 
without them.  For reasons discussed later in this 
decision, respondent is held to be in default, and is 
deemed to have waived its opportunity to be further heard
in this matter.

                                ISSUE

     The issue presented in this case is whether the 
petitioner has established the violations cited, and, if 
so, the appropriate civil penalty that should be assessed 
for the violations.

                  MSHA'S TESTIMONY AND EVIDENCE

     The following MSHA Exhibits were received in evidence
     in this proceeding:

     1.  A copy of the proposed assessment data sheet
     (Exhibit P-1).

     2.  A copy of section 104(a) Citation No. 4322264, 
     issued by Inspector LeRoy Parmalee on April 19, 1994
     (Exhibit P-2).

     3.  A copy of section 104(a) Citation No. 4322265, 
     issued by Inspector LeRoy Parmalee on April 19, 1994 
     (Exhibit P-3).

     4.  A copy of section 104(a) Citation No. 4322266, 
     issued by Inspector LeRoy Parmalee on April 19, 1994 
     (Exhibit P-4).

     5.  A copy of section 104(a) Citation No. 4322267, 
     issued by Inspector LeRoy Parmalee on April 19, 1994 
     (Exhibit P-5).

     6.  A copy of section 104(a) Citation No. 4322268, 
     issued by Inspector LeRoy Parmalee on April 20, 1994 
     (Exhibit P-6).

     The petitioner also presented oral testimony on the 
record at the hearing and based on all the evidence 
presented, I conclude and find that the violations have 
been established, and accordingly, the contested citations 
are affirmed as issued.

          RESPONDENT'S FAILURE TO APPEAR AT THE HEARING

     The record in this case indicates that after first 
giving the parties an opportunity to select their own 
trial date by Prehearing Order dated October 25, 1994, a 
Notice of Hearing dated January 12, 1995, setting this 
case down for hearing in Moberly, Missouri, on March 7, 
1995, was received by respondent on January 17, 1995.  
Respondent received the aforesaid Prehearing Order on 
October 27, 1994, but opted not to respond.

     Respondent was first heard from by fax on February 15,
1995, requesting that the hearing be moved to Burlington, 
Iowa, on either a Monday morning or a Friday afternoon.

     During a telephone conference between myself and the
parties, where the petitioner objected to moving the date 
or location of the trial, I denied the respondent's motion 
and informed them that the hearing would proceed as 
scheduled.

     On February 26, 1995, respondent faxed a request for
reconsideration of that denial of their motion for
continuance, wherein it is erroneously stated that:  
"[w]e were not given an opportunity to review our schedule 
before the date was selected by the Commission and MSHA."  
In point of fact, the trial date was selected entirely by 
the undersigned.

     One of the purposes of the prehearing order is for the
parties to mutually agree upon a trial date, and I will in
all likelihood, accede to their wishes.  However, if the
parties cannot or do not present me with a mutually
agreeable trial date, ultimately I must select one myself.
But for the respondent to state they had no opportunity 
to have an input into the selection of a trial date is 
patently false.  A prehearing order inviting their 
participation in selecting a trial date and by 
implication, a location, was received by them on
October 27, 1994, by certified mail. They simply neglected 
to respond to it in a timely fashion, or for that matter, 
at all.

     The respondent's prehearing motions to continue the 
hearing and change the venue of the hearing were both 
vigorously opposed by the Secretary on common sense 
grounds.  The Secretary objected to the change in venue 
because the mine is located at Moberly, Missouri, and the 
witnesses for the Secretary are also located in central 
Missouri, as are the respondent's witnesses, if it should
have chosen to present any testimony.  The only reason 
advanced for the requested change of location is that 
respondent's attorney, whoever that might be, lives in 
Iowa.  I note that there has been no entry of appearance 
in the record by any attorney, anywhere.  Be that as it 
may, in any event, it would have been more cost effective 
for all the parties[1] if respondent's attorney traveled 
to Moberly for the hearing, rather than all of the 
witnesses traveling to Iowa to accommodate him.  The 
Secretary also objected to changing the date of the 
hearing since all the arrangements for both lawyer and 
witnesses had already been made to travel to Moberly on 
March 7.  These objections were well-taken, and 
respondent's motions were denied.

     As previously stated above, the hearing proceeded in 
the respondent's absence.  The Secretary put in his case 
and then by counsel, moved that a default judgment be 
entered against the respondent pursuant to Commission Rule 
66(b), 29 C.F.R. � 2700.66(b),[2] and that the five 
citations at bar be affirmed and that the proposed civil 
penalty of $385 be assessed against the respondent.

     Under the circumstances in this record, I conclude 
and find that the respondent has waived its right to be 
heard further in this matter and that it is in default, 
and that the violations, as alleged, have been proven by 
a preponderance of the evidence, and that it is
appropriate to assess the respondent the proposed civil 
penalty of $385.


**FOOTNOTES**

     [1]: See generally, 29 C.F.R. � 2700.51, which 
instructs the presiding judge to consider the convenience 
of both parties and their witnesses in assigning a hearing 
site.

     [2]: 29 C.F.R. � 2700.66(b) provides as follows:
     Failure to attend hearing. If a party fails to attend
     a scheduled hearing, the judge, where appropriate, 
     may find the party in default or dismiss the
     proceeding without issuing an order to show cause.
           
                              ORDER

     Respondent is ORDERED TO PAY a civil penalty of $385 
to MSHA within 30 days of the date of this decision and
upon receipt of payment, this matter is DISMISSED.
                               

                                Roy J. Maurer
                                Administrative Law Judge


Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U. S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)

Mr. P. R. Orr, P. O. Box 582, Burlington, IA 52601 
(Certified Mail)

dcp


                               EXHIBITS

                      EXHIBITS TO CENT 94-181-M
                       (Moberly Stone Company)

                        Petitioner's Exhibits

     Exhibit P-1 - R34- Assessed Violation History Report

     Exhibit P-2 - Citation No. 4322264

     Exhibit P-3 - Citation No. 4322265

     Exhibit P-4 - Citation No. 4322266

     Exhibit P-5 - Citation No. 4322267

     Exhibit P-6 - Citation No. 4322268