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[DOCID: f:k94-519r.wais]
WHAYNE SUPPLY COMPANY
May 30, 1997
KENT 94-519-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 30, 1997
WHAYNE SUPPLY COMPANY, : CONTEST PROCEEDING
Contestant :
v. : Docket No. KENT 94-519-R
: Citation No. 4011760; 1/25/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Job No. 17A
ADMINISTRATION (MSHA), :
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-556
Petitioner : A.C. No. 15-17434-03501
A25
v. :
: Job No. 17A
WHAYNE SUPPLY COMPANY, :
Respondent :
DECISION
Appearances: Brian W. Dougherty, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Nashville, Tennessee, on
behalf of the Secretary of Labor;
Andrew J. Russell, Esq., Smith & Smith, Louisville,
Kentucky, on behalf of Whayne Supply Company.
Before: Judge Melick
These consolidated Contest and Civil Penalty proceedings
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
� 801 et seq., the "Act," are before me upon remand by the
Commission on March 7, 1997, to evaluate the issues of
"unwarrantable failure", negligence and a civil penalty based on
the present record and within the specified guidelines.
The relevant factual and procedural background is set forth
by the Commission as follows:
Whayne [Whayne Supply Company] is a contractor that
sells and services Caterpillar machinery and equipment in
Kentucky and Indiana. 17 FMSHRC at 1575. On January 19,
1994, Whayne dispatched James Paul Blanton, an experienced
field service technician with 16 years of service with
Whayne, to Addington Mining Inc.'s Job #17A, a surface coal
mine in Pike County, Kentucky. Id. at 1574-75; Tr. 244. On
January 20, Blanton drove his Whayne truck to Job #17A. 17
FMSHRC at 1575. The truck was equipped with a crane (or
"boom"), chain and cable "come-along" for securing raised
loads. Id. at 1575, 1577. Addington personnel directed
Blanton to repair a disabled Caterpillar D1ON bulldozer.
Id. at 1575. Blanton examined the D1ON dozer and concluded
that the torque converter was defective and needed to be
removed. 17 FMSHRC at 1575; Tr. 155-56.
In order to gain access to the torque converter on the
D1ON bulldozer, one of three belly pans on the underside of
the dozer had to be lowered. 17 FMSHRC at 1575n.2. The
belly pan is hinged on one side and secured to the bulldozer
by three bolts each on two other sides. Id; Tr. 51. When
the belly pan is freed from the bolts, it swings down on its
hinge. Id. The belly pan weighs about 500 lbs. 17 FMSHRC
at 1576.
The normal practice for removing the belly pan in the
field is to first dig a trench and place the vehicle over
it. Tr. 61-62. Then a chain is run from the crane on the
truck, passed under the belly pan and attached to the
opposite bulldozer track to prevent the pan from falling
abruptly when the bolts are loosened. 17 FMSHRC at 1575.
An alternate method involves use of the come-along to secure
a cable beneath the pan. Id. at 1577. After the pan is
loosened from the bolts, the crane or come-along is used to
slacken the restraint and allow the belly pan to safely
swing open. Id. at 1575; Tr. 79-80, 160.
Consistent with this procedure, Addington employees dug
a trench and then pushed the bulldozer over it so Blanton
could begin removing the torque converter. 17 FMSHRC at
1575; Tr. 62-66. Blanton moved his truck so that the right
rear portion, where the crane was located, was next to the
bulldozer. 17 FMSHRC at 1575. The Addington employees left
Blanton alone to repair the bulldozer. Id. at 1575-76.
Shortly before noon, Blanton was discovered pinned under the
belly pan, which had swung down on its hinges. Id. at 1576.
Blanton was pulled from underneath the bulldozer but could
not be revived, and probably died at the scene. Id.; Tr.
71-73, 138-39. Before the pan fell, Blanton had removed the
nuts securing the pan to the bolts. Tr. 73-74; Gov't Ex. 6,
p.4. In addition to the nuts, an air hose, air gun or air
wrench, power drill, socket and screwdriver were discovered
under the dozer at the time of the accident. Tr. 27-28, 73-
74, 139-40, 158. There was no evidence that Blanton had
attempted to secure the belly pan with the crane and chain,
cable come-along, or any other device. 17 FMSHRC at 1576.
The crane was not "on," and was not extended, but instead
was in the "down" position. Tr. 227-28.
Whayne gives its field machanics general verbal
instructions to minimize the time spent under raised
equipment; however, its employees receive no formal training
regarding the proper procedures for lowering belly pans in
the field, nor does Whayne maintain a written policy on this
subject. 17 FMSHRC at 1579; Tr. 216, 218, 349. Whayne did
supply formal training on removing belly pans when the
vehicle is in the shop; however, the procedure for removing
belly pans in the shop differs from that used in the field.
Tr. 216-17, 344-45, 383-85.
Whayne hires experienced mechanics for its field
service positions, and relies heavily on on-the-job training
for these employees. 17 FMSHRC at 1579. New field
mechanics begin as "helpers" and are assigned to jobs with
more experienced field technicians. Tr. 208-09, 372. After
gaining experience in the field, field mechanics may be
assigned to jobs alone, or with less experienced helpers.
Id. The field mechanic tells the helper what to do when
they get to the job. Tr. 245. Whayne field mechanics are
dispatched by and receive performance evaluations from the
field service foreman, a supervisor. Tr. 242-45, 254.
Field mechanics are dispatched to a customer's premises, and
assigned by the customer to work on a particular piece of
equipment. Tr. 212-13. Whayne field mechanics are not
supervised by mining company employees while on mine
property. Id. The field mechanic evaluates the problem and
corrects it, without direct supervision from the field
service foreman. Tr. 209, 254.
MSHA inspector Buster Stewart issued several citations
and orders to Addington and Whayne on January 25, including
Citation No. 4011760 to Whayne under section 104(d)(1) of
the Act, 30 U.S.C. � 814(d)(1), for violating section
77.405(b). Gov't Ex. 6, p.5. The citation alleged that
blocking was not provided by Whayne to secure the belly pan.
Gov't Ex. 3. Stewart also drafted an Accident Investigation
Report, which stated, inter alia: "The cause of the accident
was the failure to use blocking material to prevent movement
of the belly pan while work was in progress." Gov't Ex. 6,
p.3.
Following an evidentiary hearing, the judge concluded
that Whayne violated section 77.405(b). [footnote omitted]
He ruled that any negligence on Blanton's part could be
"imputed" to the operator if the operator has not "taken
reasonable steps to prevent the rank-and-file miner's
violative conduct." Id. at 1578. The judge found that,
although Blanton was not a "supervisory employee, " his
negligence could be imputed to Whayne because the operator
did not take "such reasonable stpes in training and
supervising Blanton[] that it should be completely absolved
of responsibility for his violative conduct. . . ." Id. at
1578-79. Examining Blanton's conduct in light of his
finding that "Blanton's actions did not compromise the
safety of others," the judge found that Blanton's conduct
"defie[d] explanation: and characterized it as
"`thoughtless,' rather than `inexcusable or aggravated.'".
Id. at 1580 & n.6. He concluded that Blanton's negligence
did not rise to the level of unwarrantable failure. Id.
[footnote omitted] The judge rejected the Secretary's
proposed $50,000 penalty. Id. at 1582. Characterizing
Whayne's negligence as "moderate," considering "both the
`thoughtlessness' of Mr. Blanton and the lack of formal
training provided by Whayne Supply regarding belly pan
removal[,]" the judge assessed a civil penalty of $1500.
Id.
The Commission thereafter remanded for a new analysis,
considering that since Blanton was a rank-and-file miner and not
an agent of Whayne, Whayne could not be held liable for
negligence or aggravated conduct based on the actions of Blanton
but that Whayne could nevertheless be held responsible for
unwarrantable failure and negligence based upon its own conduct
under Southern Ohio Coal Company, 4 FMSHRC 1459(August 1982). In
Southern Ohio Coal Company the Commission stated that in the
context of evaluating operator conduct for purposes of penalty
assessment "where a rank-and-file employee has violated the Act,
the operator's supervision, training and disciplining of its
employees must be examined to determine if the operator has taken
reasonable steps to prevent the rank-and-file miners' violative
conduct".[1] In accordance with the remand order, "unwarrantable
failure", negligence and the assessment of an appropriate civil
penalty are here evaluated in light of Whayne's "training and
supervision of Blanton".
It is noted preliminarily that, as the moving party, the
Secretary has the burden of proof to establish all elements on
the issues of unwarrantability and negligence and therefore also
has the burden as to the limited issues now on review i.e., on
the alleged inadequacy of Whayne's supervision and/or training of
Blanton. 5 U.S.C., � 556(d). The Secretary acknowledges that he
has the burden of proof on these issues (Oral Argument Tr. 36-
37). I should also note that the parties indicated at oral
argument that additional evidence existed beyond the present
record on these issues. However the Commission has specifically
limited the analysis on this remand to the present record.
Unwarrantable failure is defined as aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp.,
9 FMSHRC 1997 (December 1987). Unwarrantable failure is
characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference" or a "lack of reasonable
care." Id. at 2003-04; Rochester and Pittsburgh Coal Company, 13
FMSHRC 189, 193-194 (February 1991). Relevant issues therefore
include such factors as whether an operator has been placed on
notice that greater efforts are necessary for compliance,
Mullins and Sons Coal Company, 16 FMSHRC 192, 195 (February
1994). On the present record in this case I find that not only
has the Secretary failed to have met her burden of proving
aggravated or inexcusable conduct by Whayne in relation to its
supervision and training of Mr. Blanton but she has also failed
to sustain her burden of proving that there was anything more
than moderate negligence in this regard.
As the Commission itself observed, Blanton was "a highly
experienced repair person who needed little supervison". The
Secretary also agrees that, as a field technician, she would not
have expected constant supervision over Blanton. However the
Secretary nevertheless maintains that Blanton's supervisor could
have conducted "spot" inspections of Blanton's work (Oral
Argument Tr. 32, 50, 52, 64, 76) Whayne notes that the Secretary
has never required such spot inspections. It is noted moreover
that the Secretary did not, as a condition of abatement require
any change in the supervisory practices of the operator, that
there is no specific regulatory requirement for spot supervision,
and that Whayne was apparently following industry practices in
its minimal supervision of an experienced field technician.
With respect to Blanton's training the Commission observed
as follows:
"The Secretary's assertions that Blanton was not
trained by Whayne, and did not receive performance
appraisals, are inaccurate. In addition to the on-the-job
training Blanton would have received on removing belly pans
in the field, the record shows that Whayne field technicians
received formal training on repair in the shop and from
Caterpillar itself."
The Secretary nevertheless maintains that the lack of
classroom training for Blanton regarding the removal of belly
pans in the field by the boom and chain method is evidence of a
deficient training program. Aside from the obvious difficulty,
if not impossibility, of reconstructing field conditions such as
Blanton encountered in this case in a classroom setting, I cannot
agree with the Secretary that the lack of classroom training on
belly pan removal using the boom and chain method is, in itself,
evidence of a deficient training program. The record shows that
newly hired field technicians work with experienced mechanics and
receive on-the-job training and instructions on these procedures.
Indeed the deceased himself was an experienced technician who had
been observed using the boom and chain method of belly pan
removal in the field and who himself had trained other employees.
In addition, it is noted that the Secretary, as a condition of
abatement, did not require Whayne to make any change in its
training of field technicians. Moreover there is no regulatory
requirement that training in such procedures be provided in a
classroom setting. Finally, the record shows that the deceased
had in fact successfully completed his required annual refresher
training, including hazard recognition and accident prevention
(Exhibit C-1).
On the other hand, the fact remains that Whayne did not have
any written policy or rules governing belly pan removal in the
field. This may be considered one aspect of training. Whayne
was therefore not without negligence in this regard, and, under
the circumstances, I find that a civil penalty of $750 is
appropriate. I note that when the presiding judge found a civil
penalty of $1,500 to be appropriate he also considered the
moderate negligence of the deceased, Mr. Blanton, and imputed
that negligence to Whayne. Eliminating Blanton's negligence from
consideration of a civil penalty for Whayne warrants an
appropriate reduction in penalty amount.
ORDER
"Section 104(d)(1)" Citation No. 4011760 is hereby modified
to a "Section 104(a)" Citation and Whayne Supply Company is
hereby directed to pay a civil penalty of $750 within 30 days of
the date of this decision.
Gary Melick
Administrative Law Judge
Distribution:
Yoora Kim, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
Brian W. Dougherty, Esq., Office of the Solicitor, U.S.
Dept. of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215
Andrew J. Russell, Esq., Smith & Smith, 400 North, First
Trust Centre, 200 South Fifth Street, Louisville, KY 40202
/jf
**FOOTNOTES**
[1]: The Commission in this case remanded only for
consideration of the operator's supervision and training of
Blanton. Accordingly, the operator's discipline of its employees
is not here considered. In any event the Secretary has not
sustained her burden of proving that Whayne's progressive
disciplinary procedures were inadequate.