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[DOCID: f:k95-467.wais]

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ROCKY'S TRUCKING
October 23, 1995
KENT 95-467


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           October 23, 1995

SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. KENT 95-467
                Petitioner    :  A.C. No. 15-16792-03502 HTW
                              :
          v.                  :  Mine: No. 4
                              :
ROCKY'S TRUCKING,             :
                Respondent    :

                               DECISION

Appearances:  Mary Sue Taylor, Esq., Office of the Solicitor,
              U.S. Department of Labor, Nashville, Tennessee,
              for Petitioner; James E. Peterson, Pro Se, for
              Respondent.

Before:  Judge Amchan

Issue Presented

     The issue in this case is the extent, if any, that Respondent
is to be held responsible for the conduct of its non-supervisory
miner/truck driver in assessing a civil penalty. The Secretary has
proposed a $3,000 penalty for this employee's continued operation
of his truck after the issuance of two section 104(b) failure to
abate/withdrawal orders[1].

Findings of Fact

     The facts in this case are established by the uncontroverted
testimony of MSHA Inspector Robert Clay. On February 28, 1994,
Mr. Clay conducted an inspection of the Black Thunder Limited
No. 1 mine in Evarts, Kentucky (Tr. 13-14). Coal is brought from
this underground mine by a conveyor and is dumped into a pit. At
the pit coal trucks are filled with a front-end loader. The trucks
then take the coal away from the mine to a preparation plant
(Tr. 14-15).

     At the pit, Inspector Clay saw four coal trucks belonging to
independent contractors. One of them was owned by Respondent and
was driven by miner Bill Martin.  Clay inspected all four trucks
and issued citations to Mr. Martin and to at least one other
contractor (Tr. 15-17, 25-26).

     Citation No. 4242348 was issued to Mr. Martin because his
truck's reverse signal alarm was inoperable. The driver's view to
the rear was limited and miners in the pit were exposed to the
hazard of having the truck back into or over them. Inspector Clay
required abatement of the violation by 8:00 a.m. the next morning,
March 1, 1994 (Tr. 16-17, 21-23).

     Mr. Martin gave no indication that he could not fix the alarm
within this time period. Indeed, abatement could possibly have been
achieved simply by taking the truck to a car wash and having it
cleaned.  If not, the alarm could have replaced in a few hours at a
cost of about $50 (Tr. 18-20).

     Citation No. 4242349 was issued because the tag on the fire
extinguisher in Martin's truck did not indicate that it had been
inspected within the last six months as required by 30 C.F.R.
� 77.1110. As was the case with the reverse signal alarm, Inspector
Clay required correction of this violation by 8:00 a.m. the next
morning.  To abate, Respondent had only to make a visual inspection
of the extinguisher to determine that it was properly charged and
then record the date of the inspection on the tag (Tr. 16-17, 26-28).

     On March 1, 1994, Clay returned to the Black Thunder mine. He
first discussed abatement of violations with the superintendent of
the mine and then turned his attention to the contractors. The
inspector looked at the truck of contractor Gilles Greer and
determined that Greer had abated citations issued the day before
regarding a broken windshield and fire extinguisher inspection
(Tr. 24-26, 28-29).

     Clay then saw Martin driving his truck, loaded with coal. He
asked Martin to pull over so that he could determine whether the
previous day's citations had been abated. Martin refused, became
verbally abusive, and stated that he did not have time "to fool
with" Clay that day (Tr. 30).

     At 1:45 in the afternoon Clay informed Martin that he was
issuing two section 104(b) withdrawal orders. These were later
reduced to writing as Order Nos. 4242361 and 4242363. Martin was
again verbally abusive and drove off. Fifteen minutes later Clay
issued Citation No. 4242362 charging Respondent with a section
104(a) violation for failing to take its truck out of service
after the issuance of the withdrawal order (Tr. 30-35). Within a
few days of these incidents, Respondent sold the truck in
question and at about the same time went out of business (Tr.
35-36, 52).

     Is Mr. Martin's conduct imputable to Respondent?

     There is no indication that Respondent's owner, James Peterson,
knew of Mr. Martin's conduct or that it was consistent with any
instructions given by Mr. Peterson. Nevertheless, Respondent was
properly cited because the Federal Mine Safety and Health Act is a
strict liability statute and the conduct of a non-supervisory
employee is imputed to his employer for purposes of determining
whether a citation is valid, A.H. Smith Stone Co., 5 FMSHRC 13, 15
(January 1983).

     On the other hand, the conduct and knowledge of a rank-and-
file miner generally cannot be imputed to an operator for penalty
purposes.  However, 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
miner's violative conduct, Southern Ohio Coal Co,, 4 FMSHRC 1459,
1464-5 (August 1982).

     In the instant case there is no evidence concerning the
training, supervision and disciplining of Mr. Martin. Thus, there
is no evidence regarding Respondent's negligence, apart from that
which the Secretary argues must be imputed to it from Martin's
behavior.  The Secretary contends that Mr. Martin should be considered
the agent of Respondent for penalty purposes, citing the Commission's
decisions in Rochester &


**FOOTNOTES**

     [1]:The case also involves a $117 proposed penalty for
Respondent's failure to abate a citation regarding an inspection
tag on the truck's fire extinguisher.  Pittsburgh Coal Company,
13 FMSHRC 189 (February 1991) and S&H Mining, Inc., 15 FMSHRC 956
(June 1993)[2].

     In the lead case, Rochester & Pittsburgh Coal, the Commission
reversed the decision of the judge, who, relying on the Southern
Ohio Coal decision, found the intentional misconduct of a rank-and-
file employee not imputable to the operator.  The employee in question
failed to carry out preshift examinations required by the Act. Thus,
the Commission concluded that he was "charged with responsibility
for the operation of ... part of a mine" and therefore was the "agent"
of the operator within the meaning of section 3(e) of the Act.

     Additionally, in concluding that the rank-and-file employee
was Rochester & Pittsburgh's agent, the Commission relied on the
(Second) Restatement of Agency (1958).  It stated that "the essential
feature of the principal-agent relationship is that the agent has
authority to represent his principal with third parties in dealings
that affect the principal's legal rights and obli-gations."

     Applying this rule to the instant case, a rank-and-file miner
working alone on a mine site must be deemed to have either actual or
"constructive" authority to abate violations in a timely fashion and
to respond to withdrawal orders.  I would thus conclude that Mr.
Martin was Respondent's agent in his dealings with Inspector Clay and
with regard to his response to the citations and orders issued to
Respondent[3].  I therefore impute his conduct to Respondent for
purposes of determining its negligence and an appropriate civil penalty.

The Civil Penalty Assessment

     After considering the six penalty criteria in section 110(i)
of the Act, I assess a civil penalty of $720 for the operation
of the truck in defiance of the withdrawals orders (Citation
No. 4242362) and the failure to abate the fire extinguisher
violation (Order No. 4242363).  The penalty shall be paid in
twelve monthly installments of $60. The first payment is due
30 days after the date of this decision.

     My consideration of the penalty factors is as follows:

     The demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of
the violations. This factor, by itself, would lead me to
assess a much higher penalty than $720. Intentional disregard of a
withdrawal order is a very rare occurrence (See Tr. 41). It must be
penalized severely not only because it endangers the health and
safety of miners but also because a significant penalty is likely
to deter others from similar conduct.

     The gravity of the violation. The continued operation of the
truck without a reverse signal alarm was reasonably likely to
result in serious injury. Mr. Martin indicated to Inspector Clay
that the alarm had not been repaired (Tr. 38).

    The negligence of the operator. I have found that Mr. Martin was
the agent of Rocky's Trucking.  On the other hand, I have considered
that Mr. Peterson, the owner of Rocky's Trucking, knew nothing of this
incident and, so far as the record indicates, did nothing to encourage
it.  However, it must also be noted that Mr. Martin's behavior may have
inured to the short-run benefit of Respondent. Martin may have been able
to haul more coal by virtue of not taking his truck out of service for
repairs and not allowing Mr. Clay to inspect it (Tr. 41, 54-55).

     The size of the operator. Respondent was a very small operator and
owned only two trucks. Due to this fact, I have assessed a lower
penalty than I would have for a larger concern.

     Respondent's history of previous violations. There is no evidence
in the record regarding violations prior to February 28, 1994.  Therefore,
Respondent's history has not been a factor in assessing a penalty, except
for the fact that a higher penalty would have been assessed if it had
been shown to have a record of recurring similar violations.

     The effect of the penalty on the operator's ability to stay in
business.  This factor cannot be applied to this case since Respondent
has ceased operation.  I have given consideration, however, to Mr.
Peterson's representations regarding his finan-cial condition. He
receives approximately $2,000 per month in Social Security and
Workers Compensation benefits (Tr. 52-54).

     I conclude he can afford to pay the assessed penalty in the
installments which I have ordered.

                                ORDER

     Citation No. 4242362 and Order No. 4242363 are affirmed and a
$720 civil penalty is assessed for the two combined. This shall be
paid in twelve monthly installments of $60 commencing within 30 days
of this decision.


                                 Arthur J. Amchan
                                 Administrative Law Judge


**FOOTNOTES**

     [2]:  Also see, Mettiki Coal Corp., 13 FMSHRC 769, 772
(May 1991).

     [3]:  In Whayne Supply Company, Docket Nos. KENT 94-518-R,
KENT 94-519-R and KENT 95-556, Slip op. p. 6, n. 5 (September 7,
1995), I declined to conclude that a rank-and-file employee is
the agent of a contractor simply because he was working without
supervision at a mine site. Judge Fauver in U.S. Coal, Inc.,
16 FMSHRC 649, 652 (March 1994-review pending), concluded that
when a rank-and-file employee's misconduct threatens the health
or safety of others, his negligence is imputable to his employer
for penalty purposes. Although Judge Fauver's decision is not
expressed in terms of "agency," I would interpret his decision as
finding that the rank-and-file employee in that case was the
agent of the operator. While there is no need for me to express
agreement or disagreement with the U.S. Coal decision, I would
note that Mr. Martin's insistence of operating his vehicle
without fixing the back-up alarm certainly endangered the health
and safety of others.


Distribution:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215-
2862 (Certified Mail)

James E. Peterson, Rocky's Trucking, Route 1, Box 239, Evarts, KY
40828 (Certified Mail)

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