.
BRIDGER COAL COMPANY
August 29, 2001
WEST 2001-334-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 29, 2001
BRIDGER COAL COMPANY, : CONTEST PROCEEDING
Contestant :
: Docket No. WEST 2001-334-R
v. : Order No. 7636506
:
SECRETARY OF LABOR, MINE :
SAFETY AND HEALTH, MSHA :
Respondent : Jim Bridger Mine
DECISION GRANTING CONTESTANT'S MOTION FOR SUMMARY DECISION
Before: Judge Weisberger
At issue before me, in this contest proceeding, is a
motion to dismiss filed by the Contestant, Bridger Coal
Company, ("Bridger").
Summary of the Facts[1]
Howard McCoy, Jr. has been employed by Bridger at its
Jim Bridger Mine ("the Mine") continuously since January 1981.
When hired, McCoy was already an experienced miner and was
given "Newly Employed Experienced Miner" training pursuant to
30 C.F.R. Section 48.26. McCoy is currently classified as a
Mine Service Operator and has been so continuously since
November 1999. As a Mine Service Operator, McCoy's duties
primarily have involved moving equipment around the Mine
property. McCoy also helps out on occasion in the performance
of additional jobs, as needed and as directed.
From time to time McCoy has assisted, as directed and
under immediate supervision, in the operation of bridge cranes,
such as the overhead shop crane and those in the draglines, by
pressing the "up" or "down" button.
A bridge crane is a motorized indoor unit that runs on
rails mounted near the ceiling and/or walls as the bridge crane
operator positions it ("east" or "west" and "north" or "south")
to lift loads too heavy to be safely lifted manually, by means
of a hook that is raised or lowered from above with the push
of a button ("up" or "down") on the control device (either a
remote control or a control that hangs from the crane by a
cable).
A task training program in bridge crane operation involves
all aspects of using the bridge crane, including when and how
to use the bridge crane, proper rigging of loads, planning the
lift, operating the controls for directional positioning (north,
south, east and west), load limitations, use of connecting
devices, and lifting slings or chains. Pursuant to Bridger's
MSHA-approved Part 48 Training Program, bridge crane task
training is normally provided only to miners whose duties
require use of the bridge crane, including all Heavy Equipment
Mechanics, Welders, Electricians, Machinists, and HVAC Mechanics
(there is no position of "bridge crane operator").
Other employees, whose duties may take them into one of
the shops or the draglines on occasion, regardless of their
classification or training, are called upon, from time to
time, to press the button which raises or lowers the bridge
crane (a practice known as "bumping"), under the direction and
immediate supervision of a task-trained, experienced mechanic
or other person experienced in bridge crane operation. Bridger
has never considered it necessary to give task training to
miners in bridge crane operation if they were only going to be
bumping the crane.
On September 19, 2000, two of Bridger's experienced heavy
equipment mechanics, Kevin Fletcher and Don Bakula, were
assigned the job of changing the tracks on a bulldozer in the
shop, removing the old track and installing a new one. To
assist them, the mechanics asked McCoy to run the dozer, as
part of the track changing process that Fletcher, Bakula, and
McCoy had done together on previous occasions. Fletcher and
Bakula asked McCoy, who was running the dozer, to raise it off
the ground by using its blade and ripper (by lowering them
against the floor, the body of the dozer was elevated). During
the track-changing process on September 19, a chain linking
the old and new tracks broke. In order to replace the broken
chain, Fletcher used the overhead crane. Fletcher moved the
overhead 15 ton crane into position at the right side of the
bulldozer to lift the bogies off the track. He attached a
chain sling and hook arrangement to two center bogies and
hooked it to the overhead crane. The sling arrangement
consisted of four chains and four hooks, and when used
together, was rated at a 33,800 pound capacity. Fletcher
instructed McCoy to raise the bogies to a near-horizontal
position with the overhead crane.
In order the raise the bogies to this position, McCoy (who
had left the dozer and was standing on the shop floor nearby)
pressed the crane's control button momentarily (just as he had
done on prior occasions), then stopped. McCoy then climbed back
aboard the dozer to continue running it as needed by Fletcher
and Bakula. Subsequently, one of the chains hooked to the
bogie slipped off, fatally injuring Fletcher, and resulting in
a pinched arm injury to Bakula.
On March 19, 2001, MSHA issued a 104(g)(1) Order alleging
a violation of 30 C.F.R. Section 48.27(a). On April 23, 2001,
MSHA modified the Order to instead allege a violation of
Section 48.27(c), and to change it to non-S&S. The modification
also states that "Mr. McCoy's operation of the crane was
limited to `bumping' to remove the slack in the rigging cables.
The task took less than one minute and upon completion, he
returned to his position on the dozer. There was no unsafe
operations or acts committed by McCoy during his operation of
the crane."
On June 25, 2001, Contestant Bridger filed a motion for
summary decision, and the Secretary's response in opposition
to this motion was filed on July 10, 2001. On July 19, 2001,
Contestant filed a reply.
Discussion
At issue in this contest proceeding is the validity of
Order No. 7636506 alleging, as modified, a violation of 30
C.F.R. Section 48.27(c) which provides that "[m]iners assigned
a new task not covered in paragraph (a), [2] of this section
shall be instructed in the safety and health aspects and safe
work procedures of the task, prior to performing such tasks."
In its motion, Bridger sets forth three independent
grounds for its motion as follows: (1) that bumping is not a
separate task for which training is required; (2) that a miner
does not have to be task trained before performing a task under
the direct direction and supervision of an experienced person;
and (3) that McCoy was not required to have task training as he
had performed this task within the preceding twelve months.
In order for Bridger to prevail under 29 C.F.R. Section
2700.67(b) it must establish (1) that there is no genuine issue
as to any material fact; and (2) that it is entitled to summary
decision as a matter of law. Based on a review of the entire
record in this proceeding, I find that Bridger has met this
burden for the reasons that follow.
The record establishes that McCoy had not received any
training in the safe work procedures of bumping prior to
his having operated the overhead crane's control button on
September 19. However, in order to prevail in establishing a
violation
under Section 48.27(c) supra, the Secretary must establish that
McCoy was "assigned a new task". Neither counsel has cited any
controlling case law on the issue of whether bumping constitutes
a task. In resolving this issue, reference is made to 30 C.F.R.
Section 48.22 which sets forth the definitions of various terms
used in subpart B, which includes Section 48.27(c) supra, and
which relate to the training of miners. In this connection,
Section 48.22(f) supra, provides that the term task "means a
work assignment that includes duties of the job that occur on
a regular basis and which requires physical abilities and job
knowledge." In essence, Bridger argues that the activity
performed by McCoy, on September 19, did not constitute a new
task. Bridger alleges that (1) McCoy was a mine service
operator before he engaged in that activity and he remained a
mine service operator after that without any reassignment to
new tasks, and (2) that he occasionally bumped the bridge
crane when requested to do so. The Secretary, in her
opposition, does not raise any factual issue with regard to
these facts asserted by Bridger. The Secretary's opposition
is based solely upon assertions characterizing the nature of
bumping as having significant safety implications, and that
it is a "task" as it requires physical abilities and job
knowledge.
In order to prevail the Secretary must establish that
McCoy, in bumping, was "assigned a new task", (Section 48.27(c),
supra). According to the clear unequivocal language of Section
48.22(f) a work assignment is considered a task only if the
assignment to perform that task includes duties that not only
require physical abilities and job knowledge and that "occur on
a regular basis" (Emphasis added). Bridger asserts, in essence,
that there is a lack of evidence for the Secretary regarding
the existence of this material fact, which is necessary for the
Secretary to establish in order to prevail herein. It is
Bridger's specific factual assertion that the assignment to
bump by pressing a button was assigned to McCoy "occasionally",
and thus not on a "regular basis". The Secretary has not
asserted either in its brief or in affidavits filed along with
its brief, that McCoy performed bumping on "a regular basis".
I find, based on the record before me, that there is no
issue as to a material fact, i.e., that McCoy's [3] assignment
to bump did not occur on a regular basis. Hence, based on the
clear language of Section 48.22(f), I find that the assignment
of McCoy to bump on September 19 did not constitute a task.
Accordingly, since Bridger's training obligation under Section
48.27(c) is required only when miners are assigned a new task,
and McCoy's assignment did not fall within this category as it
did not meet the definition in Section 48.22(f) supra, Bridger
was not required to provide him with training under Section
48.27(c). Thus, considering the record before me, Bridger is
entitled to a decision finding that it did not violate Section
48.27(c) supra. Accordingly Bridger's motion to dismiss is
granted.[4]
ORDER
It is Ordered that Bridger's motion to dismiss is granted,
and it is further Ordered that Order No. 7636506 be vacated,
and this case be dismissed.
Avram Weisberger
Administrative Law Judge
**FOOTNOTES**
[1]: The facts that follow are adopted from Contestant's
motion, as these specific facts have not been contested by the
Secretary.
[2]: The tasks covered in paragraph (a) of Section 48.27
refer to mobile equipment operators, drilling machine
operators, haulage and conveyor systems operators, and ground
control machine operators.
[3]: The Secretary does not assert that other miners
were assigned this task on a "regular basis".
[4]: In light of this decision, which disposes
of Bridger's motion, it is not necessary to discuss the
alternate grounds raised by Bridger.
Distribution: (Certified Mail)
Lydia Tzagoloff, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, P.O. Box 46550, Denver, CO
80201-6550
Timothy M. Biddle, Thomas C. Means, Crowell & Moring LLP, 1001
Pennsylvania Avenue, N.W., Washington, D.C. 20004-2595
/sct