<DOC>
[DOCID: f:buck1.wais]
BUCK CREEK COAL COMPANY, INC.
January 20, 1995
LAKE 93-241
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
January 20, 1995
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
v. : Docket No. LAKE 93-241
:
BUCK CREEK COAL COMPANY, INC. :
BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners
DECISION
BY: Jordan, Chairman; Doyle and Holen, Commissioners
This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1988)
("Mine Act" or "Act"). The Department of Labor's Mine Safety and
Health Administration ("MSHA") cited Buck Creek Coal Company,
Inc. ("Buck Creek") for an alleged violation of 30 C.F.R.
� 75.360(a) (1992).[1] Administrative Law Judge T. Todd Hodgdon
concluded that Buck Creek violated section 75.360(a) by permitting
three miners to enter its mine before the preshift examination had
been completed and recorded at the surface. 16 FMSHRC 133, 137
(January 1994) (ALJ). The judge also determined that the violation
was not significant and substantial ("S&S"), but resulted from
Buck Creek's unwarrantable failure to comply with the standard.
Id. at 137-40.
Both parties timely filed petitions for discretionary review.
The Secretary sought review of the judge's conclusion that the
violation was not S&S. Buck Creek sought review of the judge's
determination that the Secretary had established a violation of the
standard and that Buck Creek's conduct resulted from unwarrantable
failure. Buck Creek also alleged that the judge had deprived it
of due process. The Commission granted the petitions.
For the reasons that follow, the Commission affirms the
judge's conclusions that Buck Creek violated section 75.360(a) and
that the violation resulted from Buck Creek's unwarrantable failure;
we reverse the judge's determination that the violation was not
S&S. We conclude that Buck Creek was not deprived of due process.
I. Factual and Procedural Background
Buck Creek operates an underground coal mine in Sullivan,
Indiana. The mine, developed in two sections referred to as
"north" and "south," extends about three miles from one end to
the other. Entry is gained through the bathhouse portal, which
is situated near the middle of the mine.
The mine was idle from 3:30 p.m. on Saturday, April 24, 1993,
until Monday morning, April 26. Buck Creek postponed the start of
the first shift on April 26 from 7:00 a.m. to 9:00 a.m. 16 FMSHRC
at 134; Tr. 19, 111, 167. Charles Austin, mine foreman, and
Charles Chin, section foreman, conducted the preshift examination;
each examined one side of the mine. According to the preshift books,
the examination of the north side began at 6:22 a.m. and concluded
at 7:22 a.m.; the examination of the south side began at 7:00 a.m.
and was completed at 7:30 a.m. 16 FMSHRC at 134.
In addition to the preshift examiners, three miners, Carlos
Maggard, Dave Sales and Terry O'Bannon, were in the mine at 6:45
a.m., when MSHA Inspectors John Stritzel and Mike Bird arrived to
conduct a ventilation inspection. Maggard and Sales were certified
examiners. The three had descended prior to the completion of the
preshift examination in order to repair a mantrip used to transport
miners to the face. 16 FMSHRC 133-34, 137, 139; Tr. 163. When they
reached the bottom of the slope, where the mantrip was situated,
that area had been examined by a preshift examiner. 16 FMSHRC at
134-35, 139.
Mine foreman Austin called the results of his preshift
examination to the surface at 7:35 a.m. At that time, Inspector
Stritzel told Austin to withdraw all miners from the mine and
issued Order No. 4055142 pursuant to section 104(d)(2) of the Act,
30 U.S.C. � 814(d)(2), which alleged that Buck Creek violated 30
C.F.R. � 75.360(a) and that the violation was S&S and a result of
the operator's unwarrantable failure.[2] The order was terminated
after the miners were withdrawn and instructed by Buck Creek's
Safety Director not to reenter the mine until the preshift
examination was completed and the results recorded. 16 FMSHRC
at 134-35; Joint Ex. 1. Maggard, Sales and O'Bannon were assigned
other work following their return to the surface. See Tr. 214.
Normally, employees performing maintenance work join the oncoming
production shift. Id.
Following an evidentiary hearing, the judge concluded that,
by permitting miners to enter the mine before completion of the
preshift examination, Buck Creek violated section 75.360(a).
16 FMSHRC at 135-37. The judge also concluded that the violation
was not S&S, finding that the Secretary had failed to establish
that the violation would result in a reasonable likelihood of
injury. Id. at 137-39. He further concluded that the violation
was due to Buck Creek's unwar-rantable failure. Id. at 139-40.
The judge assessed a penalty of $3,000. Id. at 141.
II.Disposition
A. Violation
Section 75.360 essentially restates the requirements of section
303(d)(1) of the Mine Act, 30 U.S.C. � 863(d)(1). Under section
75.360(a), a certified examiner must conduct a preshift examination
within three hours before "the beginning of any shift and before anyone
on the oncoming shift . . . enters any underground area of the mine
. . . ." Subsections (b) through (g) of section 75.360 set forth the
required elements of the examination. Under section 75.360(g), the
results of the preshift examination must be recorded in a book at the
surface before miners are permitted underground.
The judge found that the foot of the slope, where the miners were
repairing the mantrip, was an underground area of the mine. 16 FMSHRC
at 136. Relying on the fact that Maggard, Sales and O'Bannon worked
during the morning shift and that repair of the mantrip was necessary
to enable other miners to travel to the face, the judge found that
the miners were part of the oncoming shift. Id. at 136-37. He concluded
that, because the three miners arrived at the foot of the slope before
the preshift examination had been recorded, Buck Creek violated section
75.360(a). Id.
Buck Creek concedes that the plain language of section 75.360(a)
requires a preshift examination before any shift of workers enters the
mine to perform production or non-production work. B.C. Br. at 3. It
asserts, however, that substantial evidence does not support the judge's
conclusion that Maggard, Sales, and O'Bannon were part of the oncoming
shift and, thus, subject to section 75.360(a). Id. at 4-7. It also
contends that the mine was idle when the three miners entered and that,
pursuant to 30 C.F.R. � 75.361, only a limited examination of the slope
area was required before miners could enter. Id. at 6-7. Buck Creek
contends further that, because the area where the miners were working
had, in fact, been examined before they entered, Buck Creek was in
compliance with section 303(d)(2) of the Mine Act, 30 U.S.C.
� 863(d)(2). Id. at 8-9.
The Commission is bound by the terms of the Mine Act to apply the
substantial evidence test when reviewing an administrative law judge's
factual determinations. 30 U.S.C. � 823(d)(2)(A)(ii)(I). The term
"substantial evidence" means "such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989),
quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
We conclude that substantial evidence supports the judge's finding
that Maggard, Sales and O'Bannon were part of the oncoming shift and
thus, that they were not permitted to enter the mine before completion
of the preshift examination. The overlapping schedules of the maintenance
and production employees, together with the necessity of completing
themantrip repair before production could begin, support the judge's
finding that Maggard, O'Bannon and Sales were the vanguard of the first
shift on April 26.
The dictionary definitions of the term "shift" proffered by the
operator, "[a] group of people who work or occupy themselves in turn
with other groups, a scheduled period of work or duty," are sufficiently
broad to encompass the three miners who entered the mine to perform
repair work.[3] Buck Creek also relies on the definition of "normal
work shift" contained in 30 C.F.R. � 71.2(i). B.C. Br. at 4. That
term, which is used relative to respirable dust sampling, applies only
to the Part 71 regulations governing health standards at surface coal
mines.[4] Moreover, as the Secretary points out, it is unimportant,
for purposes of the preshift standard, whether the miners were the
earliest crew of the first shift or whether they constituted a separate
maintenance shift; a preshift examination was required before they
were permitted to enter the mine.
We also reject Buck Creek's contention that the operator was
required to satisfy only the supplemental examination provisions of
section 75.361.[5] That section, which implements section 303(m) of
the Mine Act, provides, as relevant here, for a supplemental
examination of idle and abandoned areas whenever miners who are
underground are dispatched to an area of the mine that was not required
to be examined as part of the preshift examination. See 57 Fed Reg.
20,895 (1992). Such an examination is in addition to, not a substitute
for, a preshift examination. Moreover, the record makes clear that
all miners had to travel through the area at the bottom of the slope
to reach the north and south faces. Tr. 174-77; Resp. Ex. A. Thus,
the area was not "idle."[6]
To further support its position that its actions were not
violative, Buck Creek erroneously relies on the language of section
303(d)(2) of the Mine Act, 30 U.S.C. � 863(d)(2). Buck Creek asserts
that the judge erred by imposing an additional requirement that the
results of the entire examination be reported before miners enter the
mine. B.C. Br. at 8. Section 303(d)(2) complements section 303(d)(1)
by prohibiting anyone, other than designated certified persons, from
entering a mine unless the preshift examination required under the
preceding paragraph has been made within the immediately preceding
eight hours. Section 303(d)(2) does not repeat the requirement of
section 303(d)(1) that the results of the examination shall be
reported to the surface before anyone enters the mine.
Buck Creek's position is without merit. Section 303(d)(1) of the
Mine Act and 30 C.F.R. � 75.360, the regulation under which it was cited,
require that the results of the preshift examination be recorded at the
surface before miners on an incoming shift enter the mine.[7] Because we
have affirmed the judge's determination that Maggard, Sales and O'Bannon
were part of a shift, we conclude that the judge was correct in finding
that Buck Creek violated section 75.360.
For the foregoing reasons, we affirm the judge's determination of
violation.
B. Significant and Substantial
A violation is S&S[8] if, based on the particular facts surrounding
the violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature. Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825-26
(April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a measure of danger
to safety--contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Id. at 3-4. See also Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria).
The Secretary asserts that the failure to conduct a preshift
examination is presumptively S&S. In support, he argues that it was
reasonably likely that failure to conduct such an examination would
leave undiscovered a hazard that would result in an injury. S. Br. at
17-20. Alternatively, the Secretary argues that the judge incorrectly
applied the Mathies test and that the record evidence supports an S&S
finding. S. Br. at 21-25. Buck Creek challenges the use of a
presumption because the record lacks evidence as to why such a
presumption is legally supportable. The operator further asserts that
substantial evidence supports the judge's determination that the
alleged violation was not S&S. B.C. Rep. Br. at 3-7.
In determining that the violation was not S&S, the judge concluded
that, although the first and second elements of the Mathies test were
established, the third element was not. He found a violation of a
mandatory safety standard that created a discrete safety hazard, noting
that the mine had "a history of roof falls and high methane levels."
16 FMSHRC at 139. He concluded that the Secretary had not proven the
third Mathies element because two of the three repairmen were certified
preshift examiners, they entered the mine only as far as the foot of the
slope, and the area where the miners entered had already been inspected
with no hazards noted. Id. Substantial evidence does not support the
judge's conclusion that the violation was not S&S.
The considerations that the judge relied upon in addressing the
third element of Mathies are not dispositive of the issue. Although we
do not lightly overturn a judge's factual findings, neither are we bound
to affirm such determinations if only slight or dubious evidence is
present to support them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB,
732F. 2d 1288, 1293 (6th Cir.1984); Midwest Stock Exchange, Inc. v. NLRB,
635 F.2d 1255, 1263 (7th Cir. 1980). Further, the judge viewed the
record narrowly, ignoring relevant evidence. See generally Cyprus Plateau
Mining Corp., 16 FMSHRC 1610, 1613-14 (August 1994). In reviewing the
whole record, an appellate tribunal must also consider anything in the
record that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Universal Camera Corp. v. NLRB, 340
U.S. 474, 483 (1951).
The Secretary's evidence consisted chiefly of the testimony of
Inspector Stritzel. He noted that the mine had been idle over a weekend
and that the maintenance workers were the first shift back into the mine
on Monday. Tr. 33. He further noted that the last preshift examination
before the miners descended had been conducted two days earlier. Tr. 37.
During idle periods methane may build up. Further, as Stritzel stated,
falls or breaks in stoppings during idle periods could interrupt
ventilation, permitting methane to accumulate. Tr. 34, 117-18, 121.
Indeed, the mine had prior ventilation problems. Tr. 20. As the judge
found, the mine had experienced methane accumulations before the citation
was issued and it had a history of roof falls. Tr. 35-36, 118-19. We
reject Buck Creek's contention that the miners were not exposed to any
actual hazards because the area where they performed their repair work
had been inspected. Hazards in an unexamined portion of the mine could
affect the slope area where the repair crew was working. The mine was
developed for more than a mile both north and south of the area in
question. See Tr.28, 45- 47, 172-73; Resp. Ex. A. Nor does the fact
that two of the three miners were certified inspectors bear on the S&S
determination. They entered the mine to repair a mantrip, not to inspect
the mine, and there is no evidence their attention was focused on mine
conditions rather than on the mantrip.
Considering the record as a whole, we find that substantial evidence
does not support the judge's determination that Buck Creek's violation
was not reasonably likely to result in an injury. We also conclude that
the fourth element of Mathies is established: injuries resulting from
the hazards posed are reasonably likelyto be of a reasonably serious
nature. Accordingly, we reverse the judge's determination that the
violation was not S&S.[9]
**FOOTNOTES**
[1]: Section 75.360(a) provides:
Within 3 hours preceding the beginning of any shift and before
anyone on the oncoming shift, other than certified persons conducting
examinations required by this subpart, enters any underground area
of the mine, a certified person designated by the operator shall
make a preshift examination.
[2]: Order No. 4055142 states:
Three miners entered the mine at 6:45 a.m. without a valid
pre-shift examination of the mine being completed. Two certified
pre-shift examiners were in the process of conducting the
pre-shift examination. The south side of pre-shifting of the mine
began at 7:00 a.m. and finished at 7:30 a.m., called out to
surface at 7:35 a.m. and north side of mine pre-shift exam began
at 6:22 a.m. and finished at 7:22 a.m. and was called out to surface
at 7:30 a.m. Both pre-shift examiners were operator's agents,
1 mine manager and 1 foreman. Operator should know if pre-shift
exam is completed before permitting miners to enter the mine.
Joint Ex. 1.
[3]:B.C. Br. at 4, citing Webster's Third New Int'l Dictionary
(1976).
[4]:That it has no relevance to the preshift standard is evident by
the fact that it is defined, in part, as "a shift during which there
is no rain . . . ." 30 C.F.R. � 71.2(i).
[5]:Section 75.361 states in part:
(a) Except for certified persons conducting examinations required
by this subpart, within 3 hours before anyone enters an area in which
a preshift examination has not been made for that shift, a certified
person shall examine the area for hazardous conditions, determine
whether the air is traveling in its proper direction and at its
normal volume, and test for methane and oxygen deficiency.
30 C.F.R. � 75.361.
[6]: The dissent erroneously concludes that the bottom of the slope
"was an area of the mine that was idle." Slip op. at 11.
[7]: We note that section 75.360(a) does not authorize piecemeal
examinations of a mine.
[8]: The S&S terminology is taken from section 104 (d)(1) of the
Act, 30 U.S.C. � 814 (d)(1), which distinguishes as more serious in
nature any violation that "could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health
hazard . . . "
[9]: In light of our disposition, we need not reach the S&S presumption
advocated by the Secretary. C. Unwarrantable Failure
The unwarrantable failure terminology is taken from section 104(d)
of the Act and refers to more serious conduct by an operator in connection
with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (December 1987),
the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. This
determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure" ("neglect
of an assigned, expected or appropriate action"), and "negligence" (the
failure to use such care as a reasonably prudent and careful person would
use, characterized by "inadvertence," "thoughtlessness," and "inattention").
Id. Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference" or a "serious lack
of reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Corp.,
13 FMSHRC 189, 193-94 (February 1991). This determination was also based
on the purpose of the unwarrantable failure sanctions in the Mine Act,
the Act's legislative history, and judicial precedent. Emery, 9 FMSHRC
at 2002-03.
The judge found that Buck Creek's failure to comply with the
requirements for a preshift examination was the result of more than
inadvertence or thoughtlessness and thus arose from Buck Creek's
unwarrantable failure. 16 FMSHRC at 140. Buck Creek argues that its
actions do not constitute unwarrantable failure because any Commission
decision upholding the finding of a violation would be one of first
impression. B.C. Br. at 15. We disagree. The preshift examination
requirement is unambiguous and is of fundamental importance in assuring
a safe working environment underground. By its express terms, section
75.360 gives notice to the mine operator of the requirement of a preshift
examination under the circumstances presented here. It is common
knowledge that the preshift examination must be completed and recorded
at the surface before miners are allowed to enter a mine. We reject
Buck Creek's argument that the preshift standard is ambiguous and that
consequently it is absolved of unwarrantable failure.
We agree with the judge's conclusion that Buck Creek's failure to
comply with therequirement that a preshift examination be completed
before miners are permitted underground was the result of aggravated
conduct, constituting more than ordinary negligence. By sending miners
underground prematurely, Buck Creek exhibited the "serious lack of
reasonable care" that constitutes unwarrantable failure. See Cyprus
Plateau Mining Corp., 16 FMSHRC at 1616. Accordingly, we affirm the
judge's determination of unwarrantable failure.
D. Due Process
Buck Creek argues that the judge improperly considered information
of a factual nature contained in the Secretary's post-hearing brief:
the Secretary alleged that McDowell was superintendent of the Pyro
William Station Mine when, following a fatal explosion, a citation was
issued for failure to conduct an adequate preshift examination in areas
of the mine considered to be idle. The Secretary argued to the judge
that McDowell's involvement in that incident must have made him aware
of the requirements of the preshift standard. Buck Creek claims that
the judge relied on these statements in refusing to credit McDowell's
testimony.
Although the Secretary's belated attempt to discredit McDowell was
improper,[10] Buck Creek has failed to demonstrate that it was prejudiced
thereby. The Secretary's post-hearing brief provided information to
support his argument that the judge should disregard McDowell's testimony
regarding distinctions between idle hours and production hours under the
standard. S. Post-Hearing Br. at 13-14. There is no indication that the
judge in reaching his decision relied on the passage in the Secretary's
brief to which Buck Creek objects or that the material in question was
admitted by the judge.[11] The judge did not base his interpretation
of the standard on a credibility finding. Rather, he relied on the
plain language of section 75.360(a) in determining that a violation
occurred. 16 FMSHRC at 137.
The judge's discrediting of McDowell related solely to his testimony
that, before proceeding underground, the miners had called into the mine
to check conditions.[12] 16 FMSHRC at 140, n. 7. The judge discredited
this testimony because he found it "self-serving, uncorroborated [and]
hearsay." Id. Moreover, the testimony was not dispositive of any issue
in this case. Even assuming arguendo that the miners were told it was
safe to go into the mine, a violation occurred when they went underground
prior to the completionof the preshift examination. The testimony would
not affect our determination that substantial evidence supports the
judge's conclusion that the violation was S&S. Furthermore, McDowell's
testimony, if credited, would not have militated against a finding of
unwarrantable failure. Rather, the testimony would have provided
additional evidence that the operator, through its supervisory agents,
endorsed the miners' entry underground prior to the completion of the
preshift examination.
In any event, Buck Creek's attack on the Secretary's post-hearing
submission is, in essence, a request to overturn the judge's conclusion
that McDowell's testimony regarding the alleged call was not credible.
As the Commission has observed, "a judge's credibility determinations
may not be overturned lightly." Wyoming Fuel Co., n/k/a Basin Resources,
Inc., 16 FMSHRC 1618, 1629 (August 1994), citing Quinland Coals, Inc.,
9 FMSHRC 1614, 1618 (September 1987). It was within the judge's
discretion to discredit McDowell's testimony for the reasons the judge
set forth in his opinion and we find no reason to overturn that
determination.
III. Conclusion
For the foregoing reasons, we affirm the judge's determination that
Buck Creek violated section 75.360(a) and that the violation resulted from
its unwarrantable failure. We reverse the judge's conclusion that the
violation was not S&S, reject Buck Creek's claim that it was denied due
process and remand for reassessment of a civil penalty consistent with
this opinion.
________________________________
Mary Lu Jordan, Chairman
________________________________
Joyce A. Doyle, Commissioner
________________________________
Arlene Holen, Commissioner
**FOOTNOTES**
[10]:We note that Buck Creek likewise appended to its post-hearing
brief information that had not been introduced at the hearing. B.C.
Post-Hearing Br. at 2.
[11]:Unlike juries composed of "'ordinary untrained citizens' . . .
judges possess professional experience in valuing evidence." 1 J. Strong,
McCormick on Evidence 238 (4th ed. 1992) (citations omitted). Appellate
bodies reviewing cases tried without a jury generally presume that the
judge "disregarded the inadmissible and relied on the admissible
evidence." Id. The ability of judges to distinguish admissible from
inadmissible evidence has led to the common practice "adopted by
many experienced trial judges in nonjury cases of provisionally
admitting all debatably admissible evidence if objected to with the
announcement that all questions of admissibility will be reserved
until the evidence is all in." Id. at 239 (citations omitted).
[12]:The judge credited McDowell over Inspector Stritzel when he accepted
McDowell's account of where the miners were working. 16 FMSHRC at
134. The inspector testified that Austin had told him that one of
the three miners was in "main north, main east" in "the north part of the
coal mine." Tr. 58; Gov't Ex. 1. McDowell testified that all three
miners worked on the mantrip repair at the foot of the slope. Tr. 180.
Commissioner Marks, dissenting:
I dissent.
I would vacate the decision of the Administrative Law Judge on two
independent grounds and remand this case to the Chief Administrative Law
Judge for reassignment to another Administrative Law Judge for a hearing
de novo. First, in my view, the judge erred in not adequately considering
the contention of Buck Creek Coal Company, Inc. ("Buck Creek") that
under sections 303(d)(2) & (m) of the Mine Act, 30 U.S.C. � 801 et seq.
(1988) ("Act"), it was not required to conduct a section 303(d)(1) of
the Act preshift examination under the facts and circumstances of this
case. Second, in my view, Buck Creek did not receive a fair hearing.
I. The Judge Erred in Failing to Consider Whether a Section 303(d)(1)
Preshift Examination Was Required Under the Facts and Circumstances of
This Case in Light of Section 303(d)(2) & (m) of the Act and 30 C.F.R.
�75.361
The law generally requires that a preshift examination be conducted
prior to a shift entering the mine. See section 303(d)(1) of the Act,
30 U.S.C. � 863(d)(1), and 30 C.F.R. �75.360(a). Buck Creek presented an
argument that under sections 303(d)(2) & (m) of the Act and regulation
section 75.361, a preshift examination is not required when persons enter
an idle area of a mine that has not been preshifted, so long as a
"certified person [has] examine[d] the area for hazardous conditions,
determine[d] whether the air is traveling in its proper direction and at
its normal volume, and [has] test[ed] for methane and oxygen deficiency."
Section 75.361(a). The judge did not adequately consider Buck Creek's
position in this connection. I believe that the judge erred in failing
to consider whether, under sections 303(d)(2) & (m) of the Act and
regulation section 75.361, a supplemental examination may be conducted
in lieu of a preshift examination when anyone enters an idle area in
which a preshift examination has not been conducted.
Buck Creek proffered unrebutted testimony that the area into which
its maintenance crewd escended to conduct repairs was an area of the mine
that was idle and that had not been preshifted. Buck Creek further
proffered unrebutted testimony that a "certified person . . . examine[d]
the area for hazardous conditions, determine[d that] the air [was]
traveling in its proper direction and at its normal volume, and [had]
test[ed] for methane and oxygen deficiency." Section 75.361(a). Under
these facts and circumstances, the judge erred by not fully addressing
the issues presented, namely: (1) whether Buck Creek's interpretation
of Mine Act sections 303(d)(2) & (m) and regulation section 75.361 is
supported by the Act and its implementing regulations; (2) whether the
area of the mine in question was in fact an idle area within the meaning
of the Act and its implementing regulations; and (3) if issues (1) and
(2) were answered in the affirmative, whether a supplemental examination
may be conducted in lieu of a preshift examination under the circumstances
presented. The judge did not address these issues. Rather, the judge
stated that "I do not decide what difference, if any, McDowell's
self-serving, uncorroborated, hearsay testimony that the three men called
into the mine before entering to determine if it was safe to go in . . .
makes, since I do not credit that testimony." See Buck Creek Coal Co.,
Inc., 16 FMSHRC 133, 140 at n. 7 (January 1994). In my view, inasmuch as
Buck Creek presented unrebutted testimony that the area in question
was idle and a "certified person . . . examine[d] the area for hazardous
conditions, determine [d that] the air [was] traveling in its proper
direction and at its normal volume, and [had] test[ed] for methane and
oxygen deficiency[,]" it was incumbent upon the judge to decide the
three issues set forth above. Section 75.361(a). Therefore, I would
vacate the judge's decision and remand the case for further proceedings
on those issues.
II. Buck Creek Did Not Receive a Fair Hearing
In my view, Buck Creek did not receive a fair hearing. First, as
noted above, the judge failed to consider Buck Creek's contention that
it was not required by law to conduct a preshift examination under the
facts and circumstances presented. The judge rejected Buck Creek's
position in this connection out of hand.
Second, the judge accepted and considered new, highly prejudicial
evidence that the Secretary of Labor improperly submitted in its
post-hearing brief. The Secretary's new, highly prejudicial evidence in
his post-hearing brief went to the issue of unwarrantability. The
Secretary submitted evidence for the first time in his post-hearing
brief to establish that Buck Creek's failure to conduct a preshift
examination amounted to more than mere negligence. Again, in concluding
that Buck Creek's failure to conduct a preshift examination was
unwarrantable, the judge stated that it would be "astonishing to find
any miner who was not aware of [the preshift examination requirement]."
See Buck Creek Coal Co., Inc., 16 FMSHRC at 140. (Emphasis in the
original). Because of that view, the judge did not decide what
difference, if any, Buck Creek's position that it was not required by
law to conduct a preshift examination made, since he did not consider
Buck Creek's position in this connection or find it persuasive on the
issue of unwarrantability. Id. The judge incorrectly rejected out of
hand Buck Creek's position that a preshift examination was not required
by law under the facts and circumstances of this case, summarily
concluding that Buck Creek's position was specious and insufficient
to defeat a finding of unwarrantability.
While the judge, in his decision, did not refer to the evidence
that the Secretary submitted in his post-hearing brief when he decided
the issue of unwarrantability, it is clear to me, for several reasons,
that Buck Creek was denied a fair hearing as a result of that submission.
First, Buck Creek was not given an opportunity to cross examine the
evidence submitted by the Secretary in his post-hearing brief. Second,
the evidence submitted by the Secretary was inflammatory and prejudicial.
In this connection, the evidence submitted by the Secretary suggested
that Buck Creek's witness must have known about the Secretary's position
on preshift examinations in idle areas of a mine based on the witness's
participation in an investigation of an explosion in which ten miners
lost their lives. Because this inflammatory and prejudicial evidence
was submitted by the Secretary in his post-hearing brief, Buck Creek
was not afforded an opportunity to confront or cross-examine this
evidence. In Goldberg v. Kelly, 397 U.S. 254 (1970), the United States
Supreme Court stated that:
Certain principles have remained relatively immutable in our
jurisprudence. One of these is that where governmental action seriously
injures an individual, and the reasonableness of the action depends on
fact findings, the evidence used to prove the Government's case must be
disclosed to the individual so that he has an opportunity to show that
it is untrue. . . . [T]his is important in the case of documentary
evidence . . . . We have formalized these protections in the
requirements of confrontation and cross-examination. They have
ancient roots. They find expression in the Sixth Amendment . . . .
This Court has been zealous to protect these rights from erosion. It
has spoken out not only in criminal cases, . . . but also in all types
of cases where administrative . . . actions were under scrutiny."
Id. at 270 (quoting Greene v. McElroy, 360 U.S. 474, 496-497 (1959)).
I place a higher value on the principles protected by the Sixth Amendment,
namely confrontation and cross-examination, than I do on the ability of
any one, including judges, to put out of mind highly prejudicial
statements that they have heard or read. Experience has taught those
of us who have tried hundreds of civil and criminal lawsuits before
judges and juries to be skeptical when we hear those with no trial
experience blindly state that a trier of fact was not prejudiced because
he or she did not refer to the highly prejudicial statements they read
or heard, in their opinion. I am unwilling to allow the inflammatory
statements deliberately placed in the Secretary's post-hearing brief to
be written off as easily as the majority so casually sets them aside.
Buck Creek is entitled to the benefits of the Sixth Amendment. I
would not trade their Sixth Amendment right on the chance that the
judge in this case was not adversely affected by the deliberate
insertion by the Secretary's counsel of highly inflammatory, prejudicial
statements.
Accordingly, because the judge failed to consider Buck Creek's
contention that it was not required by law to conduct a preshift
examination under the facts and circumstances of this case and allowed
new, prejudicial evidence to be introduced in the Secretary's post-hearing
brief, I would vacate the decision of the judge and remand this case to
the Chief Administrative Law Judge for reassignment to another judge for
a hearing de novo. As a result of the foregoing, I do not reach the
other issues disposed of by my colleagues in this case.
_____________________________
Marc Lincoln Marks, Commissioner