<DOC>
[DOCID: f:midwestd.wais]
MIDWEST MATERIAL COMPANY
January 21, 1997
LAKE 94-126-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
January 21, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 94-126-M
:
MIDWEST MATERIAL COMPANY :
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]
DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act"). At issue is whether former Commission
Administrative Law Judge Arthur J. Amchan properly concluded that
a violation of 30 C.F.R. � 56.14211(a)[2] by Midwest Material
Corporation ("Midwest Material"), involving the use of improper
and unsafe procedures in dismantling a crane boom that resulted
in the death of miner Thomas Reaska, was not the result of
unwarrantable failure. 17 FMSHRC 636, 640 (April 1995) (ALJ).
The Commission granted the Secretary of Labor's petition for
discretionary review. For the reasons that follow, we reverse
the judge's determination that the violation of section
56.14211(a) was not the result of Midwest Material's
unwarrantable failure, and remand this matter for penalty
assessment.
I.
Factual and Procedural Background
In April 1993, Midwest Material acquired a sand and gravel
plant on Route 26 in Lacon, Illinois from Midwest Sand & Gravel
Company ("Midwest Sand & Gravel"), an unrelated company. 17
FMSHRC at 636-37. Following the acquisition, Jerry Henry, the
owner of Midwest Sand & Gravel, served as a consultant for
Midwest Material at the Lacon site. Id. at 637. In addition,
Midwest Material hired some of the individuals previously
employed by Midwest Sand & Gravel at the Lacon facility,
including Edward Schumacher, a working foreman, and miner Reaska.
Id. Schumacher and Reaska had both worked in the sand and gravel
business for 15 to 20 years, primarily for Jerry Henry and
Midwest Sand & Gravel. Id. at 639.
In May 1993, Midwest Material was preparing to move the
Lacon plant across Route 26, to a site near the river bed from
which it extracted sand and gravel. Id. at 637. The company
planned to use an American 599C mobile crawler crane to
disassemble and move the plant. Id. In order to accomplish this
task, it was necessary to add a 20-foot extension to the crane
boom. Id. On the morning of May 27, Richard Walsh, an on-site
superintendent, instructed Schumacher and Reaska to extend the
length of the crane boom. Id. Walsh designated Schumacher to be
the foreman in charge of the boom extension project. Id. at 639.
Schumacher and Reaska had both extended crane booms during their
previous employment with Midwest Sand & Gravel, and were
therefore familiar with the correct procedures for accomplishing
this task. Id. at 637, 639.
The standard procedure for extending the crane boom is to
first lower the tip of the boom to the ground. Id. at 637.
Next, the suspension lines that run from the top of the cab of
the crane along the length of the boom are relaxed and connected
to the top, far end of the first section of the boom by the
cradle, a device attached to the suspension lines. Id.; Tr. 43-
46; Gov't Ex. 1, inside cover (diagram). After the first section
of the boom is secured in this manner, lifting tension is again
taken up on the suspension lines and those parts of the boom
suspension lines that go with the remaining sections of the boom
are unfastened. 17 FMSHRC at 637; Tr. 43, 46; Resp. Ex. 2, at 2.
The lower set of retaining pins connecting the first and second
sections of the boom can then be driven out of their holes
without danger since the boom will not flex, bend or separate
when the lower pins are removed. 17 FMSHRC at 637; Tr. 43, 46;
Resp. Ex. 2, at 2. Lifting tension in the boom suspension lines
is then slowly released, causing the boom sections to pivot on
the upper set of retaining pins and to separate at the bottom
(where the retaining pins have been removed) as the boom is
lowered to the ground. 17 FMSHRC at 637; Tr. 43, 46-47; Resp.
Ex. 2, at 2. At this point, the upper set of retaining pins is
removed, thus completing the process of separating crane boom
sections. 17 FMSHRC at 637; Tr. 44, 47; Resp. Ex. 2, at 2. The
crane and the first section of the boom, safely supported by the
crane's suspension lines, are then backed away from the
dismantled sections of the boom, and new sections can be safely
added. 17 FMSHRC at 637.
On the morning of May 27, Schumacher began the project by
entering the cab of the crane and lowering the boom. Id. Reaska
signaled Schumacher to stop lowering the boom when it was still
about five feet off the ground, contrary to standard procedure.
Id. Schumacher left the cab and went to his truck, located about
50 feet away, to get a cable come-along for use in pulling down
the cradle so it could be connected to the first section of the
boom. Id.; Tr. 49, 73. While Schumacher was at his truck, and
prior to securing the first section of the boom, Reaska, from
underneath the boom, began driving out the pins that connected
the first and second sections. 17 FMSHRC at 638; Tr. 49, 52.
This was also contrary to standard procedure. Tr. 74-75, 96.
Consultant Jerry Henry then drove up and had a short
conversation with Schumacher on an unrelated manner. 17 FMSHRC
at 638; Tr. 49-51. After a minute or two, Schumacher and Henry
walked back to the crane and watched Reaska complete the process
of driving out the connecting pins from the boom. 17 FMSHRC at
638; Tr. 51-52. Schumacher placed his hand over the bottom angle
of the boom. Tr. 52. Schumacher made no effort, however, to
warn Reaska not to drive out the pins connecting the boom
sections until the boom could be properly secured. Tr. 197.
When Reaska drove out the second of two lower retaining pins
connecting the first and second sections of the boom, the boom
pivoted downward on the upper pins and the first section of the
boom fell on top of Reaska, pinning him to the ground. 17 FMSHRC
at 638; Gov't Ex. 1, at 1, 3. Henry was knocked down by second
section of the boom, but was not seriously injured. 17 FMSHRC at
638; Gov't Ex. 1, at 3. Reaska died at the scene. 17 FMSHRC at
638.
Jerry Spruell, an inspector from the Department of Labor's
Mine Safety and Health Administration ("MSHA"), investigated the
accident and issued a citation pursuant to section 104(d)(1) of
the Mine Act, 30 U.S.C. � 814(d)(1), alleging a "significant and
substantial" and "unwarrantable" violation of section 56.14211(a)
for permitting an employee to work under a crane boom that had
not been blocked or mechanically secured. 17 FMSHRC at 636, 638;
Gov't Ex. 2. The Secretary of Labor proposed a penalty of
$20,000 for the alleged violation. 17 FMSHRC at 636. Midwest
Material challenged the proposed assessment, contending that it
had not violated the standard and, alternatively, that any
violation was not the result of its unwarrantable failure.
Following an evidentiary hearing, the judge concluded that
Midwest Material had committed a significant and substantial
violation of section 56.14211(a), but that the violation was not
the result of unwarrantable failure. Id. at 638, 640, 642 & n.2.
The judge therefore affirmed the citation under section 104(a) of
the Mine Act, 30 U.S.C. � 814(a), rather than under section
104(d)(1), and assessed a civil penalty of $1,500. Id. at 640,
642.
The judge found that the negligence of foreman Schumacher in
connection with the improper dismantling of the crane boom was
imputable to Midwest Material, but concluded that Schumacher's
conduct was not sufficiently aggravated to rise to the level of
unwarrantable failure. Id. at 639-40.[3] The judge noted that
although the hazard was obvious, it existed only briefly before
the accident, and therefore was distinguishable from situations
where an operator allowed an obvious hazard to persist for a
significant period of time. Id. at 640. The judge also relied
on the lack of any evidence in the record that Reaska and
Schumacher were under pressure to dismantle the crane quickly or
that Midwest Material gained any production advantage from
performing this task improperly. Id. While finding that
Schumacher was aware that the correct procedures for disassembly
of the crane boom had not been followed, the judge concluded that
Schumacher's conduct "is better described as `thoughtless' or
`inattentive,' rather than `inexcusable or aggravated.'" Id.
The judge concluded that the evidence did not support an
unwarrantable failure finding, but rather indicated only that
"two competent, experienced miners who knew how to do this job
properly did it improperly for inexplicable reasons." Id.
The Commission granted the Secretary's petition for
discretionary review, which challenged the judge's finding that
the violation of section 56.14211(a) was not the result of
unwarrantable failure.
II.
Disposition
The Secretary argues that the evidence regarding the
improper manner in which the boom disassembly operation was
performed compels a finding that Schumacher's conduct was
intentional and deliberate, which qualifies as "aggravated
conduct" under the test for establishing unwarrantable failure.
S. Br. at 6-7. The Secretary also contends the judge failed to
adequately consider evidence that the violative conduct was
extraordinarily dangerous, and that the hazardous condition that
resulted, and the operator's failure to respond to it, were
visually obvious. Id. at 7-8. In addition, the Secretary
contends the judge failed to correctly apply the legal test for
determining the existence of unwarrantable failure. Id. at 5-6,
8-10. The Secretary argues that the judge improperly relied upon
the inexplicable nature of Schumacher's negligent conduct as
evidence of a lack of aggravated conduct. Id. at 8-9. The
Secretary also contends the judge erred in finding that
Schumacher's conduct was not unwarrantable because the violative
condition existed only for a brief period before the fatal
accident. Id. at 9-10.
In response, Midwest Material argues that the judge
correctly determined that its violation of section 56.14211(a)
was not the result of unwarrantable failure.[4] Midwest Material
contends that the judge's ruling on the unwarrantability issue
should not be overturned because it was based upon his direct
assessment of the testimony of witnesses who were at the scene of
the fatal accident.
The unwarrantable failure terminology is taken from section
104(d) of the Mine 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 "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 Co., 13 FMSHRC 189, 194 (February
1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136
(7th Cir. 1995) (approving Commission's unwarrantable failure
test).
We conclude that the judge misapplied the applicable
standard for determining whether the violation of section
56.14211(a) was the result of unwarrantable failure, and that his
finding that the violation was not due to unwarrantable failure
is not supported by substantial evidence.[5] First, the judge
failed to adequately consider that the negligent conduct of
foreman Schumacher resulted in a highly dangerous situation - a
miner working directly underneath unsecured heavy equipment to
dismantle that very same equipment. The high degree of danger
inherent in the situation is evidenced by the fatal accident that
resulted when Reaska removed the last pin connecting the first
and second sections of the boom. The Commission has relied upon
the high degree of danger posed by a violation to support an
unwarrantable failure finding. See BethEnergy Mines, Inc., 14
FMSHRC 1232, 1243-44 (August 1992) (finding unwarrantable failure
where the unsaddled beams "presented a danger" to miners entering
the area); Warren Steen Construction, Inc., 14 FMSHRC 1125, 1129
(July 1992) (finding violation to be aggravated and unwarrantable
based upon "common knowledge that power lines are hazardous, and
. . . that precautions are required when working near power lines
with heavy equipment"); Quinland Coals, Inc., 10 FMSHRC 705, 709
(June 1988) (finding unwarrantable failure where "roof conditions
were highly dangerous").
The judge's decision also fails to recognize that the
violation took place in the presence of a foreman, who, under
Commission precedent, is held to high standard of care. See
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987)
("section foreman is held to `demanding standard of care in
safety matters'") (quoting Wilmot Mining Co., 9 FMSHRC 684, 688
(April 1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (November
1995) (heightened standard of care required of section foreman
and mine superintendent).
In view of the extreme danger posed to a miner working
directly underneath the crane boom left in an unsecured position,
five feet off the ground, and the high level of responsibility to
which he is held, foreman Schumacher had a duty to exercise
extreme caution and care until the hazardous condition could be
eliminated. In our view, Schumacher breached that duty in
several important respects. First, he failed to lower the crane
boom completely to the ground, in accordance with standard
procedure. In addition, he left Reaska in the immediate vicinity
of a crane boom that he knew was unsecured, several feet off the
ground, without warning him about the danger that existed or
instructing him not to work under the crane boom. Finally, he
watched Reaska drive out connecting pins from under the unsecured
boom without providing any warning of the disastrous consequences
that could, and in fact did, occur.
In addition, the judge did not take adequate account of the
obvious nature of the hazard created by Schumacher's negligent
conduct, which is a further indication that the violation
involved a "serious lack of reasonable care." Even a casual
observer at the accident scene could have perceived that Reaska
was being placed in a precarious and highly dangerous position as
a result of the failure to adhere to proper procedures for
disassembly of the crane boom.[6] Certainly Schumacher, given
his experience and familiarity with this task, and the high
degree of care required of him, should have appreciated the
obvious hazard that existed and insisted on adherence to proper
procedures by, at a minimum, warning Reaska not to remove the
connecting pins or work underneath the crane boom until it could
be properly secured. We have relied upon the obvious nature of a
hazard in making an unwarrantable failure determination. See,
e.g., Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (August
1994) (inoperable brakes on shuttle car); Quinland Coals, 10
FMSHRC at 708-09 (obvious nature of poor roof conditions).
Further, we agree with the Secretary's contention that
Schumacher's inability to provide any explanation for his
negligence and the lack of safety precautions that resulted in
this fatal accident supports, rather detracts from, an
unwarrantable failure finding. Although Schumacher was familiar
with the proper procedure for dismantling the crane boom, as well
as the hazard of working under a raised load, he testified that
in the period immediately prior to the accident neither he, Henry
nor Reaska noticed they had missed a critical step in the process
of the dismantling the boom - attaching the cradle and the
suspension lines to the first section of the boom. Tr. 74-75,
148, 163. In explaining the failure to notice that the
appropriate procedures had not been followed, Schumacher
testified as follows: "[N]obody noticed anything. We [were] all
just brain dead or just mentally blocked." Tr. 52.[7] This
lapse of judgment or presence of mind on the part of the mine
foreman with respect to the proper procedures for dismantling the
crane boom, in our view, qualifies as the type of "indifference"
or "serious lack of reasonable care" that constitutes
unwarrantable failure, particularly in light of the extremely
dangerous position that Reaska was placed in as a result.
Therefore, we conclude that the judge erred in finding that the
"thoughtless" and "inattentive" character of Schumacher's conduct
supports a finding that his conduct was not sufficiently
aggravated to amount to unwarrantable failure.
In addition, we find that several other elements of the
judge's analysis of Schumacher's conduct are faulty, and further
undermine his conclusion that the violation of section
56.14211(a) was not the result of unwarrantable failure. The
judge's reliance on the relatively brief duration of the
violative conduct was misplaced, in view of the high degree of
danger posed by the hazardous condition and its obvious nature.
Given the extreme hazard created by Schumacher's negligent
conduct, that misconduct is readily distinguishable from other
types of violations - such as those involving the accumulation of
coal dust - where the degree of danger and the operator's
responsibility for learning of and addressing the hazard may
increase gradually over time. Moreover, the judge failed to
recognize that the hazardous condition existed for a brief period
of time only because it culminated in the collapse of the boom on
Reaska, resulting in his death.
In finding that this violation was not unwarrantable, the
judge also relied upon the lack of
evidence in the record that Schumacher failed to insist on proper
procedures because the miners were under pressure to dismantle
the crane quickly or that Midwest Material gained any sort of
production advantage from performing this task improperly. 17
FMSHRC at 640. This analysis is also erroneous, however, because
even though the record does not support the Secretary's
contention that Schumacher's conduct was intentional and
deliberate, this does not preclude a finding that Schumacher's
reckless indifference to the safety of a fellow miner is
aggravated conduct that constitutes unwarrantable failure. It is
well established that intentional and deliberate conduct is not a
condition precedent to a determination of unwarrantable failure.
See Emery Mining, 9 FMSHRC at 2003-04; Rochester & Pittsburgh, 13
FMSHRC at 193-94; S&H Mining, 17 FMSHRC at 1923.
Based on these considerations, we conclude that the judge
misapplied the unwarrantable failure test, and that the record as
a whole does not support the judge's determination that Midwest
Material did not engage in aggravated conduct. Rather, the
record compels the conclusion that Schumacher's conduct reflected
reckless indifference and a serious lack of reasonable care.
Accordingly, we reverse the judge's determination that the
violation was not the result of Midwest Material's unwarrantable
failure, convert the section 104(a) violation to a section
104(d)(1) violation, and remand this matter to the Chief
Administrative Law Judge for assignment to a judge for penalty
assessment.[8]
III.
Conclusion
For the foregoing reasons, we reverse the judge's
determination that the violation of section 56.14211(a) was not
the result of Midwest Material's unwarrantable failure, and
remand this case for assessment of an appropriate civil penalty.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
**FOOTNOTES**
[1]: Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 823(c), this panel of three
Commissioners has been designated to exercise the powers of the
Commission.
[2]: Section 56.14211 provides, in relevant part:
(a) Persons shall not work on top of,
under, or work from mobile equipment in a
raised position until the equipment has been
blocked or mechanically secured to prevent it
from rolling or falling accidentally.
[3]: The judge concluded that only Schumacher's
conduct was relevant in determining whether the violation
was the result of "unwarrantable failure," noting that
the Secretary had not alleged negligence an the part of
superintendent Walsh or any other company official,
including consultant Jerry Henry. Id. at 639.
[4]: The position of Midwest Material is set
forth in a letter dated May 28, 1995 submitted by
its president, Paul Williams, in opposition to the
Secretary's petition for discretionary review, as
explained in a subsequent letter from Williams
dated September 23, 1995.
[5]: 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)).
In reviewing the whole record, an appellate tribunal
must 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, 488
(1951).
[6]: As even Schumacher acknowledged, anyone
walking up to the scene of the accident would have
recognized that a critical step in the process of
dismantling the boom - attaching the crane's suspension
lines by the cradle to the first section of the boom - had
not been completed when Reaska removed the connecting
pins. Tr. 96.
[7]: In addition, MSHA Inspector Jerry Spruell
testified that, when he questioned Schumacher about the
failure to follow proper procedures for dismantling the
crane boom, Schumacher stated, "[w]e drew three blank
minds" - referring to himself, Reaska, and Henry. Tr.
147.
[8]: Judge Amchan has since transferred to
another agency.