<DOC>
[DOCID: f:whayne.wais]

 
WHAYNE SUPPLY COMPANY
March 7, 1997
KENT 94-518-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006


                         March 7, 1997


SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
            v.                   : Docket Nos. KENT 94-518-R
                                 :             KENT 94-519-R
WHAYNE SUPPLY COMPANY            :             KENT 95-556


BEFORE:  Jordan, Chairman; Marks and Riley, Commissioners[1]


                            DECISION

BY THE COMMISSION:

     These consolidated contest and civil penalty proceedings,
arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 801 et seq. (1994) ("Mine Act" or "Act"), raise the
question whether a violation of 30 C.F.R. � 77.405(b)[2] by
Whayne Supply Company ("Whayne"), which led to the death of a
miner, resulted from the operator's unwarrantable failure.
Administrative Law Judge Arthur Amchan determined that the miner
was not Whayne's agent, that his conduct was nevertheless
imputable to the operator because of Whayne's lack of supervision
and training of the miner, but that his conduct was not
sufficiently aggravated to support a finding of unwarrantable
failure.  17 FMSHRC 1573 (September 1995) (ALJ).  The Commission
granted the Secretary's petition for discretionary review
challenging the negative unwarrantable failure determination.[3]
For the reasons set forth below, we vacate and remand.

                               I.

                Factual and Procedural Background

     Whayne 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 D10N bulldozer.  Id. at 1575.  Blanton
examined the D10N 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 D10N
bulldozer, one of three belly pans on the underside of the dozer
had to be lowered.  17 FMSHRC at 1575 n.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, 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 mechanics 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).[4]  17 FMSHRC at 1577.  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 steps 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.[5]  The judge rejected the Secre-
tary'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.

                               II.

                           Disposition

     The Secretary argues that, although the judge correctly
determined Blanton's negligence was imputable to the operator due
to Whayne's failure to properly train and supervise, the judge
erred in failing to impute negligence on the ground that Blanton
was Whayne's agent.  S. Br. at 5-6.  The Secretary contends that
Blanton was authorized by Whayne to act on its behalf at the mine
site, that experienced Whayne technicians "supervise themselves"
on the job, and that they are therefore agents of Whayne.  Id. at
8-11.  The Secretary asserts that Blanton's conduct was well
within the definition of aggravated conduct in that it was
deliberate, the hazard was obvious, and the condition created was
extremely hazardous.  Id. at 11-15.  He argues the judge's
negative unwarrantable failure determination is inconsistent with
his finding that Blanton's conduct defied explanation, and that
the number of miners put at risk by the conduct in question is
not determinative.  Id. at 15-16. The Secretary asks that the
Commission remand the matter for assessment of an appropriate
civil penalty.  Id. at 17.

     Whayne responds that, inasmuch as the citation never charged
it with responsibility for Blanton's negligence, it would be a
breach of due process to increase the magnitude of the violation
by reinstating the unwarrantable designation.  W. Br. at 10-12.
Whayne contends that Blanton was exercising the normal
responsibilities of his rank-and-file position of field mechanic
at the time of the accident, and was in no meaningful sense an
agent of the operator at any relevant time.  Id. at 13-25.
Whayne asserts that, assuming arguendo Blanton's status as
Whayne's agent, a comparison of the conduct of Whayne and Blanton
shows that Blanton was principally responsible for the accident,
and it would therefore be unfair to disturb the judge's negative
unwarrantable failure conclusion as to Whayne.  Id. at 25-31.
Finally, Whayne argues that the Commission should uphold the
judge's penalty assessment.  Id. at 32-36.

     A.   Unwarrantable Failure

                    1.   Agency

     Under section 104(d)(1) of the Act,  the Secretary is
authorized to issue a citation specifying that a violation was
"caused by an unwarrantable failure of [an] operator to comply
with . . . mandatory health or safety standards . . . ."  30
U.S.C. � 814(d)(1).  It is well settled that "an agent's conduct
may be imputed to the operator for unwarrantable failure
purposes."  Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194
(February 1991) ("R&P").  However, in the context of evaluating
negligence for penalty assessment purposes, the Commission has
held that "[t]he conduct of a rank-and-file miner is not
imputable to the operator."  Fort Scott Fertilizer-Cullor, Inc.,
17 FMSHRC 1112, 1116 (July 1995).  In analyzing a miner's duties
to determine whether he is an agent, the Commission examines
whether the miner was exercising managerial or supervisory
responsibilities at the time the negligent conduct occurred.
U.S. Coal, Inc., 17 FMSHRC 1684, 1688 (October 1995).

     The Secretary bases his contention that Blanton was Whayne's
agent on the grounds that (1) Blanton worked "mainly on his own
without management supervision out in the field," had "the
responsibility and discretion while on the job to determine the
problem and to take care of it without supervisory intervention
or guidance" and essentially supervised himself, (2) he was hired
with prior experience, "thereby not receiving any formal training
from Whayne," (3) he did not receive performance appraisals, (4)
"he sometimes supervised junior technicians on bigger jobs," and
(5) "Whayne guarantees the labor of its field mechanics[.]"  S.
Br. at 9-10.  The Secretary seeks to distinguish U.S. Coal on the
basis that, in the present case, Blanton and the other Whayne
field mechanics were "responsible for the operation of that part
of the mine which the repairs were to be made."  S. Br. at 9-10
n.4.

     We reject the Secretary's argument as lacking legal and
evidentiary support.  Although the record evidence indicates that
Blanton was a highly experienced repairperson who needed little
supervision and helped less experienced employees, this does not
convert him into a supervisor, much less a manager.  Cf. NLRB v.
Aquatech, Inc., 926 F.2d 538, 549 (6th Cir. 1991) ("Although it
is true that [the employee's] considerable experience allowed him
to train and guide workers in the performance of their jobs,
`[a]n individual does not become a supervisor merely because he
possesses greater skills and job responsibilities than his fellow
employees'") (quoting NLRB v. Lauren Mfg. Co., 712 F.2d 245, 248
(6th Cir. 1983)).[6]  In addition, there is no evidence that
Blanton exercised any of the traditional indicia of supervisory
responsibility such as the power to hire, discipline, transfer,
or evaluate employees.  Nor was there evidence that Blanton
"controlled" the mine or a portion thereof; rather, he merely
carried out routine duties involving the repair of Caterpillar
machinery.  His duties for Whayne carried out at the customer's
premises are consistent with those of a non-supervisory
leadperson.[7]

     Moreover, if Blanton were considered supervisory on the
basis of his duty to evaluate a given problem and effect a repair
without checking first with his supervisor, potentially all
repair personnel would fall into this category.  The essence of
the repair function is to evaluate a problem and fix it.  An
employee need not check in with his supervisor at specified
intervals in order to maintain his non-supervisory status.

     The Secretary's assertion that Whayne's warranty of its
field mechanics' work converts them into agents is also
unpersuasive.  As Whayne cogently points out (W. Br. at 21), an
assembly-line worker may contribute to the production of a
product that her employer warrants, and her employer may have to
pay out under the warranty based on the employee's error, but
this does not confer the status of agent on the worker.

     In any event, as the Secretary concedes (S. Br. at 10 n.4),
at the time the accident occurred, Blanton was performing the
routine duties of a rank-and-file field mechanic.  Thus, under
U.S. Coal, Blanton was not an agent of the operator whose
negligent conduct may be imputed to the operator.  We find
unsupported by record evidence the Secretary's attempt to
distinguish U.S. Coal by comparing Blanton with a section
foreman.  Blanton was alone and not supervising any employees at
the time of the accident.

     In sum, substantial evidence supports the judge's conclusion
that Blanton was not a supervisory employee.  We therefore affirm
the judge's conclusion that Blanton's conduct may not be imputed
to Whayne on the basis of agency.[8]

          2.   Whayne's Conduct

     Although an operator is not liable for aggravated conduct
based on the actions of a rank-and-file miner, it may
nevertheless be held responsible for an unwarrantable failure
based on its own conduct.  In Southern Ohio Coal Co., 4 FMSHRC
1459 (August 1982) ("SOCCO"), the Commission stated that, in the
context of evaluating operator conduct for the 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 miner's violative conduct.

Id. at 1464 (emphasis in original).  Although the Commission has
not expressly held this doctrine applicable to the examination of
operator conduct for unwarrantable failure determinations, its
applicability in the unwarrantable failure context was implied by
the holding in R&P that the conduct of a rank-and-file miner who
acts as the operator's agent is imputable to the operator for
unwarrantable failure purposes.  Holding the operator responsible
for its supervision, training and disciplining of employees is
consistent with section 104(d)(1) of the Mine Act, which provides
that a violation "caused by an unwarrantable failure of such
operator" shall be so recorded on the citation.

     The judge, however, mistakenly viewed SOCCO as announcing a
theory of imputed liability.  17 FMSHRC at 1578.  Based on this
perspective, the judge, finding that Whayne was to some degree
responsible for Blanton's conduct, went on to analyze Blanton's
actions to determine whether the operator had acted
unwarrantably.  Id. at 1578-80.  On review, the Secretary has
adopted the judge's framework.  He does not quarrel with the
judge's view that, under SOCCO, a rank-and-file miner's conduct
may be "imputed" to the operator.  Nor does the Secretary dispute
the judge's characterization of Whayne's supervision and training
of employees,[9] or claim that Whayne's conduct, in and of
itself, constituted aggravated conduct or more than ordinary
negligence.  Rather, he argues that the judge erred in evaluating
Blanton's conduct as being less than aggravated.  S. Br. at 15-
16.

     We think the approach of the Secretary and the judge amounts
to bootstrapping a conclusion of unwarrantable failure based on a
rank-and-filer's conduct which, under Commission precedent,
should not have been imputed to the operator.  Nothing in SOCCO
sanctions the imputation of negligence to the operator in these
circumstances.  Instead, SOCCO clearly focuses on the operator's
conduct, while making clear that the rank-and-file miner's
conduct may not, absent agency, be imputed to the operator.

     Because the judge misstated the law of unwarrantable failure
and failed to analyze the unwarrantable failure issue by focusing
on Whayne's, as opposed to Blanton's, conduct, we vacate the
judge's decision with respect to the issues of unwarrantable
failure and penalty, and remand on the present record for
analysis of Whayne's conduct in light of its training and
supervision of Blanton.[10]

     B.   Remand

     The judge's civil penalty assessment was infected with the
same error that tainted his unwarrantable failure conclusion:  he
analyzed the negligence criterion with reference to both the
conduct of Whayne and that of Blanton.  On remand, in accordance
with SOCCO, the judge must take care when assessing the civil
penalty to examine only the operator's conduct.


**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 77.405(b) provides:

               No   work   shall  be  performed   under
              machinery or equipment that  has been raised 
                  until  such machinery or equipment  has  been
          securely blocked in position.

     [3]:  The judge  also determined that the operator did  not
violate   the  on-shift  inspection requirement  contained   in 
30   C.F.R.   �  77.1713(a).    17  FMSHRC  at  1583-84.   The
Secretary  has  not appealed  that determination.

     [4]:   The judge found that the crane on Blanton's truck  was
working on the morning of January 20.  17 FMSHRC  at  1576.  The 
Secretary does not challenge this finding.

     [5]:   In another holding not  challenged  by  the  Secretary,
the  judge concluded that section  77.405(b)  does  not   require 
the  use  of cribbing or two chains.  17 FMSHRC 1580-82.

     [6]:  In addition, Blanton was covered  by a union  contract
and therefore presumably part  of  a  collective   bargaining   unit
from   which supervisors are excluded.  Tr. 369, 374;  see 29 U.S.C.
�� 152(3), 159(a).

     [7]:   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.    Tr.   216-17,  255-56.    Further,
although Blanton's  evaluation  was not based  on  his  supervisor's
direct review  of  his work,  his  supervisor did  evaluate  Blanton 
based  on feedback  from  customers  and  co-workers.  Tr. 254.

     [8]:  The judge merely noted that "Blanton was not a supervisory 
employee,"  without  a further inding that he was not in any other sense
an agent of Whayne.  17 FMSHRC at 1578.   Such a conclusion  is implied, 
however,  by  his reasoning  that  Blanton's  conduct  may  be examined 
only  on  account  of Whayne's  own negligence.  Id. at 1578-79.

     [9]:   The  judge's characterization  of  Whayne's conduct
was vague.  He stated that Blanton's  negligence   should   be 
imputed  to  Whayne  "because the record does  not  establish 
that Whayne Supply took such reasonable  steps  in training  and
supervising  Blanton,  that it should be  completely  absolved 
of responsibility  for his violative conduct for negligence and
penalty  purposes."  17 FMSHRC at 1578-79.  He went on to  hold 
that  "[i]n the absence of  training  in  the  proper procedure,
the failure  of  a  technician  to secure  the  belly  pan  was
not  completely beyond  Whayne  Supply's  control."   Id.  at
1579.     In    evaluating   the   operator's negligence for
penalty  assessment  purposes, the judge stated:

          The Secretary, in its narrative findings  for
          a  special  assessment,  characterizes Whayne
          Supply's  negligence  as  "high."    I  would
          characterize    it   as   "moderate."    This
          assessment      considers       both      the
          "thoughtlessness" of Mr. Blanton and the lack
          of formal training provided by Whayne  Supply
          regarding   belly   pan   removal.   While  I
          conclude that Whayne Supply  may  have relied
          too  much  on Mr. Blanton's prior experience,
          it certainly  was not a ridiculous assumption
          that he knew not  to  place  himself  under a
          belly pan after the bolts had been loosened.

Id. at 1582.

     [10]:  Given our disposition, we do not reach  the  question
whether   Blanton's   conduct   constituted  more  than  ordinary
negligence.


                              III.

                           Conclusion

     For the foregoing reasons, we vacate the judge's negative
unwarrantable failure determination and penalty assessment, and
remand to the Chief Administrative Law Judge for reassign-
ment,[11] reanalysis and penalty assessment, on the present
record, consistent with this opinion.


                              Mary Lu Jordan, Chairman

                              Marc Lincoln Marks, Commissioner

                              James C. Riley, Commissioner


**FOOTNOTES**

     [11]:  Judge Amchan has transferred to another agency.