Mine operator wins on unwarrantable failure PPE issue

Tina Grady Barbaccia

December 4, 2012

One of the newer Administrative Law Judges – William Steele – has issued a decision in favor of a limestone quarry operator in a case involving a worker’s failure to wear eye protection. In Michels Corporation (ALJ, November 2012), ALJ Steele modified an unwarrantable failure citation issued under Section 104(d)(1) of the Mine Act to a simple Section 104(a) citation, and in doing so reduced the penalty from the mandatory minimum $2,000 penalty required for Section 104(d)(1) violations under the 2006 MINER Act to the “regular” Part 100.3 point system penalty of $473. However, as explained below, he rejected the operator’s assertion of the “NACCO” affirmative defense on negligence issues.

The worker at issue, Tom Peter, was the subject of the citation, which asserted that Peter failed to wear mandatory eye protection, in violation of 30 CFR 56.15007. The citation was classified as “reasonably likely” to result in permanent disability. The citation was issued as an unwarrantable failure by theMine Safety and Health Administration (MSHA) because Peter was viewed as an “agent” of the corporation at the time because he directed the workforce and “was regarded” as a supervisor by others at the plant, and was also in charge of safety and health at the plant. MSHA argued that his negligent conduct was imputed to the company for purposes of classifying the citation under Section 104(d)(1).

The operator responded that Peter’s conduct could not be used against the company because he was not an agent and because his conduct was not “aggravated;” it also argued that the violation was not significant and substantial and did not involve high negligence.

The citation was issued by Inspector Leppanen from the Marquette, Mich., field office. When the inspector arrived and asked who the foreman was, he was directed to Peter. Leppanen observed Peter cutting with an oxygen/acetylene torch and realized that he was not wearing safety glasses. When asked why, Peter said he knew he was supposed to wear them, but had forgotten and acknowledged that this was his own fault.

Peter testified at trial that he had been wearing them previously and had forgotten to put them back on after completing some paperwork. The inspector claimed that performing the task in this manner created the risk of eye hazards from flying molten metal sparks.

At the time, Peter was cutting a round object that was full of rocks, which caused blowback with sparks. At trial, Peter testified that he did not believe there was a lot of material blowing back at him, and that he was not burned. He also testified that he had been trained to wear the protective gear, and that the company had provided safety equipment for this task. Peter denied at trial that his duties included directing the workforce, and said that he and the loader operators can report each other for unsafe conduct. But he added that it is his responsibility to track tonnage at the mine (which the other workers did not do) and that he had use of a company truck, which also did not extend to the others. Peter also was responsible for completing the daily workplace examination reports required under 56.18002.

During the inspection, Leppanen discussed the issue with Jason Schmidt, the company’s safety and project coordinator. Schmidt also agreed that glasses were required for this task and that this was company policy. Peter was questioned at the closeout as to his role, and he said he was the crushing foreman who directed the workforce and also was paid more than other employees. He did supervise two loader operators, but did not tell them what to do on a daily basis and only provided minor direction (e.g., where to dig). He also admitted he was in charge of health and safety rules at the plant, but said they applied mostly to himself because the loader operators took care of themselves. He did not have the power to discipline without going through upper management.

At trial, Schmidt testified that while Peter provided him with information about safety at the plant, so did the other workers. It was, he said, Peter’s responsibility to correct problems identified on site, but if the problem could not be corrected, Peter would have to contact Schmidt or another supervisor to get parts or personnel as needed. He denied that Peter was part of management because he could not address questions or problems beyond routine functions, but noted that Peter would be “in charge” when Schmidt was not present. He also confirmed that protective equipment was covered during the company’s annual refresher training and in weekly tailgate meetings. Schmidt added that when he previously observed Peter performing welding tasks, he was wearing appropriate eye protection.

ALJ Steele analyzed whether Peter was an agent of the company and whether his conduct could be imputed to the mine operator for purposes of an unwarrantable failure. Section 3(e) of the Mine Act defines “agent” as “any person charged with responsibility for the operation of all of part of a mine or the supervision of the miners in a mine.” The Commission has previously recognized, in numerous cases, that the negligence of an “agent” is imputable to the operator for penalty assessment and unwarrantable failure purposes, whereas the negligence of a “rank-and-file” miner is not.

In the Commission’s precedential decision in Nelson Quarries Inc. (March 2009), it was held that – when considering whether an employee is an “agent” of management — the (Federal Mine Safety and Health Review Commission) FMSHRC does not rely upon the job title of qualifications, but upon his function, whether it was crucial to the mine’s operator and involved a level of responsibility normally delegated to management personnel. Factors included whether the employee had the ability to direct the workforce, held himself out as having supervisory responsibilities, was regarded that way by other miners, and whether his actions in directing the workforce have an impact on safety and health at the mine. In the Nelson case, all three employees at issue were held to be agents because they “held themselves out” as representatives when they accompanied the inspector during the inspection, and also because they performed the mandatory workplace examinations under 56.18002.

In the Michels case, Peter was the crushing foreman who was “in charge” when other supervisors were absent and was listed as in charge of health and safety on the mine’s legal identity report. Although it was not disputed that he could not hire, fire, or discipline others, that was not a prerequisite of finding agency, ALJ Steele said. Therefore, he was satisfied that Peter met the test to be classified as an agent of management.

The judge also upheld the validity of the violation, because eye protection was needed during welding, cutting, or working with molten metal. He applied the test for “S&S” classification (a violation with a “reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature”), noting that it is the contribution of a violation to the cause and effect of a hazard that must be S&S. Here, the Secretary carried her burden of proof in showing that Peter could have been severely injured himself, even though no other workers were close enough to be affected.

ALJ Steele then turned to the unwarrantable failure analysis, observing that “high” negligence (as the citation was classified) means that “the operator knew or should have known of the violation condition or practice and there are no mitigating circumstances.”

An unwarrantable failure, by definition, is more than ordinary negligence and so all relevant facts and circumstances must be examined to determine the presence or absence of mitigating factors. The judge is empowered to determine, at his discretion, which factors are relevant and which are less important than others. Aggravating factors include the length of time the violation existed, the extent of the violative condition, whether the operator was on notice that greater efforts were necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious or posed a high degree of danger, and the operator’s knowledge of the existance of the violation.

Based on the circumstances present, the ALJ found that there was not an unwarrantable failure because, while Peter torched without protection for approximately 30 seconds (long enough to cause injury), it appeared that the failure to wear the protective gear was a solitary lapse in behavior, and it did not affect anyone other that Peter himself. As an agent of management, Peter’s knowledge was imputed to Michels, but the company immediately retrained him on PPE use and disciplined him for his actions. The judge noted that the company went beyond minimum training by holding regular tailgate meetings tailored to particular safety issues. Therefore, he found that only moderate negligence was present. This required the citation to be reclassified to a Section 104(a) citation.

Finally, ALJ Steele discussed the so-called ‘NACCOMining” defense (from a 1981 decision), where the Commission held that: (1) where an operator has taken reasonable steps to avoid a particular class of accident and (2) the erring supervisor unforeseeably exposes only himself to risk, it would make little enforcement sense to penalize the operator for this foreman’s misconduct. However, subsequent Commission decisions have severely limited the applicability of NACCO, expressly saying that it will not be extended when an unwarrantable failure issue is charged by the Secretary. Thus, he found, the NACCO defense was no longer available to Michels in this case.

Adele Abrams, Esp., CMSP
Adele Abrams

About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center, and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.


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