Wilmot Min. Co. v. Secretary of Labor, 87-3480
| Decision Date | 17 May 1988 |
| Docket Number | No. 87-3480,87-3480 |
| Citation | 848 F.2d 195 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. WILMOT MINING COMPANY, an Ohio Business Corporation, Petitioner, v. SECRETARY OF LABOR, Mine Safety and Health Administration (MSHA), and Federal Mine Safety and Health Review Commission (FMSHRC), Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before MILBURN and BOGGS, Circuit Judges, and ANN ALDRICH, District Judge *.
Petitioner Wilmot Mining Company petitions for review of an order of the Federal Mine Safety and Health Review Commission ("FMSHRC") finding Wilmot guilty of safety violations and assessing penalties. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
Wilmot Mining Company operates a strip mine in Stark County, Ohio. At all times relevant to this proceeding, Wilmot employed fourteen employees. John Schrock was employed by Wilmot as Mine Superintendent. He had fifty years of mining experience, approximately fifteen of them with Wilmot.
On May 24, 1984, Schrock informed Harold Bain, the General Manager of the mine, that the starter on the vehicle Schrock normally operated in the mine was not working. Bain then agreed to take the starter to be repaired and advised Schrock that, in the meantime, he could use the 910 Caterpillar front-end loader available in the garage. The 910 Caterpillar was equipped with a rollover protective structure (ROPS).
For some inexplicable reason, Schrock declined to use the 910 Caterpillar. Rather, he obtained a Terex front-end loader from the reclamation area to use while his regular equipment was being repaired. The Terex did not have a ROPS.
On the morning of May 25, 1984, Schrock assisted Glenn Shoup in loading coal in the pit. Schrock operated the Terex on that day both in the pit and in the surrounding mine area.
There is some dispute as to whether Harold Bain ever saw Schrock operating the Terex in the pit. Bain consistently testified before the Administrative Law Judge ("ALJ") that he never saw Schrock operating the Terex in the pit. However, E. Ray Marker testified that Bain told him that he had seen Schrock operating the Terex in the pit.
On the afternoon of May 25, 1984, Bain observed Schrock planting trees along a road near the pit. At that time, Bain gave Schrock the paychecks to deliver to the miners working in the pit. Parked near Schrock were the Terex and Schrock's company pick-up truck.
At approximately 1:45 p.m. on May 25, 1984, Schrock drove the Terex to the equipment parking lot near the entrance to the pit. He spoke with Ralph "Pat" Hoover, a mine mechanic, and told Hoover that he had lost his brakes. Hoover went to get his tools, but when he returned to inspect the brakes, Schrock had left in the Terex.
Schrock drove into the pit area, delivered the paychecks, and at approximately 2:00 p.m. started back up the inclined roadway out of the pit. As he was exiting the pit, he stopped approximately 100 feet from the bottom and then began backing down to make room for a descending coal truck. Schrock apparently lost control of the Terex, and it began to roll backwards. It then went off the road and struck the face of a highwall. The vehicle overturned, crushing the cab and fatally injuring Schrock.
An investigation led by Mine Safety and Health Administration Inspector Ray Marker commenced approximately two hours after the accident. On May 30, 1984, the Terex was removed from the pit. At that time, the vehicle was checked, and the investigators noted that the master cylinder and auxiliary cylinders for the braking system had low fluid levels. Marker testified that he believed the master cylinder had approximately one-half inch of fluid and the auxiliary brake cylinder had approximately one inch of fluid. He further testified that, to the best of his recollection, both brake cylinders would normally hold three inches of fluid, and that he checked to see if the brake line or wheel cylinder had been damaged or if any kind of hydraulic leak on the braking system had occurred. None was found.
Subsequently, the Terex was taken to a flat parking lot where Pat Hoover drove it at a reasonably slow speed and applied the brakes. The Terex did not come to a stop for approximately thirty-six feet after the brakes were applied. Marker testified that this starting and stopping procedure was repeated several times, and it appeared that each time the brakes were applied, less braking effect was noticed.
Marker further testified that he cited Wilmot for operating equipment with inadequate brakes because his examination indicated that the brake cylinders in the Terex were low on fluid. Additionally, the fact that the stopping distance was much greater than normal supported his conclusion that the brakes were inadequate.
At the hearing, Harold Bain testified that although he was responsible for coordinating the activities of all of the mine superintendents, he considered himself an equal to John Schrock. Bain insisted that on the day of the accident, he did not see Schrock operate the Terex in the pit. He also stated that, in his opinion, the amount of fluid in the brake cylinders was sufficient to cause the vehicle to stop, and that he believed the cause of the brake failure was a blown cylinder.
Bain further testified that he never thought Schrock would operate the Terex in the pit. He indicated that he had no authority to discipline Schrock, but that if he had seen Schrock operating the Terex in the pit, he would have attempted to make him stop. He was uncertain whether Schrock would have complied with such a request. 1
Bain testified that he never told Schrock not to use the Terex in the pit. However, in an affidavit filed in the administrative proceedings, the owner of Wilmot Mining Company, Thomas R. Eddie, stated that Bain specifically instructed Schrock not to use the Terex in the pit.
After consideration of the evidence, the ALJ concluded that the record supported a finding that Wilmot had violated three safety regulations. First, the ALJ concluded that Wilmot had violated 30 C.F.R. Sec. 48.28(a), which requires operators to give miners annual refresher training. Second, the ALJ concluded that Wilmot had violated 30 C.F.R. Sec. 77.403a(a), which requires that all front-end loaders utilized in surface coal mines must be equipped with rollover protective structures. Finally, the ALJ found that Wilmot violated 30 C.F.R. Sec. 77.1605(b), which requires mobile equipment to be equipped with adequate brakes.
The ALJ also assessed civil penalties for these violations. He found that, with respect to the ROPS violation, Bain knew that Schrock was operating a vehicle without a ROPS and that he knew or should have known that Schrock would drive the vehicle in the pit. Because of the gravity of the violation and the gross negligence involved, and upon consideration of the remaining statutory criteria, the ALJ concluded that a $2,000.00 civil penalty was appropriate for this violation.
With regard to the violation involving the inadequate brakes, the ALJ concluded that the brakes were defective and that Schrock, a supervisory employee, was grossly negligent when he drove the Terex into the pit with defective brakes. The ALJ concluded that Schrock greatly endangered himself and other persons and that his gross negligence should be imputed to the employer. Accordingly, the ALJ concluded that a penalty of $5,000.00 was appropriate for this violation.
The decision of the ALJ was reviewed by the full Commission, which concluded that the record would not support a finding that Wilmot had violated the refresher training regulation. However, it upheld the decision of the ALJ on all other material issues.
Wilmot subsequently filed this petition for review. Wilmot argues that the finding of a violation of 30 C.F.R. Sec. 77.1605(b) is not supported by substantial evidence, 2 and further argues that, because the alleged negligence of its supervisors was improperly imputed to it, the penalty assessment was an abuse of discretion. Finally, Wilmot contends that 30 C.F.R. Sec. 77.1605(b) is unconstitutionally vague on its face.
Wilmot first argues that the decision of the Administrative Law Judge, as upheld by the full Commission, that it violated 30 C.F.R. Sec. 77.1605(b) is not supported by substantial evidence. Our standard of review is limited to determination of whether the Commission's findings of fact are supported by substantial evidence on the record as a whole. 30 U.S.C. Sec. 816. In reviewing the decisions of the Commission, we are mindful of the fact that the Act imposes liability upon operators regardless of fault. See, e.g., Miller Mining Co. v. FMSHRC, 713 F.2d 487 (9th Cir.1983); Allied Products Co. v. FMSHRC, 666 F.2d 890 (5th Cir. Unit B 1982). Thus, the focus of our inquiry is whether there was substantial evidence on the record as a whole to support the conclusion that the Terex operated by John Schrock had inadequate brakes.
We hold that there was ample evidence in the record upon which to conclude that the brakes on the Terex were inadequate. Although there may be some question as to whether the inadequacy was caused by low fluid or a blown cylinder, the fact remains that the stopping distance in post-accident tests was thirty-six feet as opposed to the usual five feet. Moreover, the evidence is undisputed that almost immediately before the accident, Schrock told mechanic Pat Hoover that he had lost his brakes. Nevertheless, Schrock proceeded to return to the pit even though he knew his brakes were not working. Under these circumstances, the record clearly supports the Commission's finding of a violation. See Secretary of Labor v. Adams...
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...cases which support the position that Section 110(a) of the Mine Act imposes liability without fault, see Wilmot Mining Co. v. Secretary of Labor, 848 F.2d 195 (6th Cir.1988) (although negligence of supervisory employee could not be imputed to the operator for purposes of determining an app......