Holding that “shall be required to wear” language in a
mine safety standard is equivalent to “shall be worn,” three members of the
Federal Mine Safety and Health Review Commission have wrongly reversed 42 years
of case law and handed regulators a new weapon to use against the coal sector.
In a decision July 19, Commission Chairwoman Mary Lu
Jordan and Commissioners Patrick Nakamura and William Althen gave six reasons
why they believe the language of 30 CFR § 77.1710 mandates that surface coal
operators assure their employees wear protective clothing and equipment when
appropriate. Their reasoning was not shared by Commissioners Robert Cohen, Jr.
and Michael Young.
30 CFR § 77.1710 states that miners “shall be required to
wear” protective clothing and devices under circumstances outlined in a number
of subsections, including subsection (i), which mandates seat belt use in
certain vehicles when there is a danger of overturning and where rollover
protection is provided. The subsection is relevant because the case is about a
rollover accident involving a 100-ton truck that occurred at the Chestnut Flats
Mine in Kentucky in April 2010. The driver, who was not wearing a seat belt,
sustained a lost-time injury. The Mine Safety and Health Administration cited
Nally & Hamilton (N&H) Enterprises for violating the standard.
Under existing case law predating the 1977 Mine Act, the
court has always made a distinction between the “shall be required to wear” language
of the standard and “shall be worn.” According to Young, the intent of a 1974
ruling concerning a standard employing the same “shall be required to wear”
phrasing was to forgive the operator’s liability if the infraction was solely
due to the miner’s negligence or disobedience. In the N&H case, MSHA’s own accident
investigator admitted the driver had been negligent.
A post-Mine Act decision, Southwestern Illinois Coal Corp., built on the earlier decision. In
that 1983 decision, which is known as Southwestern
I, Young noted the court majority held that “ ‘[t]he regulation does not
state that the operator must guarantee that belts and safety lines are actually
worn, but rather says only that each employee shall be required to wear them.’ ”
To be in compliance, operators had to have a system in place requiring
protective equipment and diligently enforcing its use. The Commission
reiterated its position in a similar case in 1985 involving the same company,
dubbed Southwestern II.
N&H has a mandatory seat belt use policy backed up by
a statement employees must sign prior to hire in which they agree to adhere to
the safety policy. The policy is restated during monthly foreman’s safety talks
and at annual refresher training, which employees also have to acknowledge by
their signature. The driver signed the appropriate form six times from 2004 through
2009. In addition, the operator had disciplined an employee found not to have
been in compliance. In another instance, an N&H employee who was wearing a
seat belt escaped injury after an accident. Convinced by this evidence that
N&H had taken reasonable steps to comply, Administrative Law Judge (ALJ) William
Moran vacated the citation in July 2013.
In its argument overruling Moran, the majority also
referenced Southwestern I, but championed
the dissenter’s interpretation that “required” means to mandate, not merely to exhort.
“ ‘[T]hat which is required, shall be done. … There is no meaningful, nor even
semantically persuasive distinction, between ‘shall be required to wear’ and
‘shall be worn,’ ” the majority wrote, quoting the dissenter.
The three commissioners said their interpretation also
harmonized 77.1710(i) with other sections of Part 77 and with parallel
metal/nonmetal regulations. They cited a practical reason to justify their
position, and contended their view was consistent with the Mine Act’s strict
liability dictate while best achieving the purpose of mining law; namely, to
protect miner health and safety. The
majority chose to ignore Young’s comment that nothing prevented MSHA from
rewriting the standard if it disagreed with the Commission’s historical
interpretation. The group made a similar call on the same day, July 19, regarding fall protection under 1710(g) in another case, Lewis-Goetz & Co., Inc.
The U.S. Supreme Court has held that settled law is best
left alone unless it is unworkable or badly reasoned. Young and Cohen asserted
that Southwestern I was neither and
that their colleagues had failed to make a case to justify overturning
precedent. As a result, Young agreed with the ALJ that the citation should be
vacated.
Cohen, however, took another tack. He said he believed
N&H could have done more by periodically spot-checking drivers for
compliance, and pointed out that N&H’s own safety coordinator had said as
much in his testimony. He alone also felt N&H was moderately negligent. Thus,
he upheld the ticket. Although Young sided with Moran, he conceded that the
very existence of the violation suggested a deficiency in the operator’s
approach, and agreed with Cohen a monitoring component should have been
employed.
In the end, the Commission remanded the case to Moran for
a decision on MSHA’s significant and substantial (S&S) designation of the
citation and to set an appropriate financial penalty. They let stand Moran’s
finding of no negligence.
In reading the 19-page decision, one admittedly
subjective takeaway is that the outcome may well have been orchestrated. Due to
clear mitigating circumstances regarding N&H’s diligence in enforcing its seat belt
policy, MSHA must surely have known that the $52,500 specially assessed fine it
levied would never hold up. Such a ridiculous, baseless amount would surely
trigger an appeal, a legal maneuver the agency may well have welcomed if its
aim was for a favorable ruling from a pliant Commission. If so, in the interest
of transparency, MSHA should admit it was using its special assessment weapon
for this novel purpose.
That the outcome may have been foreseen is also suggested
by ALJ Moran’s decision to craft an alternative scenario to his vacatur order
in case the Commission ruled against him. He said he would uphold the citation,
strike the S&S designation and set a $100 fine.
In our view, the Commission majority has replaced a
reasonable interpretation of the standard with an unreasonable one; i.e., it
has substituted bad law for good law, an opinion held by the minority
Commission faction. A higher court may well be totally unsympathetic to
stirring up over four decades of settled law without legal justification. If
MSHA’s legal strategy was to secure a favorable ruling, it would be sweet
retribution indeed if, on appeal, the reviewing tribunal threw out the
case.
One more thing. In writing the Mine Act, Congress made
clear its belief that a safe workplace was the joint responsibility of miners
and operators, with operators having “primary” responsibility. Section 2(g)
reads in pertinent part that “it is the purpose of this Act to establish … mandatory
health and safety standards … [and] to require that each operator of a coal or
other mine and every miner in such mine
comply with such standards …” [emphasis added]. It is time for MSHA to
treat miners like the grownups they are and craft standards beyond smoking
underground to hold them accountable for unsafe behavior found to have been
caused by their negligence or disobedience.
Copyright 2016, James Sharpe, CIH. All Rights Reserved.
