<DOC>
[DOCID: f:se96-9.wais]

 
VECELLIO & GROGAN INCORPORATED
August 1, 1996
SE 96-9-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET N.W., 6TH FLOOR
                    WASHINGTON,  D.C.  20006

                         August 1, 1996

SECRETARY  OF  LABOR,       :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH    :
  ADMINISTRATION  (MSHA),   :    Docket No. SE 96-9-M
                Petitioner  :    A. C. No. 08-01058-05528
                            :
                    v.      :    White Rock Quarries
                            :
VECELLIO & GROGAN           :
  INCORPORATED,             :
                Respondent  :

                            DECISION

Appearances:  Karen  E  Mock,  Esq.,  Office  of  the Solicitor,
              U. S. Department Of Labor, Atlanta, Georgia,
              for Petitioner; Roger L. Sabo, Esq., Schottenstein,
              Zox & Dunn, Columbus, Ohio for Respondent.

Before:  Judge Merlin

Statement of the Case

     This case is a petition for the assess-
ment of a civil penalty filed by the Secretary  of
Labor  against Vecellio & Grogan, Incorporated, under
section 110 of the Federal Mine Safety and Health Act
of 1977, 30  U.S.C.    820.  A hearing was held on
May  8, 1996, and the parties  have submitted post
hearing briefs.

     Section 110(a) of the Act, 30 U.S.C.  820(a),
provides that a mine operator of a facility  covered
under  the Act  where  a  violation  of a mandatory
health or safety standard occurs, shall  be assessed
a civil penalty. It is well settled that the Secretary
has the burden  of  proving a violation.  Keystone
Coal Mining Corp., 17  FMSHRC 1819, 1838 (November
1995); Southern Ohio Coal  Co.,  14  FMSHRC  1781,
1785 (November 1992); Garden Creek Pocahontas,  11
FMSHRC  2148,  2152 (November 1989); Consolidation
Coal Co., 11 FMSHRC  966,  973  (June  1989);  Jim
Walter  Resources,  Inc.,  9  FMSHRC 903, 907 (May
1987).   Where  a  violation  is  proved,  section
110(i), 30 U.S.C.  820(i), sets forth six factors
to  be  considered in determining the  appropriate
amount of  a  civil  penalty  as follows: gravity,
negligence,  prior  history  of violations,  size,
ability to continue in business,  and  good  faith
abatement.

     The  alleged  violation  in  this  case  is
contained in a citation issued under section 104(d)
(1) of the Act, 30 U.S.C.  814(d)(1). This section
provides  that  where there is a violation that is
both  significant   and  substantial  and  due  to
unwarrantable failure,  a citation shall be issued
containing such findings.   If  within 90 days the
Secretary   finds   another   violation   due   to
unwarrantable failure, a withdrawal  order must be
issued.

     The subject citation charges a violation of
section 56.12071 of the Secretary's mandatory standards,
30 C.F.R.  56.12071, which provides as follows:

     When equipment must be moved or operated near
energized high-voltage powerlines (other than trolley
lines) and the clearance is less than 10 feet, the
lines shall be deenergized or other precautionary
measures shall be taken.

     Citation No. 4088141, dated April 13, 1995, charges
a violation for the following condition or practice:

     A fatal accident occurred at this mine at about
12:05 P.M. on April 10th 1995, when a Manitex Boom
Truck, Model No. 1461, boom came in contact with,
13,200, Volt Overhead Power Line.  The victim was
holding onto the boom cable preparing to hook up for a
lift when the extended boom was swung into the power
line resulting in an electrocution.

     The foreman (victim) was aware of the vicinity of
the power lines and was also directing the boom opera-
tor by hand signals, this is an unwarrantable failure.

The inspector who issued the citation found the violation
was significant and substantial and due to high negligence.

At the hearing the parties agreed to the following
stipulations (Tr. 5-6):

     1.  The operator is the owner and operator of the
subject mine, and for purposes of this proceeding the
operator is White Rock Quarries, a division of Vecellio
& Grogan, Inc.;

     2.   The operator and the mine are subject to  the
jurisdiction  of the Federal Mine Safety and Health Act
of 1977;

     3.  I have jurisdiction of this case;

     4.  The inspector who issued the subject citation
was a duly authorized representative of the Secretary
of Labor;

     5.  A true and correct copy of the subject cita-
tion was properly served upon the operator;

     6.  Payment of a penalty will not affect the
operator's ability to continue in business;

     7.  The operator demonstrated good faith abate-
ment;

     8.  The operator has a low history of prior viola-
tions for an operator its size;

     9.  The operator is medium in size;

     10. The power lines identified in the subject
citation were a three phase wire, 13,200 volts, and not
de-energized at the time in question.

                       Statement of Facts

White Rock Quarries, where the fatality occurred, is a
limestone quarry that has been in operation for
approximately 10 years (Tr. 56).  The limestone is in a
lake and respondent hires a blasting company to do the
shooting which is the first step in the extraction process
(Tr.56). When blasting is completed, respondent uses draglines
sitting on the laketo remove the material and then leaves it
on the bank to be carried to thebag plant (Tr. 56, 169).
Caterpillar or Euclid 85 ton trucks haul the material from the
lake to the aggregate or processing plant where the material
is broken down into various sizes and fed onto different belts
depending on the size desired (Tr. 57).  The trucks go up a
400 foot ramp which rises about 65 or 70 feet (Tr. 29, 59).
When they reach the top of the ramp, the trucks back into the
primary crusher where the truck beds are raised and the loads
deposited (Tr. 59-60).  The ramp is located next to the parts
storage yard (Tr. 27, 30-32, 180).

In early February 1995, Florida Power and Light, at the request
of respondent, installed a three phase power line with a voltage
of 13,200 volts (Tr. 21-22, 25-26, Stip. 10). The power was
needed to assemble an electric shovel (Tr. 22).  Florida Power
decided where the line would go and respondent agreed to the
location (Tr. 24-25).  The line ran along the toe of the slope
created by the ramp and along the edge of the parts storage area
(Tr. 27, 36-38).The weight of the evidence indicates that the power
line passed over an area immediately adjacent to that part of the
storage area where mantels were kept (Tr. 28, 35, 39-40, 139).
Mantels are liners used in the crushing process (Tr. 61).

Before the power lines were installed, the operator's employees
were told about their installation (Tr. 26-27, 231).  Several
meetings were held to discuss the lines (Tr. 26-27, 181). The
employees were told to be careful around the lines (Tr. 222, 230-231).
As a general matter, safety meetings were held weekly and safety
materials, including the Employment and Safety Policy Handbook, were
given to new employees (Tr. 51, 65, 217, Exhs. R-A, R-B). The corporate
safety director furnished foremen with a list of suggested topics for
the meetings (Tr. 27). Also, each new employee was placed with an
experienced employee for a minimum of 40 hours and if large
equipment was involved, the period could be longer. An employee would be
suspended for three days for his first safety violation and terminated
for his second offense (Tr. 197-198). Foremen were given the same training
as regular employees, but there was an increased emphasis on overall safety
supervision (Tr. 67, 179).  New foremen were put with experienced foremen
for two weeks and,in addition, the operations manager to whom all foreman
report, spent time with foreman trainees before they were turned loose
(Tr. 174-175). Foremen were told to make sure that areas were kept clean
and safe and that the employees worked safely in a safe environment
(Tr. 179).  There were quarterly safety meetings for foremen and
they were given safety materials to hand out at their meetings with
the employees under their supervision (Tr. 68).

     The decedent, James Knapp, was the day shift foreman in charge
of production at the operator's aggregate plant (Tr. 171).  He had
worked at the quarry for over seven years and had been a foreman for
six years (Tr. 69).  Prior to becoming a foreman, decedent had been
the aggregate plant operator from the time the plant was opened (Tr. 176-177).
When the plant was opening and later as foreman,decedent spent time
with the operations manager, learning and going over how the aggregate
plant should be run (Tr. 177-178). He was very familiar with everything
that occurred at the plant(Tr. 177-178). Because of his skills, abilities,
and attitude decedent was promoted to foreman (Tr. 177). As foreman, his
immediate supervisor was the operations manager (Tr. 171).  Decedent
supervised 12 to 14 people and oversaw the running of the plant, including
sizing the limestone (Tr. 69, 70, 172).  There were seven foremen, all of
whom were working foremen and had been cross trained (Tr. 45,70).  Decedent
had been cross trained in all operational matters, but his primary
responsibilities were at the aggregate end (Tr. 177).  As part of his
supervisory duties, decedent conducted weekly safety meetings (Tr. 94-96).

     James Jean was a boom truck operator who had worked for the operator for
approximately six years when the accident occurred (Tr. 183, 214).  First, he
had been a grounds man who cleaned things up and helped wherever needed, and
then a mechanic's helper (Tr. 215). He subsequently became a boom operator and
performed that job for about three to four years before the accident (Tr. 218).
He was not a supervisor (Tr. 72).  He had gone through standard job and safety
training for new employees (Tr. 183). Decedent had trained him in all the
positions he had occupied (Tr. 216). Initially, decedent spent 40 hours with the
boom operator, going with him all over the place and showing him everything until
he was ready to do his own work (Tr. 216).  Decedent also trained him in the safe
operation of the boom truck (Tr. 218).  Decedent had been the boom operator's
supervisor for five or six years and they worked together three or four
times a week (Tr. 102, 216, 218).

     Respondent's Employment and Safety Policy Handbook requires that when a spotter
is necessary, one designated person shall do all the signaling and use standard hand
signals (Exh. R-B, p. 37).  The handbook further directs that safe clearances from
electrical lines always be maintained and that allowances be made for boom sway,
rock or sag and for electrical line swaying.  Finally, the handbook provides that a
clearance of at least 10 feet horizontally and vertically must always be maintained
between any part of the crane, loadline or load and any electrical line carrying up
to 50,000 volts (Exh. R-B, pp. 38-39).  According to the manual for boom truck
operators, signals shall be as they are delineated in the manual's drawings.
Also, under the manual the signal person must be qualified by experience with the
operations, be knowledgeable of the standard signals, position himself
in clear view of the operator and have a clear view of the load, crane and
operating area (Exhs. P-15, R-I).

     On April 10, 1995, decedent and the boom operator were moving mantels from
the storage yard onto the boom truck (Tr. 43, 44). As already noted, the mantels
were in an area immediately adjacent to a point directly under the 13,200 volt
powerline (Tr. 28, 35, 39-40, 139). Decedent directed the operation (Tr. 44).
The boom operator swung the boom to pick up the first mantel without receiving hand
signals as required by the boom operator's manual and the Employment and Safety
Policy Handbook (Tr. 220, Exhs. R-B and R-I).  The boom operator knew he was
supposed to have a signalman (Tr. 225).  The foreman attached the mantel to the chain
at the end of the boom, walked over to the truck, waited there until the boom operator
lowered the mantel onto the bed of the truck, and then unhooked the mantel from the
chain (Tr. 220-221).

     After the first mantel was unhooked, decedent did not let go of the chain at
end of the boom (Tr. 220). When the boom operator swung the boom to get the second
mantel, decedent gave him hand signals with one hand while holding the chain with
the other (Tr. 44-45, 219).  The operator watched the signals and followed them
(Tr. 219).  The operator watched decedent and expected decedent to watch the wires
(Tr. 226, 227).  When lifting mantels onto the truck, decedent usually told the
operator to lower the boom, but in this instance he did not.  The boom was swung over
in an upright position and hit the high voltage line (Tr. 46-48, 120, 220, 225).
The operator saw decedent lying on the ground and then looked up to see the boom
touching the high voltage wire (Tr. 226).  Because decedent was holding the chain,
he was electrocuted when the boom touched the wire (Tr. 110, 163).

Conclusions

Section 56.12071, supra, requires that high voltage
power lines be deenergized or other precautionary measure
taken, when equipment must be moved or operated near
energized high voltage power lines and clearance is
less than 10 feet.  There is no dispute in this case
that the boom truck which was being operated in
connection with moving the mantels came closer than 10
feet to the high voltage power lines.  The boom truck
actually touched the wire.  There is also no
disagreement that the wires were
energized.  The issue presented is, therefore, whether
respondent took precautionary measures.

The inspector testified that precautions were not taken
because there should have been three people engaged in
moving the mantels, one to operate the crane, a second
to signal, and a third to attach the mantel (Tr. 120).
However, the inspector admitted that using three people
is not standard procedure in this type of task and he
agreed that there was nothing wrong with a two person
team (Tr. 125, 144).  In light of the inspector's
admissions, I conclude that the use of two persons to
move the mantels was permissible and did not constitute
a failure to take precautionary measures.

The inspector further stated that the failure to wear
protective gloves and boots constituted a failure to
take precautions (Tr. 120).  At one point he expressed
the belief that if the decedent had worn gloves, he
would not have been electrocuted (Tr. 124).  But he
also stated that wearing boots and gloves was not
standard procedure and that he did not know if gloves
would have protected decedent from 13,200 volts (Tr.
124-125, 141-142).  In view of the contradictions in
the inspector's testimony, I conclude that the absence
of protective boots and gloves was not a failure to
take precautionary measures.

Finally, the inspector said that different equipment should
have been used and that a boom truck smaller than the one in
this case is ordinarily used (Tr. 125-126).  However, he
also stated that trucks of this size are used and there is
no prohibition against them (Tr. 126).  The use of the boom
truck was therefore, not improper and cannot serve as the
basis for finding that precautionary measures were not
taken.

The inspector's reasons for finding a violation are however,
not determinative in this proceeding.  A hearing has now
been held at which documentary evidence was received and
testimony given.  The matter is before me for a de novo
decision based on all evidence presently of record.

Respondent has submitted evidence showing that weekly safety
meetings were held and that new employees, including new
supervisors, had a period of training during which they were
accompanied and trained by an experienced person.  I accept
this evidence.  I further accept evidence that safety
meetings were held before placement of the power lines to
advise company employees of the installation.  As already
set forth, the boom operator described
his training including the instructions he received from
decedent who was his foreman.  Finally, I accept the
statements of respondent's operations manager that decedent
was trained as an aggregate plant operator and as a foreman.

Turning to the events of the day the fatality occurred, the
conduct of the individuals involved must be examined to
determine whether there was a violation of the mandatory
standard.  The boom operator was watching decedent's
signals, as he had been taught and trained to do (Tr. 77-78,
99-100, 105, 182, 188, 223).  The boom operator looked to
the rear of the truck so that he was facing the signaler and
watching his signals (Tr. 77).  The signaler is the boom
operator's eyes (Tr. 182).  No blame attaches to the boom
operator with respect to the cited condition or practice and
I conclude that there was no failure on his part to take
precautionary measures.

With respect to decedent's conduct, the evidence demon-
strates that because he held the chain at the end of the
boom, he signaled the boom operator with only one hand (Tr.
85, 219-220, 221).  Holding the chain with one hand while
signaling with the other was improper (Tr. 81, 250-251).
And holding the chain was the reason decedent was
electrocuted when the boom hit the wire (Tr. 110, 163).
Testimony shows that although one man could signal and hook
the mantels, the two tasks were not intended to be performed
at the same time, but rather in sequence (Tr. 75, 81-82).
There was no reason for decedent to have held the chain
while he was signaling and no one knew why he did so (Tr.
79, 81, 151, 225).  Under normal operating procedures
signaling requires two hands (Tr. 85).  Drawings of standard
hand signals in the boom operator's manual show that either
two hands are required or that one hand is used to signal
while the other is at the signaler's side (Exh. R-I).  No
drawing shows a signaler performing another task while he is
signaling.  The Employment and Safety Policy Handbook which
respondent gives its employees, requires that safe distances
be maintained between power lines and equipment and that
there be at least a 10 foot clearance horizontally and
vertically between any part of a crane and any electrical
line (Exh. R-B, pp. 38-39).  Decedent failed to give signals
that would have maintained the requisite clearance.  Based
upon the foregoing, I conclude that decedent violated the
mandatory standard by failing to take precautionary measures
as required by the standard.  On the contrary, he engaged in
extremely dangerous behavior which resulted in the fatal
accident.

The Commission has long held that operators are liable
without regard to fault for violations of the Mine Act.
Fort Scott Fertilizer Inc., 17 FMSHRC 1112, 1115 (July
1995).  The Commission's decisions on this point have been
upheld by the courts.  Asarco, Inc., 8 FMSHRC 1632, 1634-36
(November 1986), aff'd, 868 F.2d 1195 (10th Cir. 1989);
Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir.
1982); Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-894
(5th Cir. 1982).  It is therefore, established that an
individual miner's misconduct in causing a violation is not
a defense against operator liability. Particularly
instructive for present purposes is the Commission's
determination that under the liability scheme of the Act, an
operator is liable for the violative conduct of its
employees, regardless of whether the operator itself was
without fault and notwithstanding the existence of
significant employee misconduct.  Ideal Cement Co.,
13 FMSHRC 1346, 1351 (September 1991).  So too, the Court of
Appeals for the Fifth Circuit has held that an operator is
liable for a violation even where significant employee
misconduct caused the violation and it is irrelevant whose
act precipitated the violation.  Allied Products, supra at
894.  The existence or degree of fault may be taken into
account in determining the amount of penalty when negligence
is evaluated.  Asarco, supra at 1636.  In light of the
foregoing, I conclude the operator is responsible and liable
for the violation.

The Act mandates that where there is a violation, a penalty
must be assessed.  Old Ben Coal Company, 7 FMSHRC 205, 208
(February 1985); Tazco, Inc., 3 FMSHRC 1895, 1897 (August
1981); Van Mulverhill Coal Company, Inc., 2 FMSHRC 283, 284
(February 1980); Island Creek Coal Company, 2 FMSHRC 279,
280 (February 1980).  As set forth above, section 110(i) of
the Act specifies six factors to be considered in setting
the amount of penalty.  Gravity is one of the factors.
Since the violation in this case resulted in a fatality, I
conclude that it represents the ultimate in gravity.
Moreover, the evidence establishes the four elements
necessary to sustain a significant and substantial finding.
Peabody Coal Company, 17 FMSHRC 508, 510-511 (April 1995);
Mathies Coal Company, 6 FMSHRC 1, 3-4 (January 1984);
National Gypsum Company, 3 FMSHRC 822, 825-826 (April 1981).
A violation existed which presented the discrete safety
hazard of electrocution.  In addition, there was a
reasonable likelihood the hazard would result in a
reasonably serious injury.  The fatality was not a fluke,
but a reasonably likely consequence of the foreman's
hazardous conduct.

The next factor to be considered is negligence.  As set
forth supra, decedent acted in a reckless and irresponsible
manner by engaging in conduct which, in light of his
training and experience, he must have known was very risky
and dangerous.  I conclude therefore, that decedent was
guilty of the highest degree of negligence and that his
conduct constituted unwarrantable failure as that term has
been defined by the Commission.  Emery Mining Corporation, 9
FMSHRC 1997, 2004 (December 1987); Youghiogheny and Ohio
Coal Company, 9 FMSHRC 2007, 2010 (December 1987).  The
issue is whether decedent's negligence is imputable to the
operator for purposes of fixing an appropriate penalty
amount.  Under Commission precedent negligence of a rank and
file miner cannot be imputed unless the operator fails to
discharge its responsibilities with respect to training,
supervision or discipline.  U.S. Coal, Inc., 17 FMSHRC 1684,
1686 (October 1995); Rochester & Pittsburgh Coal Company, 13
FMSHRC 189, 197 (February 1991); A. H. Smith Stone Company,
5 FMSHRC 13, 15 (January 1983); Southern Ohio Coal Company,
4 FMSHRC 1459, 1464 (August 1982).  However, negligence of a
supervisor is imputable to the operator unless the operator
can demonstrate that no other miners were put at risk by the
supervisor's conduct and that the operator took reasonable
steps to avoid the particular class of accident.  Nacco
Mining Co., 3 FMSHRC 848, 849-850 (April 1981).  This has
been referred to as the Nacco defense.  The Commission has
emphasized that an agent's unexpected misconduct may result
in a negligence finding where his lack of care exposed
others to risk or harm.  Id. at 851.  Even wilful and
intentional misconduct of employees may be imputed.
Rochester & Pittsburgh, supra at 197.

By his misconduct decedent not only put himself in peril.
He also placed the boom operator at risk.  Testimony from
the operator's corporate safety manager and the MSHA
inspector indicates that confronted with a situation where
his supervisor was electrocuted before his eyes, the boom
operator in the stress of the movement could have left the
truck and stepped onto the ground, thereby running the risk
of becoming an electrical ground  (Tr. 107, 165).  I find
that the boom operator was put at risk because under the
circumstances there was a distinct possibility he could have
stepped from the truck, making himself a ground.  I
recognize that in this instance the boom operator did not
leave the truck, but I do not believe the risk has to mature
for it to have been present.  Accordingly, on this basis I
conclude that the Nacco defense is not available to the
operator in this case.

In addition, the corporate safety manager believed that
despite outriggers which served as grounds, the boom
operator would have been in danger even on the truck because
electricity might not always go to ground (Tr. 107-109).
The inspector also believed the boom operator was at risk
because high power jumps (Tr. 163).  In light of this
evidence, I again find that the boom truck operator was put
at risk by decedent's actions, precluding a Nacco defense.

The Nacco defense also is not applicable where the operator
does not take reasonable steps to avert the particular type
of accident that occurred.  Evidence regarding the
operator's orientation and training of new employees as well
as its subsequent safety meetings has been set forth and
accepted.  However, the evidence also shows that in the area
of the aggregate plant respondent was not conducting a safe
operation.  Decedent's unsafe behavior was not an aberration
or isolated instance.  The boom truck operator testified
that decedent often held the chain while signaling (Tr.
221).  Sometimes decedent held the chain and sometimes he
did not (Tr. 225).  Other signalers also held the chain
while directing the boom operator (Tr. 228-229).  The
corporate safety director was not aware that signalers held
the chain while signaling (Tr. 249).  He was not sure
whether the operator's policy regarding holding the chain
was spelled out, but he believed that the general practice
was not to hold the chain (Tr. 249).  The operations
manager, who was decedent's supervisor and who was on site,
did not know how decedent and other foreman performed their
duties (Tr. 249, 252).  Thus, the record demonstrates that
those in management above the foremen had no idea what was
actually happening on the ground.  I conclude that the
operator did not take reasonable steps to prevent the type
of accident that occurred because holding the chain while
signaling was an ongoing practice.  The operator is obliged
not only to train new employees and hold safety meetings,
but also to monitor the activities of miners and foremen to
insure that the safety procedures they have been told about
are followed.  I conclude that on this basis also the Nacco
defense is not available to respondent.  In light of the
foregoing, decedent's extremely negligent conduct which
constituted unwarrantable failure is imputable to the
operator for purposes of determining an appropriate penalty
amount.

Even more importantly, I conclude that apart from imputation
of negligence, the operator itself was highly negligent
because it failed to keep itself apprised of how its quarry
was actually being run.  As set forth above, the operator
did not provide on the ground oversight of the actions of
its miners and first level supervisors.  It is not
sufficient for the operator to initially train its foremen
and have them conduct safety meetings, but then leave them
to their own devices on site when the work is being
performed.  The operator's deficient and aggravated conduct
constituted a very high degree of negligence and
unwarrantable failure.

The stipulations of the parties which I have accepted,
address the other criteria specified in section 110(i),
supra.  I particularly note the operator's low history of
prior violations.  After considering all the 110(i) factors,
I determine that a penalty of $6,000 is appropriate.

The excellent post-hearing briefs filed by the parties have
been reviewed and were most helpful.  To the extent the
briefs are inconsistent with this decision, they are
rejected.

                        ORDER

It is ORDERED that the finding of a violation for Citation
No. 4088141 be AFFIRMED.

It is further ORDERED that the significant and substantial
finding for Citation No. 4088141 be AFFIRMED.

It is further ORDERED that the high negligence finding for
Citation No. 4088141 be AFFIRMED.

It is further ORDERED that the unwarrantable failure finding
for Citation No. 4088141 be AFFIRMED.

It is further ORDERED that a penalty of $6,000 be ASSESSED
and that the operator PAY $6,000 within 30 days of the date
of this decision.

                         Paul Merlin
                         Chief Administrative Law Judge

Distribution: (Certified Mail)

Karen E. Mock, Esq., Office of the Solicitor, U.S. Department of
Labor, 1371 Peachtree St., N.W., Room 339, Atlanta, GA   30367

Roger L. Sabo, Esq., Schottenstein, Zox & Dunn, Huntington
Center, 41 South High Street, Columbus, OH 43215

/gl