<DOC>
[DOCID: f:se98156c.wais]

 
MARTIN MARIETTA AGGREGATES
May 31, 2000
SE 98-156-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR
                    
                    WASHINGTON, D.C.  20006
                         
                         
                         May 31, 2000

SECRETARY OF LABOR,            :
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA)        :
                               :
            v.                 :  Docket No. SE 98-156-M
                               :
MARTIN MARIETTA AGGREGATES     :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        Commissioners

                            DECISION

BY: Riley, Verheggen, and Beatty, Commissioners

     In this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  801 et seq.
(1994) ("Mine Act" or "Act"), former Chief Administrative Law
Judge Paul Merlin[1] determined that Martin Marietta Aggregates
("MMA") committed a significant and substantial ("S&S") violation
of 30 C.F.R.  56.14207.[2]  21 FMSHRC 76, 85 (Jan. 1999) (ALJ).
He found that, although the violation was caused by a miner's
high degree of negligence, the miner's negligence was not
imputable to MMA for penalty assessment and unwarrantable failure
purposes, because the miner was not an agent of MMA.  Id. at 85-
88.  The Commission granted the Secretary of Labor's petition for
discretionary review challenging the judge's finding that the
miner's negligence was not imputable to MMA.  The United Steel
Workers of America ("USWA") and the National Mining Association
("NMA") sought and were granted amicus status in this proceeding.
For the following reasons, we affirm the judge's decision.


                               I.

                Factual and Procedural Background

     MMA operates the Camak Quarry, a stone quarry in Camak,
Georgia.  At the loadout point in the quarry, railcars were
loaded with crushed stone and gravity-dropped to a storage
area before being weighed on scales.  After the cars were
dropped, a loader was routinely used to push them forward so they
would attach to a locomotive parked a few feet in front of the
scales.  The cars were weighed on the scales and then the
locomotive moved them to a dispatch point from where they were
transported from the mine.  On October 20, 1997, the decedent,
Jut Anderson, was the leadman of the loadout crew.  At the start
of the shift, plant foreman Donny Reese gave Anderson his work
assignment for the day, which included cleaning the scales with a
shovel.  Later in the morning, Anderson told foreman Reese and
the loadout crew that he was going to clean the scales.  He did
not, however, tell Robert Hobbs, the loader operator.  On the
shift in question, Billy Moss, a member of the loadout crew,
parked the locomotive 18 inches to 3 feet before the scales and
set the air brake.  Subsequently, ten railcars were gravity-
dropped and attached to the locomotive.  Anderson asked Jason
Jones, a backhoe operator, to assist him in cleaning the scales
by shoveling debris off the scales and later by digging a ditch
to drain water under the scales.  Anderson used compressed air
from the locomotive to clean the scales.  Hoping to increase the
air pressure from the locomotive, he asked Jones to release the
air brake on the locomotive and Jones did so.  21 FMSHRC at 78-
80; Tr. 246, 293.

     Later, Anderson was in front of the locomotive, cleaning the
scales, and Jones was in his backhoe.  At that time, four cars
previously gravity-dropped from the loadout area had come to a
stop and were blocking an intersection.  Unaware that Anderson
was on the track cleaning the scales, Hobbs used a loader to push
the four cars out of the intersection and into the ten cars that
were attached to the locomotive.  The impact of the four
additional cars caused the first ten cars and the attached
locomotive to move forward.  The locomotive hit and killed
Anderson.  21 FMSHRC at 80.

     Following an investigation of the accident, the Department
of Labor's Mine Safety and Health Administration ("MSHA") issued
an order under section 104(d)(1) of the Mine Act, 30 U.S.C. 
814(d)(1), alleging a violation of section 56.14207.  The order
alleged that the violation was S&S, resulted from MMA's
unwarrantable failure, and involved a high level of negligence by
the operator.  MSHA proposed a civil penalty of $45,000.  Pet.
for Assessment of Civil Penalty at 2.  At trial, MMA disputed the
amount of the proposed penalty and the Secretary's imputation of
Anderson's negligence to it for penalty assessment and
unwarrantable failure purposes.  MMA Post-hearing Br. at 2-3, 27-
31.

     The judge found an S&S violation of section 56.14207.  21
FMSHRC at 84-85.  He held that Anderson displayed extreme
negligence in instructing Jones to release the locomotive's brake
and in failing to notify the loader operator that he was cleaning
the scales.  Id. at 85.  However, in considering whether to
impute Anderson's negligence to the operator for purposes of
deciding whether the violation was caused by an unwarrantable
failure and for assessment of the appropriate penalty, the judge
determined that, although Anderson assigned specific tasks to
other miners, he was not MMA's agent.  Id. at 85-88.
Accordingly, the judge determined that Anderson's negligence was
not imputable to MMA, vacated the Secretary's unwarrantable
failure allegation, and declined to find that the violation
resulted from MMA's high negligence.  Id. at 88-89.  The judge
assessed a penalty of $2,000.  Id. at 89.

                               II.

                           Disposition

     The Secretary contends the judge erred in finding that
Anderson's negligence was not imputable to MMA for purposes of an
unwarrantable failure determination and penalty assessment.  S.
Br. at 7.  She argues that the judge erred in failing to accept
her interpretation that, under the plain language of section 3(e)
of the Mine Act,[3] 30 U.S.C.  802(e), the term "agent" includes
a miner such as Anderson who has the authority to assign tasks to
other miners and the responsibility of keeping an area of the
mine safe.  S. Br. at 9-16; S. Reply Br. at 13.  She also argues
that, even if the meaning of section 3(e) is ambiguous, the judge
erred by not deferring to her interpretation of the term "agent."
S. Br. at 13 n.7; S. Reply Br. at 13-15.  The Secretary contends
that, under both existing case law and common law principles of
agency, the judge erred in concluding that Anderson was not an
agent.  S. Br. at 16-22.

     MMA responds that substantial evidence supports the judge's
finding that Anderson was not an agent and that his negligence
should not be imputed to MMA.  MMA Br. at 7-13.  It argues that,
even if Anderson was an agent, his negligence should not be
imputed to MMA because his negligence did not endanger any other
persons.  Id. at 14-16.  The operator contends that the
Secretary's interpretation of section 110(i), 30 U.S.C.  820(i),
is not entitled to deference because the Commission has authority
under the Mine Act to impose penalties under that provision.  Id.
at 17-22.  It also argues that imputing Anderson's negligence to
it for penalty assessment and unwarrantable failure purposes is
contrary to common law principles of agency.  Id. at 23-24.

     Amici USWA and NSA both contend that the judge correctly
found that Anderson was not an agent of the operator.  USWA Br.
at 2, 5-6; NSA Br. at 8-10.  USWA argues that the judge erred in
not finding high negligence and unwarrantable failure by MMA
because the operator failed to appropriately train and supervise
the rank-and-file miners in the loadout area.  USWA Br. at 6-7.
NSA contends that the Secretary is not entitled to deference
concerning her interpretation of section 110(i) because the Mine
Act specifically authorizes the Commission to assess penalties
under that provision.  NSA Br. at 13-16.  It further argues that
imputing Anderson's negligence to MMA would discourage operators
from seeking the highest safety standards.  Id. at 11.

     Under Commission precedent, the negligence of a rank-and-
file miner is not imputable to the operator for the purposes of
penalty assessment or unwarrantable failure.[4]  Whayne Supply
Co., 19 FMSHRC 447, 451, 453 (Mar. 1997); Fort Scott Fertilizer-
Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Southern Ohio
Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982) ("SOCCO").  However,
it is well established that the negligence of an operator's agent
is imputable to the operator for penalty assessment and
unwarrantable failure purposes.  Whayne, 19 FMSHRC at 451;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-97 (Feb.
1991) ("R&P"); SOCCO, 4 FMSHRC at 1463-64.  The main issue in
this case is whether substantial evidence[5] supports the judge's
finding that Anderson was not an agent of MMA, and, as a
consequence, that his negligence was not imputable to the
operator for unwarrantable failure and penalty assessment
purposes.[6]

     A.   Deference

     We note that the Secretary's argument regarding deference is
not properly before the Commission.[7]  Section 113(d)(2)(A)(iii)
of the Mine Act provides that "[e]xcept for good cause shown, no
assignment of error by any party shall rely on any question of
fact or law upon which the administrative law judge had not been
afforded an opportunity to pass." 30 U.S.C.  823(d)(2)(A)(iii). 
The Secretary supported her argument before the judge that 
Anderson was an agent by quoting section 3(e) and citing to 
Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1560 (Sept. 1996),
which itself employs common law principles of agency.  S. 
Post-hearing Br. at 28-29.  However, she made no reference below 
to either the plain meaning or ambiguity of section 3(e), did 
not interpret that provision, and did not request the judge to 
defer to any interpretation of that provision.  Accordingly, we 
need not reach the Secretary's contention regarding deference. 
See Beech Fork Processing, Inc., 14 FMSHRC 1316, 1320-21 (Aug. 
1992) (declining to consider theory raised for the first time on 
review).  Even if the deference argument had been presented below, 
we would reject it.  The fundamental premise of the Secretary's 
argument is that the inquiry into Anderson's status as an agent 
is determined solely by reference to section 3(e).  This premise 
is inconsistent with Commission case law.

     In determining whether a miner is an agent of an operator
for purposes of imputing negligence to the operator, the
Commission has developed a multi-factor test.  In formulating the
factors, the Commission has in some cases considered the
statutory definition of agent contained in section 3(e).  REB
Enters., Inc., 20 FMSHRC 203, 211 n.11 (Mar. 1998); Ambrosia, 18
FMSHRC at 1560; U.S. Coal, Inc., 17 FMSHRC 1684, 1686 n.3 (Oct.
1995).  It has also been guided in some cases by common law
principles of agency.  See R&P, 13 FMSHRC at 195 ("The Commission
has previously employed both the Act's definition and common law
principles in resolving agency problems."); Ambrosia, 18 FMSHRC
at 1561 n.12 (citing 3 Am. Jur. 2d Agency  78-79 (1986) for the
proposition that "a principal is liable for the acts of an agent
that are apparently within the agent's authority and which the
principal permits the agent to exercise"); see also Pocahontas
Fuel Co., 8 IBMA 136, 147 (Sept. 1977), aff'd, 590 F.2d 95 (4th
Cir. 1979) (Coal Act case) (adopting the common law principle
that the acts or knowledge of an agent are attributable to the
principal).  Thus, the Commission's multi-factor test is not
limited to the terms of section 3(e).  Moreover, the core
concepts of imputation of an agent's negligence to the operator
for purposes of penalty assessment and unwarrantable failure are
Commission-fashioned doctrines that do not spring solely from
specific statutory language.  Whayne, 19 FMSHRC at 451; R&P, 13
FMSHRC at 194-97; SOCCO, 4 FMSHRC at 1463-64; see Nacco Mining
Co., 3 FMSHRC 848, 850 (Apr. 1981).

     The Secretary's request for deference here is, at bottom, a
request that the Commission defer to the Secretary's application
of the Commission's test for agency to the record facts.  This is
the essence of the adjudicative function and is therefore the
Commission's province, not the Secretary's.  We therefore find
that the judge correctly based his analysis of Anderson's status
as an agent on the Commission's multi-factor test as elaborated
in Commission precedent.

     B.   Substantial Evidence Supports the Judge's Finding that
Anderson Was Not an Agent of MMA

     When deciding whether a miner is an agent of an operator,
the Commission has focused on the miner's function and not his
job title.  REB Enters., 20 FMSHRC at 211; Ambrosia, 18 FMSHRC at
1560.  It has examined whether the miner's function involved
responsibilities normally delegated to management personnel and
whether his responsibilities were crucial to the mine's
operation.  REB Enters., 20 FMSHRC at 211; Ambrosia, 18 FMSHRC at
1560; U.S. Coal, 17 FMSHRC at 1688.  It has also considered
whether the miner exercised managerial responsibilities at the
time of his negligent conduct.  R&P, 13 FMSHRC at 194.

     Commission cases that have found the lack of an agency
relationship include U.S. Coal, 17 FMSHRC at 1688 (electrician
was not an agent even though he was authorized to tell miners to
stop working on dangerous equipment and to remove such machinery
from service); Whayne, 19 FMSHRC at 451-52 (experienced repairman
who needed little supervision and helped less experienced
employees was not a supervisor); and REB Enters., 20 FMSHRC at
211-12 (leadman on highwall was not an agent because he did not
have authority to hire and fire employees, did not assign
equipment to employees, and was not given any instructions
regarding discipline of employees).

     In deciding agency questions, the Commission has also
examined precedent on the distinctions between supervisors and
employees under the National Labor Relations Act ("NLRA"), 29
U.S.C.  141 et seq. (1994).  Whayne, 19 FMSHRC at 451.  The
National Labor Relations Board ("NLRB") has consistently found
that the authority to assign tasks is not by itself sufficient to
find supervisory status.  See Micro Pacific Dev. Inc. v. NLRB,
178 F.3d 1325, 1333 (D.C. Cir. 1999) (holding that leadmen
waiters and bartenders were not supervisors under NLRA even
though they made assignment and scheduling decisions); Highland
Superstores, Inc. v. NLRB, 927 F.2d 918, 921-23 (6th Cir. 1991)
(holding that leadmen warehouse workers were not supervisors
under NLRA even though they assigned work to other employees
every day).  In NLRB v. Lauren Mfg. Co., 712 F.2d 245, 248 (6th
Cir. 1983), the court held that "the mere performance of routine
tasks or the giving of instructions to others is not sufficient
to afford an individual supervisory status."

     The Secretary relies on NLRB v. Ajax Tool Works, Inc., 713
F.2d 1307 (7th Cir. 1983), for the proposition that Anderson was
an agent because he had the authority to assign tasks.  S. Br. at
11 & n.4.  Ajax is readily distinguishable.  The employee in Ajax
had the authority to assign work without management approval,
maintain discipline, send employees home if they were drunk or
did not work, and make recommendations to discharge employees.
713 F.2d at 1312.  Anderson's narrow authority to assign specific
tasks under close management supervision in this case does not
constitute the level of supervisory responsibility involved in
Ajax.  We also disagree with the Secretary (S. Br. at 16) that
under the theory of NLRB v. Thermon Heat Tracing Servs., 143 F.3d
181 (5th Cir. 1998), Anderson was an agent because he was
responsible for the safety of part of the mine.  The court in
Thermon Heat stated that the employee was an agent because "he
was the safety professional for [the company] and that his duty
was to assist in promoting, providing, and maintaining a safe
work environment at the company."  143 F.3d at 186 (internal
quotations omitted).  The employee at issue in that case was the
company's safety director.  Id. at 184.  As such, he was
responsible for the safety of at least 100 employees, and had
authority to issue safety rules for the company.  Id.  Anderson's
narrow work duties in the loadout area are not comparable to the
far-reaching responsibilities of the company's safety director in
Thermon Heat.

     The judge found that Anderson assigned specific tasks to
miners in the loadout area and "had the authority to tell them
how he wanted the job done and to stop them if he did not like
what they were doing."[8]  21 FMSHRC at 87.  However, the judge
concluded that, although Anderson exercised "a certain degree of
control over the loadout area and the miners who worked there,"
his control was "tightly circumscribed."[9]  Id. at 88.  He found
that Anderson was closely supervised by foreman Reese and it was
Reese who decided what daily jobs were to be completed.  Id. at
87-88.  The judge found that Anderson could not hire, fire,
evaluate, or discipline other miners and that Anderson could not
take any action to abate citations, or change a miner's job or
the equipment on the job without Reese's permission.  Id.  The
judge also found that Anderson was paid at an hourly rate and did
not hold himself out in any capacity to be an agent of MMA.  Id.
Similarly, the Commission in REB, 20 FMSHRC at 211-12, found that
a leadman was not an agent because, like Anderson, he did not
have the authority to hire, fire, or discipline other miners, and
could not independently change other miners' jobs or assign
equipment.

     We conclude that the facts upon which the judge relied
constitute substantial evidence in support of his conclusion that
Anderson was not an agent of MMA.  Under the substantial evidence
test, the Commission may not "substitute a competing view of the
facts for the view [an] ALJ reasonably reached."  Donovan ex rel.
Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983);
accord Wellmore Coal Corp. v. FMSHRC, No. VA-95-9-D, 1997 WL
794132, at *3 (4th Cir. Dec. 30, 1997).  Under the deferential
substantial evidence standard, our task is a narrow one.  "[E]ven
if we would have weighed the evidence differently," our sole
responsibility is to "determine whether a . . . reasonable
factfinder could have reached the conclusions actually reached by
. . . the ALJ."  Secretary of Labor v. Keystone Coal Mining
Corp., 151 F.3d 1096, 1104 (D.C. Cir. 1998) (internal quotations
omitted); see also Eastern Associated Coal Corp., 13 FMSHRC 178,
185 (Feb. 1991) ("The Commission's task is not a de novo
reweighing of somewhat conflicting evidence but a determination
of whether there is substantial evidence in the record to support
the judge's conclusions.").[10]  We conclude that the judge's
finding that Anderson was not an agent was reasonable given
Anderson's very limited responsibilities to assign work, and his
close supervision by management.[11]

     We disagree with the agency standard proposed by the dissent
under which a miner would be an agent if he or she had the
"authority to tell . . . other miners what to do."  Slip op. at
17.  This overly-broad standard could potentially reclassify the
vast majority of rank-and-file miners as agents - every time an
experienced miner tells a less experienced miner "what to do" on
the job, the experienced miner would be acting as the operator's
agent.  In our view, however, a standard that would automatically
transform a rank-and-file miner into an agent merely by providing
guidance to co-workers is ill-advised.  Indeed, the real world
ramifications of such an approach are alarming.  A miner learns
the intrinsic nature of the environment in which he or she works
primarily through "on-the-job" training with guidance and support
provided by fellow rank-and-file miners.  Yet if such guidance
and support were to be considered proof of agency, many
experienced rank-and-file miners would likely be reluctant to
instruct less experienced miners on how to safely perform their
jobs.  Moreover, as an agent, an experienced rank-and-file miner
could be individually exposed to the "civil penalties, fines, and
imprisonment" imposed on agents under section 110(c) for
violations of the Mine Act.  See 30 U.S.C.  820(c).  The very
threat of exposure under section 110(c) would likely result in an
erosion of the current apprenticeship environment, and replace it
with an "every man for himself" atmosphere that would clearly be
detrimental to the health and safety of our nation's miners.

     Our dissenting colleague's claim that our decision takes "a
giant step" toward establishing an overly restrictive agency
standard which may "insulat[e] management from negligence
findings" (slip op. at 16) is overstated and ignores that the
question of Anderson's agency is quite close - and depends on the
particular facts and circumstances of this case.  Indeed, any
case where agency is at issue will turn on its facts.  Any
operator that attempts to insulate itself from negligence
findings by providing its miners with substantial supervisory
responsibilities without calling them supervisors will run the
risk of crossing the line at issue in this case and rendering
such miners agents.

     We do not mean to suggest that the violation was anything
other than extremely serious.  Nor do we hold that the judge's
reduction of the penalty from $45,000 to $2,000, based on his
finding that Anderson's negligence could not be imputed to MMA,
was required by this record.  Judges have the discretion to
accord different weight to the six statutory penalty criteria for
assessing civil penalties based on the facts and circumstances of
the case.[12]  Thunder Basin Coal Co., 19 FMSHRC 1495, 1503
(Sept. 1997).  Here, the gravity of the violation, one of the six
criteria, was very high.  However, the question whether the judge
abused his discretion by reducing the penalty by over 95% has not
been presented to the Commission on review, and we therefore do
not reach the issue.


**FOOTNOTES**

     [1]  Judge Merlin retired on December 31, 1999.

     [2]  Section 56.14207 provides in pertinent part that
"[m]obile equipment shall not be left unattended unless the
controls are placed in the park position and the parking brake,
if provided, is set."

     [3]  Section 3(e) provides that an agent is "any person
charged with responsibility for the operation of all or a part of
a coal or other mine or the supervision of the miners in a coal
or other mine."  30 U.S.C.  802(e).

     [4]  The unwarrantable failure terminology is taken from
section 104(d)(1) of the Act, 30 U.S.C.  814(d)(1), which
establishes more severe sanctions for any violation that is
caused by "an unwarrantable failure of [an] operator to comply
with . . . mandatory health or safety standards."

     [5]  When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of the Mine
Act to apply the substantial evidence test.  30 U.S.C.
 823(d)(2)(A)(ii)(I).  "Substantial evidence" means "`such
relevant evidence as a reasonable mind might accept as adequate
to support [the judge's] conclusion.'"  Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [6]  Although an operator is not liable for unwarrantable
failure based on the aggravated conduct of a rank-and-file miner,
its "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."
Whayne, 19 FMSHRC at 452-53 (quoting SOCCO, 4 FMSHRC at 1464)
(emphasis in original).  The Secretary has not argued on appeal
that MMA's supervision, training, or discipline of Anderson was
inadequate.

     [7]  The Secretary's formulation of her "plain meaning"
argument is contradictory.  If the statute is plain, then no
"interpretation" of the Secretary is required and, hence, no
deference is due.  Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984).

     [8]  We disagree with the Secretary's argument that
Anderson was responsible for safety in the loadout area.  S. Br.
at 2, 12.  Although the judge found that Anderson conducted
safety meetings with the loadout crew (21 FMSHRC at 86), he made
no findings regarding Anderson's responsibilities for the safety
of the loadout area and we do not think the record compels a
conclusion that he had such responsibilities.  The Secretary
bases her claim on the following colloquy at trial between her
counsel and backhoe operator Jones: Q. "Anderson was the man you
relied on to make sure the work area was safe?"  A. "Right."  Tr.
249-50.  We agree with MMA (MMA Br. at 9 n.4) that this exchange
reveals little about what Anderson's safety responsibilities were
in the loadout area.

     [9]  The Secretary claims that Anderson was an agent in
part because when Moss, an hourly worker in the loadout area, was
asked if Anderson was a supervisor, he answered "Yes."  S. Br. at
2; Tr. 108.  However, we do not think that this evidence compels
a finding that Anderson was an agent.  As MMA points out (MMA Br.
at 9 n.4), Moss's answer is of limited value because the record
does not explain what Moss understood the term "supervisor" to
mean.  In addition, the Commission has focused on a miner's
function and not his job title when determining agency status.
REB Enters., 20 FMSHRC at 211; Ambrosia, 18 FMSHRC at 1560.

     [10]  Rather than applying the substantial evidence test to
the judge's findings, the dissent reweighs the evidence de novo,
concludes that Anderson was an agent, and advocates reversing the
judge's agency findings.  But even if the record evidence could
support a finding that Anderson was an agent, the Commission
would not be permitted to overturn the judge's conclusion to the
contrary, which in this case is supported by the record.

     [11]  Commissioner Riley notes that USWA takes specific
exception to the Secretary's "misguided perception of the term
`agent' and its application to rank-and-file miners."  USWA Br.
at 5-6.

     [12]  The six penalty criteria set forth in section 110(i)
include:

     [1] the operator's history of previous violations, [2] the
     appropriateness of such penalty to the size of the business
     of the operator charged, [3] whether the operator was
     negligent, [4] the effect on the operator's ability to con-
     tinue in business, [5] the gravity of the violation, and
     [6] the demonstrated good faith of the person charged
     in attempting to achieve rapid compliance after notifi-
     cation of a violation.

30 U.S.C.  820(i).


                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's finding
that Anderson's negligence was not imputable to MMA for
unwarrantable failure and penalty assessment purposes because he
was not an agent of MMA.


                              James C. Riley, Commissioner
                              
                              Theodore F. Verheggen, Commissioner
                              
                              Robert H. Beatty, Jr., Commissioner


Commissioner Marks, concurring:

     While I concur in the result of this case, based on the
limited issue it presents and our law on that issue, I write
separately to delineate some differences with the majority's
approach to this case.

     Like the judge, I believe that this case, when viewed in
light of Commission precedent, is a close one with respect to the
question of whether decedent Anderson was an "agent" of MMA for
purposes of imputing his negligence to MMA for unwarrantability
and penalty assessment purposes.  See 21 FMSHRC at 87.  I am
concerned that our decision will be interpreted by operators as a
license to delegate more and more supervisory responsibilities to
rank-and-file miners in order to avoid the negligence of those
miners being imputed to the operators.  As the majority opinion
makes clear, we presently look at a number of factors in deciding
this issue.  Slip op. at 5-6.  Operators will no doubt be tempted
to get "as close to the line" as possible, and may assign as many
supervisory responsibilities as they can to rank-and-file miners,
without crossing the now very complex line between rank-and-file
miner and agent.  The present multi-factor analysis we use to
determine whether a miner is an "agent" of the operator may
increase that temptation.  For that reason, I would be very
interested in hearing from parties in future cases regarding
whether the Commission should abandon its policy of not imputing
to operators the negligence of rank-and-file miners for purposes
of unwarrantable failure and penalty determinations.[1]

     Eliminating this Commission doctrine would greatly simplify
some of the unwarrantable failure issues that come before us.
For instance, in the present case the majority, incorrectly in my
opinion, discounts the importance of Anderson's safety
responsibilities in the loadout area, because of the judge's
failure to make a finding on the degree of Anderson's
responsibilities.  See slip op. at 7 n.8.[2]  The judge's failure
to make such a finding is understandable, given that the
complexity of the Commission's present multi-factor analysis
requires that a number of fact-intensive findings be made in a
case such as this.


     In addition, like amicus curiae United Steelworkers of
America ("USWA"), I am struck by evidence in this case that the
operator failed to appropriately train and supervise rank-and-
file miners with respect to use of the locomotive air brake.  See
USWA Br. at 6-7.  Anderson's use of compressed air from the
locomotive air brake to clean the scales was not, as operator MMA
would have the Commission believe, "unforeseeable," "contrary to
all reasonable expectation," or "wholly aberrant and
unpredictable."  MMA Resp. to USWA Br. at 9, 10.  As Anderson's
immediate supervisor, plant foreman Reese, acknowledged,
compressed air had been used on a prior occasion to clean the
scales (Tr. 294-95), and there was additional testimony that air
from a locomotive had been so used (Tr. 120), so the air brake's
utility for cleaning the scales was not unknown in the loadout
area.  Moreover, there was testimony that Anderson had on a prior
occasion attempted to use the air compressor on the locomotive
for something other than its ususal purpose.  Tr. 123.

     Despite this history, there is no evidence that the
operator's training or supervision was directed at warning miners
of the danger of the particular action that led to Anderson's
death - using air pressure from a locomotive to clean the scales
and failing to inform everybody that he would be cleaning the
scales.  There is also no evidence that, despite this history,
Reese was vigilant in his supervision of Anderson to prevent him
from engaging in such a risky practice, even though he knew that
Anderson was going to be cleaning the scales on the day of the
accident.  Tr. 293.  Indeed, the judge implicitly criticized
Reese's supervision of the loadout area on the day of the
accident, remarking that it was strange for Reese to neither know
of or be curious about the important question of whether the
brakes on the rail cars had been set.  21 FMSHRC at 82.  In light
of the foregoing, I must take issue with the judge's conclusion
that operator fulfilled its duties with respect to training and
supervising Anderson.  See id. at 86.  However, because the
Secretary did not pursue the issue of the extent of the
operator's negligence in training and supervising Anderson, we
cannot consider it in determining unwarrantable failure or the
degree of the operator's negligence.


**FOOTNOTES**

     [1]  As the majority points out this is a Commission-
created doctrine (slip op. at 5), so there is no potential in our
revisiting this issue that we would disturb the distinction
between rank-and-file miners and agents for purposes of
individual liability, which is governed by section 110(c) of the
Mine Act and therefore cannot be altered by Commission decision.
See 30 U.S.C.  820(c).

     [2]  The majority holds that the record does not compel the
conclusion that Anderson was responsible for safety in the
loadout area.  Slip op. at 7 n.8.  The judge found that Anderson
conducted the safety meetings for the miners in the loadout area
(21 FMSHRC at 86), and backhoe operator Jones testified that he
relied upon Anderson to make sure the loadout area was safe.  Tr.
249-50.  I believe this is more than enough evidence to establish
Anderson's responsibility for safety.


     Lastly, I must express my concern regarding the penalty that
was assessed by the judge in this case.  Reducing it from the
$45,000 proposed by the Secretary to a mere $2,000 is simply not
justified by the fact that Anderson's negligence cannot under
Commission case law be imputed to MMA.  Moreover, even if were,
the judge's reduction in this case contravenes a number of
Commission instructions regarding penalty assessments.  Even
though we have held that a judge's assessment may not
"substantially diverge" from the penalty proposed by the
Secretary without sufficient explanation (Unique Electric, 20
FMSHRC 1119, 1123 n.4 (Oct. 1998); Sellersburg Stone Co., 5
FMSHRC 287, 293 (Mar. 1983)), the judge provided no such
explanation.  See 21 FMSHRC at 88.  In addition, in Thunder Basin
Coal Co., 19 FMSHRC 1495, 1504-05 (Sept. 1997), we pointed out
the inequity of a judge's 95% reduction in the penalty the
Secretary had assessed against a large operator, because of our
common-sense concern that small penalties are insufficient to get
the attention of a large operator.  See Coal Employment Project
v. Dole, 889 F.2d 1127, 1135 (D.C. Cir. 1989).  Yet incredibly, a
similar reduction occurred in this case against a large
conglomerate.  The threat of a $2000 penalty is hardly sufficient
to get the attention of the likes of MMA.

                              Marc Lincoln Marks, Commissioner


Chairman Jordan, dissenting:

     I disagree with my colleagues' conclusion.  Substantial
evidence does not support the judge's finding that Jut Anderson
was not an agent of Martin Marietta Aggregates.  It is clear from
this record that Anderson had been delegated authority over the
employees in the loadout area.  In light of this fact, the record
compels the conclusion that Anderson must be considered an agent
of the operator and the Secretary could appropriately rely on
Anderson's negligence in determining that an unwarrantable
failure violation occurred.  Likewise, it is appropriate for the
Commission to consider Anderson's negligence in determining a
penalty in this case.

     The detailed and unequivocal testimony of both rank-and-file
and management employees demonstrates that Anderson was
responsible for work assignments and miner safety in the loadout
area.  Tr. 108, 302-04.  Robert Hobbs, the loader operator,
stated that he took instructions from Anderson, who assigned work
to him.  Tr. 139.  Foreman Earl D. Reese testified "it's up to
him [Anderson] to direct what individuals he wants each task to
be done [sic]."  Tr. 303.  Reese also stated that Anderson could
stop a worker and redirect him if he did not like his
performance.  Tr. 303-04.  Although Anderson did not conduct
performance evaluations, Reese received information from him
regarding the performance of members of his crew.[1]  Tr. 281.
Reese further testified that Anderson's leadman job required him
to constantly inspect the area and see that crew members
understood how to perform their jobs safely.  Tr. 282.  Anderson
held the weekly safety meetings with the crew and it was Anderson
on whom the miners on the loadout crew depended to keep the
loadout area safe.  Tr. 249-50.

     It would appear from the record that Anderson also viewed
himself as being in charge of the loadout area.  About a month or
two prior to the accident, Anderson told Billy Moss, a member of
his crew, to hook a valve up so that he could use the air
compressor on the locomotive for purposes other than a braking
system.  Tr. 123.  According to Moss, there was no indication
that Anderson felt it necessary to consult with superiors before
ordering that adjustment.  Tr. 123.  On the day of the accident,
Anderson again ordered the air pressure from the air compressor
to be diverted from the locomotive.  Tr. 248.  Ultimately, it was
that order to redirect the air pressure and release the brake
which led to the tragic accident underlying this case.  Tr. 49,
248.

     The description of Anderson recounted by the witnesses does
not fit the profile of a rank-and-file miner.  The record
evidence shows that Anderson was in control of the activities in
the loadout area - telling workers what to do, correcting their
mistakes, and adapting equipment.  Moreover, the workers on the
crew perceived him as being in charge.  Under the plain language
of the Mine Act (which defines "agent" as "any person charged
with responsibility for the operation of all or a part of a coal
or other mine or the supervision of the miners in a coal or other
mine," 30 U.S.C.  802(e)), Anderson must be deemed an agent.

     My colleagues point out that, when deciding whether a miner
is an agent of an operator, the Commission has

     focused on the miner's function and not his job title. It
     has examined whether the miner's function involved respon-
     sibilities normally delegated to management personnel
     and whether his responsibilities were crucial to the mine's
     operation.  It has also considered whether the miner 
     exercised managerial responsibilities at the time of his
     negligent conduct.

Slip op. at 5-6 (citations omitted).

     Applying this approach to the case at hand merely reinforces
the appropriateness of designating Anderson an agent.  Although
Anderson did not have a job title such as superintendent or
foreman (which would readily convey managerial status), focusing
on his function - the person in charge of the loadout area -
confirms that it is proper to consider Anderson an agent.  Did he
carry out responsibilities normally delegated to management?
Absolutely.  He supervised the employees in his crew and
conducted the weekly safety meetings.  Were his responsibilities
crucial to the mine's operation?  I don't think anyone could deny
that the loadout area is an integral part of the mining
operation.  Lastly, was Anderson exercising managerial
responsibility at the time of his negligent conduct?  It is
undisputed that the accident occurred as a direct result of
Anderson instructing backhoe operator Jason Jones to release the
air brake on the locomotive.

     In declining to consider Anderson an agent, my colleagues
claim support for the judge's finding that the control Anderson
exercised over the loadout area was "tightly circumscribed."
However, other than visiting the loadout area several times a
shift to check on how things were going, Tr. 154, 267, 281, it is
unclear how Reese, the plant foreman, exercised this allegedly
tight control.  Although Reese may have told Anderson what work
was to be performed each day, it was Anderson who decided how to
direct the crew in order to get that work done.  Indeed, far from
exhibiting a tight control over the loadout area, the record
would indicate instead that supervision by Reese was quite loose.
Like Commissioner Marks, I also find telling the judge's remarks
that it was strange for Reese, on the day of the accident, to
neither know of, nor be curious about, whether the brakes on the
rail cars had been set.  21 FMSHRC at 82.  In fact, I find such
stunning lack of involvement by higher management to be
inconsistent with, and indeed to fatally undermine, the claim
that Anderson's control of the loadout area was "tightly
circumscribed."

     My conclusion regarding Anderson's status is consistent with
Commission decisions resolving whether certain miners should be
considered agents or supervisors.  Cases where the Commission has
considered a miner to be an operator's agent include Ambrosia
Coal & Constr. Co., 18 FMSHRC 1552, 1560-61 (Sept. 1996) (miner
was agent when he accompanied inspectors on their inspections,
gave work orders to abate citations, was responsible for seeing
that equipment repairs were made, was paid a salary like
management, and did not receive extra pay for overtime) and
Rochester & Pittsburgh Coal Co. ("R&P"), 13 FMSHRC 189, 194-96
(Feb. 1991) (miner was an agent when he conducted statutorily
mandated weekly shift examination); see also Pocahontas Fuel Co.,
8 IBMA 136, 146-48 (Sept. 1977), aff'd, 590 F.2d 95 (4th Cir.
1979) (Coal Act case) (miner was an agent when he conducted pre-
shift examination which was statutorily mandated duty of
operator).  Although the particular job duties in these cases
differed from Anderson's, the level of responsibility was
comparable.

     The cases cited by the majority, in which the Commission
found that the miner was not an agent or supervisor, are readily
distinguishable.  In Whayne Supply Co., 19 FMSHRC 447, 451 (Mar.
1997), for example, the miner simply carried out routine repair
duties, and helped less experienced miners.  In U.S. Coal, Inc.,
17 FMSHRC 1684, 1688 (Oct. 1995), the miner was an electrician
qualified to repair and maintain equipment, who could take it out
of service when warranted.  Finally, in REB Enters., Inc., the
miner did not have the authority to directly initiate the
assignment of work to employees.  20 FMSHRC 203, 211 (Mar. 1998).
The Commission in REB noted that, unlike in the instant case, the
Secretary had failed to present evidence that the miner was
directly responsible for controlling the acts of miners or that
he was responsible for their safety.  Id. at 211-12.[2]

     In holding that only an agent's negligence may be imputed to
an operator, R&P, 13 FMSHRC at 194, the Commission has already
eliminated the actions of rank-and-file miners as a basis for
unwarrantable failure findings.  I share the concern expressed by
Commissioner Marks that if the Commission adopts an overly-
restrictive view regarding who qualifies as a supervisor or
agent, we may be insulating management from negligence findings
in some circumstances where it is warranted.  This could
ultimately undermine the optimal vigilance about safety and
health matters which is the core purpose of the Mine Act, as
operators who know that they will avoid unwarrantable findings
and be subject to only minor penalties for the actions of most
individuals under their control may be tempted to cut corners
when it comes to complying with safety and health regulations.

     Unfortunately, I believe my colleagues have taken a giant
step toward that overly- restrictive approach with their decision
in this case.  They decline to consider Anderson an agent even
though Anderson regularly supervised employees in the loadout
area, an activity which brings him squarely within the Act's
definition of agent.  The fact that Anderson did not have
responsibility for hiring or firing these individuals, and the
fact that Anderson was himself subject to supervision does not
change his status as agent.  The relevant factor, it seems to me,
is that Anderson had ongoing authority to tell the other miners
what to do.  The miners acknowledged this authority.
Accordingly, when Anderson told Billy Moss to hook up the valve
which allowed the air compressor on the locomotive to be used for
purposes other than braking, Moss complied.  Likewise, on the day
of the accident, when Anderson told Jones to release the air
brake, Jones did as instructed.  Anderson died as he was cleaning
the scales with the compressed air from the locomotive.  Had
Anderson chosen instead to instruct a member of his crew to clean
the scales, that miner would no doubt have complied, and would
have been killed instead of Anderson.  I suggest that when the
operator gives an individual like Anderson the authority to
direct miners regarding what tasks will be performed, and how
those tasks will be carried out, that individual should be
considered acting on the operator's behalf and the operator
should be held accountable for that individual's actions.

     For the reasons stated above, I would reverse the judge's
determination that Anderson was not an agent of Martin Marietta
Aggregates.  I would find that he was an agent, hold that the
violation was the result of the operator's unwarrantable failure,
and impute his negligence to the operator for the purpose of
determining a penalty.  Accordingly, I respectfully dissent.


                                Mary Lu Jordan, Chairman


Distribution

Robin Rosenbluth, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203

Theodore L. Garrett, Esq., Covington & Burling, 1201 Pennsylvania
Ave., N.W., P.O. Box 7566, Washington, D.C.  20044

Henry Chajet, Esq., David B. Robinson, Esq., Patton Boggs LLP,
2550 M Street, N.W., Washington, D.C.  20037

Harry Tuggle, Esq., United Steel Workers of America, Five Gateway
Center, Pittsburgh, PA 15222


**FOOTNOTES**

     [1]  At least some members of the crew believed that
Anderson could fire them.  Tr. 278.

     [2]  In addition, the majority observes that the Commission
has also been guided by common law principles of agency, stating
that "the acts or knowledge of an agent are attributable to the
principal" (slip op. at 5 (citing Pocahontas Fuel Co., 8 IBMA at
147)), and that "a principal is liable for the acts of an agent
that are apparently within the agent's authority and which the
principal permits the agent to exercise," (id. (quoting Ambrosia,
18 FMSHRC at 1561 n.12)).  These precepts are not violated by a
determination that Martin Marietta (the principal) unwarrantably
violated the Act on the basis of the actions of Anderson (the
agent) .  The manner in which Anderson attempted to clean the
scales is the behavior which underlies the citation.  Cleaning
the scales was within Anderson's authority and was a job that
Marietta permitted him to exercise.