<DOC>
[DOCID: f:yo200065c.wais]
VERMONT UNFADING GREEN SLATE COMPANY, INC.
YORK 2000-65-M
May 9, 2002
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                   1730 K STREET NW, 6TH FLOOR
                     WASHINGTON, D.C.  20006
SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    : Docket Nos. YORK 2000-65-M
                                :             YORK 2000-66-M
VERMONT UNFADING GREEN SLATE    :
  COMPANY, INC.                 :
BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners
                             DECISION
BY: Verheggen, Chairman; Beatty, Commissioner
     In this civil penalty proceeding arising under the Federal
Mine Safety and Health Act, 30 U.S.C.  801 et seq. ("Mine
Act"), Administrative Law Judge T. Todd Hodgdon affirmed five
citations, modified and affirmed two citations, and vacated
four citations issued by the Department of Labor's Mine Safety
and Health Administration ("MSHA") to Vermont Unfading Green
Slate Company ("Vermont Slate").  23 FMSHRC 310, 320 (Mar.
2001) (ALJ). Vermont Slate filed a petition for discretionary
review ("PDR") challenging the judge's decision on procedural
grounds and requesting that the Commission vacate the judge's
findings of six violations.  PDR at 1-5.  The Commission
subsequently granted Vermont Slate's petition.  For the reasons
that follow, we vacate the judge's decision with respect to one
citation, and affirm the judge's decision in all other respects.
                               I.
            Summary Factual and Procedural Background
     Vermont Slate operates the Blissville Quarry and Mine, a
slate quarry in Rutland County, Vermont.  23 FMSHRC at 310. On
January 19, 2000, Inspector Brett Budd and Inspector-trainee
Robert Tango arrived at the Blissville Quarry to conduct a
semi-annual inspection.  Id.  After completing the inspection,
the inspectors issued 11 citations to the operator. Id.
     Vermont Slate contested all 11 violations and penalties.
Id. at 311-18. MSHA subsequently filed a petition for assessment
of penalties in the amount of $904.  Id. at 310. On December 14,
2000, a hearing was held in Rutland, Vermont.  Id. Vermont Slate
Supervisor Shawn Camara represented the operator at the hearing.
In his decision, the judge concluded, inter alia, that the
operator had committed the six violations at issue here, and
assessed penalties totaling $470.  Id. at 319-20.
                               II.
                           Disposition
     A.   Citation No. 7720771
          1.   Contest of Violation
     MSHA issued Citation No. 7720771 to Vermont Slate for
an unguarded v-belt drive on the slate trimmer, alleging a
violation of 30 C.F.R.  56.14107(a).[1] 23 FMSHRC at 313. The
citation stated that "[a] machine guard was not provided to
prevent accidental contact with the v belt drive system,
exposing the pinch points that are about 5 feet from ground
level, located on the left side of the slate trimmer." Id.;
G. Ex. 5.  The trimmer was about three to four feet high and
three feet wide, and was located in the garage on a stack of
pallets about four to five feet high.  23 FMSHRC at 313;
Tr. 64-66, 70-71.  A wheelbarrow was located on the ground
below the trimmer to catch chips of slate from the machine.
Tr. 65, 163, 167.  Budd testified that the operating station
on the trimmer had a drive wheel which turned the blade to
trim the slate, and that below the drive wheel was an electrical
motor that drove the pulley to operate the machine. 23 FMSHRC
at 313; Tr. 67.  He also testified that the v-belt drive was not
guarded, exposing a miner standing on the platform to operate
the trimmer to two pinch points.  Tr. 67.  According to Budd,
the upper pinch point was located where the v-belt drive
contacted the upper drive pulley, which was about three to four
feet above the platform, and the lower pinch point was located
where the v-belt came in contact with the drive pulley onto that
system, which was about one foot above the platform. Tr. 67-69.
     Camara admitted that the v-belt was not guarded, but
testified that the pulley had a guard on the front.  Tr. 165,
169.  He also testified that a person would not be standing on
the platform while the trimmer was running, and that the only
way a person could get caught in the moving parts was if he was
standing on the ground pointing a stick into the belt drive or
was nine feet tall. Tr. 164, 166, 168-69. On cross-examination,
Camara admitted that a miner operating the machine would stand
on the pallets, but testified that "where the guy sits or where
the guy stands, that's where it's guarded."  Tr. 165, 167.
Camara also testified that the exposed moving parts were
towards the back on the side of the trimmer, but did not pose
a hazard because benches on both sides of the machine prevented
access from the platform.  Tr. 163-65, 167-68.  He also
testified that the moving parts did not pose a hazard to
someone standing on the ground because it was about eight feet
off the ground. Tr. 163-64.
     The judge found that the exposed moving parts on the
trimmer were not properly guarded, posing a hazard to the
machine operator standing on the pallet platform. 23 FMSHRC
at 314. He dismissed Camara's testimony as irrelevant because
it addressed whether the exposed moving parts posed a hazard
to a person standing on the ground. Id. The judge concluded
that the violation was not significant and substantial,[2]
and assessed a penalty of $55. Id. at 313-14, 319.
     On review, Vermont Slate asserts that the evidence does
not support a finding of a violation because Budd testified
that the hazard existed to someone standing on top of the
pallets next to the machinery, but Tango's notes and the
citation indicate that the hazard exists to someone standing
beneath the machinery.  PDR at 3.  It contends that the v-belt
is adequately guarded and that "a worker on top operating the
machine would [not] be exposed to any danger."  Id.  The
Secretary argues that Budd testified that a miner standing on
top of the pallets is subject to the hazard and that he had
explained this to Camara during the inspection. S. Br. at 1
3-14. She asserts that the citation states that "pinch points
are about 5 feet from ground level," which corroborates Budd's
testimony that the hazard was to a miner standing or working
on the platform. Id.
     The judge's characterization of Camara's testimony as
"irrelevant" because it dealt "only" with "someone standing on
the ground" is incorrect.  Some of Camara's testimony was an
attempt to refute the danger posed by the pinch points to a
miner standing on the pallets.  Specifically, the judge did
not consider Camara's testimony that the exposed moving parts
did not pose a hazard because benches on the side of the
trimmer prevented access from the platform.
     Commission Procedural Rule 69(a) requires that a
Commission judge's decision "shall include all findings of fact
and conclusions of law, and the reasons or bases for them, on
all the material issues of fact, law or discretion presented
by the record."  29 C.F.R.  2700.69(a).  As the D.C. Circuit
has emphasized, "[p]erhaps the most essential purpose served by
the requirement of an articulated decision is the facilitation
of judicial review."  Harborlite Corp. v. ICC, 613 F.2d 1088,
1092 (D.C. Cir. 1979).  Without findings of fact and some
justification for the conclusions reached by a judge, we cannot
perform our review function effectively. Anaconda Co., 3 FMSHRC
299, 299-300 (Feb. 1981).  We thus have held that a judge must
analyze and weigh all probative record evidence, make
appropriate findings, and explain the reasons for his or her
decision.  Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June
1994).
     Camara's testimony regarding the hazard to miners on the
platform is clearly relevant.  Because the judge did not
consider this testimony, he erred by failing to analyze and
weigh all the probative record evidence to determine whether
the moving parts posed a hazard to miners on the platform.
     Our dissenting colleague appears to agree with our
conclusion that the judge erred when he dismissed Camara's
testimony based on irrelevance.  Slip op. at 11.  However, our
colleague makes the mistake of evaluating Camara's testimony
here as "muddied and inconsistent" and suggests that remanding
to the judge is not necessary.[3]  Id.  It is for the judge in
the first instance, not the Commission on review, to evaluate
testimony and make findings of fact.  See Grizzle v. Pickands
Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993) (ALJs have
"sole power to make credibility determination and resolve
inconsistencies in the evidence") (citation ommitted).
          2.   Tango's Testimony
     In conjunction to its challenge to the citations, Vermont
Slate argues that the judge erred when he refused to allow it
to call Tango to testify about his notes and the citations
written on the date of the inspection.  PDR at 1.  At the
hearing, when Camara cross-examined Budd about Tango's notes,
he stated, "Mr. Baskin [the Secretary's counsel] said on the
phone that Mr. T[a]ngo and Mr. Budd was [sic] going to be here,
and Mr. T[a]ngo is not here.  Now I would think that maybe
possibly he should be here."  Tr. 114.  The judge responded,
"that's up to Mr. Baskin or you, not - if he's [Tango] not
here, he's not here." Tr. 114. At another point during the
hearing, Camara stated, "I would like Mr. T[a]ngo to be here
during these questions.  He's obviously not here."  Tr. 132.
The judge responded, "Well it may be, but the Government chose
not to call him."  Tr. 132.  Camara then asked the judge, "Can
I call him?"  Tr. 132.  The judge replied, "To get him here,
we're going to have to continue the case."  Tr. 132.  He
explained to Camara that he doesn't "tell the parties who they
have to present as witnesses, they decide," and that it was
"up to the solicitor [what witnesses to call], and they are
not calling him [Tango]."  Tr. 132-33. Camara asked "What do I
do?" Tr. 133. The judge explained that he could "tell us your
versions of all these citations."  Tr. 133.  The judge then
recessed for 15 minutes, and upon resuming, asked Camara
"[w]hat would you like to do?"  Tr. 133-34.  Camara responded
that he wanted to call Carl Onder and proceeded with the
presentation of his case.  Tr. 134.  After Camara questioned
Onder, he stated that he did not want to testify and attempted
to rest his case. Tr. 147-48.  The judge persuaded Camara to
take the stand to testify about each citation. Tr. 148.
     On review, Vermont Slate contends that it did not subpoena
Tango because counsel for the Secretary indicated that Tango
would be present at the hearing. PDR at 1. The operator points
out that much of the testimony of Budd, the inspector who
accompanied Tango on the inspection, was inconsistent with
Tango's notes, and that it was more appropriate for Tango to
testify about his notes.  Id. at 1-2.  Vermont Slate thus
contends that it was prejudiced by Tango's absence.  Id.  The
Secretary responds that the record does not support Vermont
Slate's assertion that she indicated Tango would be at the
hearing, and also denies that the operator made a showing of
prejudice.  S. Br. at 5-9.
     While the judge did provide a measure of guidance to
Camara, a pro se litigant, we find he sent mixed signals to
Camara in response to his request to call Tango as a witness.
For example, when Camara asked the judge whether Tango should
be present, the judge did not inform Camara that he could call
Tango, or of the procedure for doing so.  In fact, when Camara
specifically asked the judge whether he could call Tango, the
judge responded that the case would have to be continued, and
did not directly respond to Camara's question.  The judge's
response may have confused Camara, because he again asked the
judge what he could do, and ultimately did not pursue calling
Tango in spite of his insistence that the inspector's testimony
would be key to Vermont Slate's case.
     We do not suggest that the judge abused his discretion.
However, as a matter of fairness and in the interest of justice,
Vermont Slate should be given an opportunity to present Tango's
testimony in support of its case, particularly in light of the
fact that the company is proceeding pro se. Based on the record,
the company clearly expressed its intention to call Tango to
testify and offered an explanation for its failure to subpoena
him.  It also points to inconsistencies in Tango's inspection
notes, the citations, and Budd's testimony as a basis for its
allegation of prejudice.  In light of these circumstances and
the judge's dismissal of Camara's testimony, Tango's absence
from the hearing may have prejudiced Vermont Slate.
     Accordingly, we vacate the judge's finding of a violation
and remand to him with instructions that he reopen the record
and permit Vermont Slate to present Tango's testimony relating
to the guarding hazard on the trimmer.  At the same time, the
judge must reconcile any conflicting evidence and determine if
the guarding was adequate to protect a miner standing or
working on the platform next to the trimmer.[4]
     B.   Citation No. 7720768
     MSHA issued Citation No. 7720768 to Vermont Slate for
insufficient lighting in an area of the garage where the
control panels were located, alleging a violation of 30 C.F.R.
 56.17001.[5]  Budd described the area as a "dark closet," a
two foot by seven foot open space next to the garage entrance.
Tr. 34.  The electrical control panel boxes and first aid
supplies were located in this space.  Tr. 34.  Budd testified
that in order to read the panel boxes, "you had to get right
up in front of them and really look," which he asserted was
unsafe if the power needed to be shut down to a piece of
equipment in an emergency.  Tr. 35-36.  Budd admitted that he
could read the tag on the fire extinguisher which was the
subject of Citation No. 7720767 and was kept in this area, but
explained that the extinguisher was located immediately next
to the doorway where there was more natural light from the
garage.  Tr. 38-40.  The Secretary contends that the area's
lighting was "not sufficient to provide safe working
conditions" as required by the standard because in an
emergency, a miner could mistakenly switch the wrong
electrical box off due to the lack of light.  S. Br. at 12.
     The judge found that the space in question had no
artificial lighting and that the only lighting in the area
was natural light which came into the area through the garage
door.  23 FMSHRC at 312.  He found that the lighting was
insufficient to illuminate the interior space where the
switch panels were located.  Id. The judge concluded that
Vermont Slate violated the regulation, affirmed the citation,
and assessed a penalty of $55.  Id. at 312, 319.
     On review, we first note that the judge credited Budd's
testimony that the natural light in the control panel area was
not adequate to permit a person to read the labels on the
panels.[6]  A judge's credibility determinations are entitled
to great weight.  Farmer v. Island Creek Coal Co., 14 FMSHRC
1537, 1541 (Sept. 1992).  The Commission has noted that "the
general rule [is] that, absent exceptional circumstances,
appellate courts do not overturn findings based on credibility
resolutions."  In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1881 n.80 (Nov. 1995),
aff'd sub nom. Secretary of Labor v. Keystone Coal Mining
Corp., 151 F.3d 1096 (D.C. Cir. 1998).  Here, we find nothing
in the record that would warrant us taking the extraordinary
step of reversing the judge's credibility determinations with
regard to this citation.[7]  Accordingly, we affirm the judge's
finding of a violation.
     C.   Citation No. 7720772
     Vermont Slate received Citation No. 7720772 for failing
to provide a safe means of access to the trimmer, allegedly in
violation of 30 C.F.R.  56.11001.[8] This is the same trimmer
that was the subject of Citation No. 7720771, located on a
stack of pallets about five-feet high. 23 FMSHRC at 315. Budd
testified that Camara told the inspectors that an operator
accessed the trimmer by climbing the pallets.  Id.  Budd also
testified that a miner had to stick his feet in the holes
between the pallets and pull himself up.  Tr. 79-80.  There
were no handrails, steps, or ladder provided for miners
accessing the trimmer.  23 FMSHRC at 315.  Camara's testimony
corroborated Budd's description of this arrangement. Id.; Tr.
170-71.  The judge found that the pallets, without steps or
handrails, failed to provide a safe means of access to the
trimmer.  23 FMSHRC at 315.  He concluded that Vermont Slate
violated the standard, affirmed the citation, and assessed a
penalty of $55.  Id. at 315, 319.
     Notwithstanding Vermont Slate's assertion that the pallets
were a safe means of access to the trimmer (PDR at 3-4), the
judge's conclusion that, in the absence of steps or handrails,
the pallets were an unsafe means of access is both reasonable
and amply supported by the record.  See Donovan ex rel. Chacon
v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983) (the
Commission may not "substitute a competing view of the facts
for the view [an] ALJ reasonably reached").  Accordingly, we
affirm the judge's finding of a violation.
     D.   Citation No. 7720773
     MSHA issued Citation No. 7720773 to Vermont Slate for
allegedly violating 30 C.F.R.  56.15004[9] because the slate
saw operator was not wearing eye protection.  The saw was "a
radial saw arm" with a circular blade about 28 inches in
diameter and a half hood over the blade. 23 FMSHRC at 315; Tr.
87-88.  The saw operator worked at the control station with
the saw in front of him and positioned the slate between
himself and the blade.  23 FMSHRC at 315.  The blade cut
through the slate moving towards the sawyer while water
sprayed onto the saw to keep the dust down.  Id.  Budd
testified that chips of slate could fly off the block posing
a hazard of eye injury while a miner positioned the slate
with a crowbar, which could slip, and while a miner operated
the saw.  Tr. 91-92.
     It is undisputed that the saw operator was not wearing
eye protection.  23 FMSHRC at 315.  Camara testified that
the common practice at most quarries was not to wear eye
protection.  Tr. 158.  However, he also admitted that most
of the miners at the quarry put on eye protection whenever
inspectors visited the site.  Tr. 158, 180.  He testified
that there was no risk of eye injury because the saw had a
hood over the blade and sprayed water, and denied that chips
would fly off the block of slate. Tr. 178-79.
     The judge credited Budd's testimony and found that the
saw posed a hazard of eye injury, and concluded that Vermont
Slate violated the standard by not requiring the saw operator
to wear eye protection.  23 FMSHRC at 316.  He also found that
the evidence was insufficient to support a finding that the
violation was significant and substantial and modified the
citation, deleting the S&S designation.  Id.  The judge
affirmed the citation as modified and assessed a penalty of
$55.  Id. at 316, 319.
     First, we find no reason to disturb the judge's crediting
Budd's testimony that the saw posed a hazard that required eye
protection.  Farmer, 14 FMSHRC at 1541. As for whether Vermont
Slate violated the standard, while the operator argues that it
was not aware of the requirements of section 56.15004, the
record reveals that saw operators at the mine did wear eye
protection. In fact, Camara admitted that saw operators would
wear eye protection when MSHA inspectors visited the site. Tr.
158, 180. Accordingly, we affirm the judge's finding of a
violation.
**FOOTNOTES**
     [1]:  Section 56.14107 provides in pertinent part:
          (a)  Moving machine parts shall be guarded to
          protect   persons   from   contacting  gears,
          sprockets,  chains,  drive,  head   tail  and
          takeup pulleys . . . and similar moving parts
          that can cause injury.
          (b)   Guards shall not be required where  the
          exposed  moving parts are at least seven feet
          away from walking or working surfaces.
30 C.F.R.  56.14107.
     [2]:  The S&S terminology is taken from section 104(d)(1)
of the Act, 30 U.S.C.  814(d)(1), which distinguishes as
more serious any violation that  "could  significantly and
substantially contribute to the cause and effect of a . . .
mine safety or health hazard."
     [3]: Our dissenting colleague relies on the Commission's
decision  in Arch of Kentucky, 20 FMSHRC 1321 (Dec. 1998), to
support her opinion that remanding this matter to the judge
is unnecessary.  In Arch, the Commission  held  harmless the
judge's error in sustaining the Secretary's objection to the
operator's questioning  of  her witness on cross-examination,
effectively excluding evidence the operator sought to submit.
Id. at 1328-29.  However, Arch is distinguishable because in
that case, the judge  had the opportunity to consider the
value of the  excluded evidence  in  light of the Secretary's
objection and the parties' arguments at the  hearing. Unlike
Arch, here, Vermont Slate did not  know  at the hearing that
the  judge  would  not  consider Camara's testimony and thus
did not have an opportunity to present alternative evidence
or its arguments below.
     [4]: We  agree with the Secretary that the record does
not support Vermont Slate's  assertions  that  the  judge
refused to allow it to call Okey Reitter, MSHA's Assistant
District Manager, to testify.  First, contrary to the
operator's suggestion, there is  no  indication  in  the
record  that  at any time before the hearing, Vermont Slate
requested that Reitter  be  present at the hearing, or that
the Secretary objected to its request,  or  that the  judge
considered  the  matter and sustained the Secretary's
objection.  In fact, the record  indicates  that  at the
hearing, Camara did not attempt to call Reitter to testify.
Moreover, Reitter's absence from  the  hearing  did  not
prejudice Vermont Slate, because Reitter was neither present
at the  inspection nor a party to the post-inspection
telephone conference  between MSHA and the operator.
     [5]: Section   56.17001   provides   in  pertinent  part:
"Illumination sufficient to provide safe working conditions
shall be  provided  in and on all . . . switch panels."   30
C.F.R.  56.17001.
     [6]: We also note that it is undisputed that the only
light in the control  panel  area  was  natural  light  coming
from the garage, and that the panels faced the interior of the
space, away from the doorway.
     [7]: Vermont  Slate  asserts that the judge's decision to
vacate another citation at issue  at the hearing (No. 7720769)
based  on  his  decision to credit Camara over Budd undermines
Budd's credibility with respect to Citation  No. 7720768. PDR
at 2. The Commission has rejected, however, the "false in one,
false in everything"  rule  of  testimonial evidence, noting
that "it is not uncommon, and certainly  not reversible error,
for the trier of fact to find a witness to be  credible  on
some, but not other, matters."  Ankrom v. Wolcottville Sand &
Gravel  Corp., 22 FMSHRC  137,  145  n.7 (Feb. 2000), aff'd,
No. 00-3374 (6th  Cir. Dec. 4, 2000).  We thus reject Vermont
Slate's argument.
     [8]: Section 56.11001 provides: "Safe means of access
shall be provided and maintained  to  all working places."
30 C.F.R.  56.11001.
     [9]:  ection 56.15004 provides:  "All  persons  shall
wear safety  glasses,  goggles,  or  face  shields  or  other
suitable protective devices when in or around an area of a
mine  or  plant where  a  hazard  exists  which could cause
injury to unprotected eyes."  30 C.F.R.  56.15004.
     E.   Citation No. 7720775
     MSHA issued Citation No. 7720775 to Vermont Slate for
failing to provide a safety lock on the hose to a jack hammer,
alleging a violation of 30 C.F.R.  56.13021.[10]  Budd
testified that the hose connected to the jack hammer was
making a hissing sound and concluded that it was bleeding air.
23 FMSHRC at 317; Tr. 105. He also testified that he saw slate
and other materials in the area that are used in conjunction
with hammering.  23 FMSHRC at 317; Tr. 105.  Budd testified
that although the hammer was not being used at the time of the
inspection, because the hammer could be used, the lack of a
safety device on the hose to prevent it from coming apart and
causing a whipping action was a violation of the standard.
23 FMSHRC at 317; Tr. 104-05.  In support of the S&S
designation on the citation, Budd testified that it was likely
that during use the hose would disconnect if no safety lock was
in place, and that if it disconnected, the hose would whip
around out of control and potentially inflict serious of even
fatal injuries.  23 FMSHRC at 317.  Camara admitted that the
hose did not have a safety device, but testified that the
hammer was not in use on the day of the inspection. Tr. 182-83.
The judge credited Budd's testimony and found that Vermont
Slate violated the standard. 23 FMSHRC at 317. He also found
that the violation was significant and substantial and
assessed a penalty of $140. Id. at 317, 319.
     On review, there is no dispute that the connection
between the hose and the jack hammer had no safety lock. We
also find nothing in the record that would lead us to overturn
the judge's crediting of Budd's testimony regarding his
observations that he heard air hissing out of the hose and saw
materials used in connection with hammering activities lying
in the same area as the jack hammer.  Farmer, 14 FMSHRC at
1541.  Finally, the judge's conclusion that the hammer had
recently been used was a reasonable inference for him to draw
from Budd's testimony.  Mid-Continent Res., Inc., 6 FMSHRC
1132, 1138 (May 1984) (emphasizing that inferences drawn by
the judge are "permissible provided they are inherently
reasonable and there is a logical and rational connection
between the evidentiary facts and the ultimate fact inferred.").
Accordingly, we affirm the judge's finding of a violation.
     F.   Citation No. 7720778
     MSHA issued Citation No. 7720778 to Vermont Slate for
failing to provide a miner trained in first aid at the site
during the work shift, alleging a violation of 30 C.F.R.
 56.18010.[11]  The individual trained in first aid was sent
to another site because there was not enough work at the
Blissville Quarry.  23 FMSHRC at 318; Tr. 128-29.  The judge
found that the evidence regarding this citation was undisputed,
that the miner trained in first aid was sent to another
location, and that there was no one at the quarry trained in
first aid.  23 FMSHRC at 318. He rejected Vermont Slate's
argument that the absence of a first aid miner was not a
violation of the regulation because the medical center was only
1.3 miles from the quarry, and concluded that Vermont Slate
violated section 56.18010. Id. The judge assessed a penalty
of $55. Id. at 319.
     The record evidence clearly supports the judge's finding
that Vermont Slate failed to provide a miner trained in first
aid at the Blissville Quarry on the date of the inspection.
Accordingly, we affirm the judge's finding of a violation.
                              III.
                           Conclusion
     For the foregoing reasons, we vacate and remand Citation No.
7720771, and affirm the judge's decision with respect to Citation
Nos. 7720768, 7720772, 7720773, 7720775, and 7720778.
                           Theodore F. Verheggen, Chairman
                           Robert H. Beatty, Jr., Commissioner
**FOOTNOTES**
     [10]: Section 56.13021 provides: "Except  where automatic
shutoff valves are used, safety chains or other suitable
devices shall  be  used  at connections to machines of high
pressure hose lines . . . and between  high-pressure  hose
lines . . . where a connection failure would create a hazard."
30 C.F.R.  56.13021.
     [11]: Section 56.18010  provides in pertinent  part: "An
individual capable of providing first  aid  shall be available
on all shifts."  30 C.F.R.  56.18010.
Commissioner Jordan, concurring in part, and dissenting in part:
     I join the majority in affirming the judge's decision with
respect to five of the citations at issue in this case. However,
I would also affirm the judge's finding that the operator failed
to adequately guard the trimmer, in violation of 30 C.F.R.
 56.14107(a).[1]  Inspector Budd presented detailed testimony
regarding the lack of guarding of the moving parts of the v-belt
drive of the trimmer.  Tr. 64-69.  As my colleagues note, slip
op. at 2, the inspector clearly delineated the location of the
two pinch points.  He testified that the trimmer was unguarded
and that the machine operator would stand within a foot of the
v-belt, and "about arm's reach, maybe a little less" from the
pinch points. Tr. 64, 67, 69. He stated that because the v-belt
areas were not guarded, an individual could possibly stick a
hand in the v-belt drive or be drawn in from clothing,
possibly resulting in the loss of fingers or a hand. Tr. 64.
Consequently, I would hold that substantial evidence supports
the judge's determination, as a reasonable person could
certainly find this testimony adequate to support the judge's
conclusion that the trimmer was not adequately guarded.
     My colleagues in the majority find that the judge erred
by failing to properly analyze all of the probative evidence
to determine whether the moving parts on the v-belt drive
posed a hazard to miners on the platform who were operating
the trimmer. Slip op. at 4.  Specifically, the majority faults
the judge's conclusion that the evidence Camara presented on
that issue was irrelevant because the testimony addressed
only whether the exposed moving parts on the equipment were
hazardous to a person standing on the ground. Id. at 3-4.
     While the judge characterized Camera's evidence (which
consisted solely of his testimony and a drawing of the trimmer)
as irrelevant, I would call it muddied and inconsistent.  It
was not clear from his statements whether he actually ever
confronted MSHA's concern about the dangers of the v-belt to a
trimmer operator, because he spent a lot of time discussing
how impossible it would be to reach the pinch points from the
ground. Tr. 164, 166, 168-69.  He never clearly explained how
a machine operator would be protected from contact with the
pinch point areas.  Tr. 162-70.  In fact, when asked about the
v-belt, Camera testified: "Was not guarded."  Tr. 169.[2]
     This case is in a procedural posture similar to that of
Arch of Kentucky, 20 FMSHRC 1321 (Dec. 1998).  There, the
Commission found that the judge had improperly sustained an
objection by the Secretary, thus excluding evidence the
operator had tried to have admitted.  Id. at 1328.  However, a
unanimous Commission held that although the judge's evidentiary
ruling was incorrect, his error was harmless, in part because
the excluded testimony could not have overcome the credited
testimony of some of the other witnesses (together with other
evidence).  Id. at 1328-29. Thus the Commission did not find
it necessary to remand the case to the judge so that he could
take into account the improperly excluded testimony.  Here as
well, it is a needless exercise to remand the case to the
judge to review Camara's testimony once again.
      In a perplexing procedural move, my colleagues also
vacate and remand this case based in part on the operator's
argument that the judge erred by refusing Camera's request to
allow Tango to testify.[3]  At the same time, they admit that
the judge "did not directly respond to Camara's question."
Slip op. at 5.  I am hard pressed to think of another case
where the Commission (or any appellate body) vacated a
decision without even deciding whether the claimed error
occurred.[4]
     It appears as if my colleagues are actually vacating and
remanding this case because they believe the judge failed to
provide the operator, who was appearing pro se, with adequate
guidance about its right to call the witness. Id. This flies in
the face of the well-accepted precept that matters relating to
the orderly and expeditious conduct of a trial are within the
sound discretion of the trial judge. Jane C. Avery, Annotation,
Propriety and Prejudicial Effect of Federal District Judge's
Granting or Denying Brief Recess During Trial, 21 A.L.R. Fed.
948, 950 (1974); see also 75 Am. Jur. 2d Trial  180 (1991)
(court has supervisory power to control proceedings at trial,
and its authority to control the overall direction of the trial
will only be overturned when it abuses its discretion by acting
in an unreasonable, arbitrary, or unconscionable manner); In
re: Contests of Respirable Dust Sample Alternation Citations,
17 FMSHRC 1819, 1843 (Nov. 1995) (under an abuse of discretion
standard, a trial judge's decision will not be disturbed unless
it made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances).  Given that my
colleagues agree with my conclusion that the judge did not
abuse his discretion, slip op. at 4, (the applicable standard
of review, with which they do not quarrel), I fail to
understand the legal basis for their ruling.
     My colleagues also suggest that "Tango's absence from the
hearing may have prejudiced Vermont Slate," slip op. at 4
(emphasis added), but stop short of making a finding that
prejudice actually occurred.  Thus it appears that Vermont
Slate has failed to convince any of us that its inability to
call Tango resulted in substantial prejudice to its case. See
Capitol Cement Corp., 21 FMSHRC 883, 889-890 (Aug. 1999)
(operator failed to provide convincing evidence that its
inability to question a witness resulted in substantial
prejudice).  Accordingly, because I conclude that the judge's
actions regarding the request to call Tango as a witness did
not constitute an abuse of discretion, I decline to join my
colleagues in vacating and remanding this case with
instructions to the judge to permit the operator to present
Tango's testimony.
     For the foregoing reasons, I would affirm the judge's
finding that the operator failed to adequately guard the
v-belt drive, in violation of 30 C.F.R.  56.14107(a).
                           Mary Lu Jordan, Commissioner
Distribution
Shawn Camara
Vermont Unfading Green Slate Company
P.O. Box 210
Poultney, VT 05764
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
**FOOTNOTES**
     [1]: Section 56.14107(a) requires that moving machine
parts be guarded to protect persons from moving parts that
may cause injury.
     [2]: Camara did initially insist that the trimmer was
guarded, but apparently  only  in the front. Tr. 163-65. The
inspector clarified that there was a guard on the trimmer
itself, but not on the v-belt drive.  Tr. 72-73.
     [3]: The operator based its  request  on its assertion
that counsel for the Secretary had told Camera that Tango
would be at the hearing. PDR at 1. No evidence in the record
supports this contention,  and  the Secretary's witness list
on  her  Preliminary  Statement  does  not  include  Tango.
S. Pre-Hearing Statement.
     [4]: Even if the judge had issued an outright denial
when the  operator requested Tango's  presence  at  the
hearing,  the operator  made  no  showing  that it had
attempted to produce the witness itself.  Most courts have
concluded that a party  who relies on its adversary to produce
a witness has not demonstrated the  diligence required to the
granting of a continuance and that therefore  the  trial court
acts within its discretion in denying the continuance.
Annotation, Prejudicial Effect, in Civil Case, of Denial of
Continuance  to  Call  Nonappearing  Witness  Whom Adversary
had  been  Expected to Call, 39 A.L.R. 2d 1445, 1446 (1955);
see also 17 Am. Jur. 2d Continuance   14 (1991) (request
for  a  continuance  based  on absence of a witness  is
properly refused when applicant has not  used due diligence
to procure the attendance of the witness).