An administrative law judge for the Federal Mine Safety and Health Commission raised a proposed fine against a West Virginia trucking company by nearly $10,000 after questioning the credibility of a company supervisor and its mechanic and determining the firm had either misplaced or destroyed potentially compromising pre-operational (pre-op) examination records about the condition of brakes on a haul truck. Secretary of Labor v. Lincoln Leasing Co., Inc., No. WEVA 2012-1783 (FMSHRC July 13, 2015).
In February 2012, an inspector for the Mine Safety and Health Administration (“MSHA”) overheard a conversation between a driver for Lincoln Leasing Co., Inc. and the maintenance foreman for the coal operator for whom Lincoln was working as an independent contractor. The driver told the foreman the rear brakes on his truck were in such poor condition that he was reluctant to drive the vehicle downhill. He also showed the foreman a page from his pre-op exam checklist noting that the truck needed new back brakes.
The exchange prompted the MSHA representative to inspect the vehicle. The truck failed a brake function test and the inspector’s visual examination of the rear brakes showed what the inspector described as “severe deterioration of the driver’s side rear axle brake shoe friction [pad].” The driver later testified that, after a fuse blew out as he was ascending a grade, he had been unable to stop the truck from rolling backward until it came to rest in a ditch.
The inspector cited Lincoln under Section 104(d)(1), a provision of the Mine Act allowing MSHA to cite for unwarrantable failure, which is aggravated conduct beyond ordinary negligence. The evidence revealed the condition had existed for more than one shift ‒ the driver testified he had mentioned the problem to his supervisor about six times over the previous two weeks ‒ and Lincoln’s supervisor made no attempt to repair the brakes even after being told they were defective. Administrative Law Judge L. Zane Gill on July 13 upheld the citation as written.
Because pre-op inspection records for the truck were not available for a period prior to three days before the citation was written and could not be produced, MSHA moved for an adverse inference ruling. Finding that Lincoln had “engaged in questionable practices regarding its document retention and production in this case,” Gill granted MSHA’s motion.
“It is troubling and highly suspect that Lincoln Leasing was able to produce reports for only three days, yet its pre-operational records were kept in a bound 30-day book. Despite this, Lincoln Leasing claims that no other reports could be found,” the judge explained.
In a footnote, Gill also paraphrased what he described as “some very disturbing” testimony by the driver. According to the judge, on the day the citation was written, the driver told his supervisor he did not want to use the truck because the brakes were bad. In response, the supervisor told the driver that if he didn’t want to operate the vehicle, he should go home. “[Driver] took that to mean that if he did not haul coal he would be fired,” Gill said. Gill noted that the contractor also tried to discredit the driver’s credibility. Instead, Gill discredited the testimony of Lincoln’s supervisor and its mechanic because they “made multiple inconsistent and factually unsupported statements.”
MSHA proposed a $45,708 fine, but Gill raised it to $55,000.
The inspector also wrote an order under Mine Act Section 104(d)(1) after observing that the backup alarm on the truck was inoperable and determining that the condition had been noted on the pre-op exam record for that day. However, at the hearing, the pre-op form did not show the alarm was not working. Although both the inspector and the driver inferred the form had been tampered with, the conflicting evidence led Gill to conclude the alarm was functional at the time of the pre-op inspection. He lowered the level of negligence from high to moderate and dismissed the unwarrantable failure classification by reducing the order to a routine citation under Section 104(a). He also cut MSHA’s proposed $7,176 fine to $2,161.