By Ellen Smith
An ALJ improperly determined that a company lacked “adequate notice” when cited for four violations at its plant where an MSHA inspector alleged excessive movement in the ball joints of the steering linkage of four trucks.
In sending the case back to the judge, the Review Commission unanimously decided that if a “reasonably prudent person” would make the determination that excessive play in the ball joints was a defect under §56.14100(c), then the operator has sufficient notice of the standard, and the operator cannot claim that it lacked adequate or fair notice of a standard’s requirements.
The case began in 2009 when MSHA Inspector Howard Wood, inspected five to eight haul trucks, seven to 10 pickup and service trucks, and some other mobile equipment at Lafarge’s portland cement facility in Davenport, Iowa.
In one case, Wood asked a Lafarge employee to get in the truck and turn the steering wheel back and forth, in order to “rock” it. In the case of the three pickup trucks, Wood held onto a tire as well and testified that he felt a “little bit of knocking” or “slapping” and heard a clicking noise he attributed to the ball moving in the socket. Wood estimated that the ball joint movement he observed had been approximately 1/4 in. in each instance, based on the amount of movement he observed relative to the width of the ink pen he held up for contrast, which he estimated to be over 1/4 in. but less than 3/8 in. in width.
Based upon a standard in the “Commercial Vehicle Safety Alliance Manual.” Wood testified that any movement greater than 1/8 in. indicated that a hazardous defect existed, and based upon that information, he cited Lafarge under §56.14100(c), which requires self-propelled mobile equipment to be taken out of service when safety defects are discovered. All were deemed S&S.
Though the operator agreed movement of 1/4 in. may be hazardous, a company witness testified that two of the vehicles did not show any movement at all when repaired, and the other two showed very little movement.
In July 2011, ALJ Patrick Augustine held a hearing, and did not address the movement issue, but instead focused on whether the operator had adequate notice of what the safety standard required.
Two government witnesses disagreed that movement of more than 1/8 in. in a ball joint meant that §56.14100(c) had been violated for the small vehicles. Since the Secretary could not show any measurement or standard that would be considered objective or reasonable, the ALJ ruled that the operator did not have fair notice and vacated all four citations.
Before the Commission, the Secretary argued that he should not be required to establish an objective measurement for the standard. Instead, he argued that the “reasonably prudent person” test should be applied.
The Review Commission said in this case, to establish a violation a person must determine the amount of ball joint movement that constitutes a “defect” under the standard.
While in this case the ALJ made no finding regarding whether Lafarge had actual notice that the movement in the ball joints was sufficient to constitute a violation, Lafarge’s witness did testify that a ball joint would be hazardously defective if it moves more than 1/4 in. Therefore, the operator did have “actual notice” that at some point the movement of a ball joint makes a piece of equipment defective.
Even if the company lacked “actual notice,” the Commission then applies the “reasonably prudent person test” for adequate or fair notice, so the question is, “would a person recognize that excessive wear in the ball joints was a hazard that needed to be corrected?” If a person recognizes the existence of a defect constituting a hazard, then the operator has sufficient notice.
Since there were still questions in this case as to the amount of movement in the cited ball joints, and conflicting testimony existed, the case had to be remanded back to the ALJ to apply the “reasonably prudent person” test to resolve conflicting testimony and if there was in fact any movement, determine whether a particular amount of movement violated the regulation.
Secretary of Labor v. Lafarge North America, 12/11/13, contest proceeding, Docket No. CENT 2010-4-M