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Section: 56.14207
Date: 02/16/2011
District: NE
Negligence: High
Injury or Illness: Unlikely
Injury or illness could be expected to be: Lost Workdays or Restricted Only
Significant and Substantial: No

Condition or Practice: The foreman who is operating the #40608 Chevy 1500 pick up truck failed to set the parking brake when unattended. The hazard is the truck moving when unattended. This truck parks on level ground and has a automatic transmission. The foreman said he was in the spring thaw when the rules to live by were discussed. Foreman XXXXXXXXXX engaged in aggravated conduct constituting more than ordinary negligence in that he is a foreman and knows the standards. This violation is an unwarrantable to comply with a mandatory standard.

Action to Terminate: none listed

Why this concerns you: This citation has so many issues that it can be used as the "Poster Child" for what is wrong with the current attitude and gotcha mentality at MSHA. First of all the "truck parks on level ground and has a automatic transmission" Normally this would be not qualify as a 104d, but the inspector states that since the foreman attended a Spring Thaw and the rules to live by were discussed at this Spring Thaw, the foreman thus "engaged in aggravated conduct constituting more than ordinary negligence". Therefore a $100 penalty is now a $2,000 penalty since the foreman attended a Spring Thaw. It will be difficult for any operator to send his/her employees to any MSHA attended or hosted event for fear of increasing their exposure to higher negligence/liability and penalties for attending this voluntary event.

Abatement Suggestions From Industry

1) I have always been curious about the rates/incidents of vehicles with automatic transmissions rolling. Is there any data on this?

2) I would contest the citation simply to get MSHA in front of an ALJ, and then ask if the inspector has proof that the foreman was present when the "rules to live by" were discussed. Does MSHA have a signed document of attendees? Can MSHA prove the foreman didn't step out of the room to answer nature's call? Make a phone call?

3) What is the difference between attending a Spring Thaw (and thus, everything becomes unwarrantable failures to comply) and having a copy of the CFR on your desk? Aren't both, under MSHA's logic, enough to say "you should have known"? Thus, why does MSHA even bother with 104(a) citations? Shouldn't everything be immediate withdrawl orders, because management knows the rules, or should have known the rules, because they were published and available for years.
- posted on 02/18/2011

I hope your local congressman and Senator have received copies of this citation. This and the lack of MSHA participation here in Illinois' spring thaw shows that this is probably one less informative seminar for producers to mark on their calendars. If the motive to get operator's to attend these meetings is for MSHA to use against them in writing citations, count me out. It proves that MSHA is no longer interested in the safety side, but only enforcement.
- posted on 04/06/2011

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