<DOC>
[DOCID: f:c92334m2.wais]

 
FORT SCOTT FERTILIZER-CULLOR
August 3, 1995
CENT 92-334-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                            August 3, 1995

SECRETARY OF LABOR,          : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH     :
  ADMINISTRATION (MSHA),     : Docket No. CENT 92-334-M
               Petitioner    : A. C. No. 23-01924-05520
          v.                 :
                             : Fort Scott Fertilizer-
FORT SCOTT FERTILIZER-CULLOR : Cullor, Inc.
  INC.,                      :
               Respondent    :
                             :
SECRETARY OF LABOR,          : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH     :
  ADMINISTRATION (MSHA),     : Docket No. CENT 93-117-M
               Petitioner    : A. C. No. 23-01924-05523 A
          v.                 :
                             : Fort Scott Fertilizer-
JAMES CULLOR, Employed by    : Cullor, Inc.
  FORT SCOTT FERTILIZER-     :
  CULLOR, INC.,              :
               Respondent    :

                             DECISION

Appearances:   Margaret A. Miller, Esq., Office of the
               Solicitor, U.S. Department of Labor,
               Denver, Colorado, for Petitioner;
               Gary W. Cullor, President, Fort Scott
               Fertilizer-Cullor, Inc., and James Cullor,
               pro se, for Respondents

Before:  Judge Feldman

     These consolidated cases are before me as a result 
of petitions for civil penalties filed by the Secretary 
of Labor pursuant to sections 110(a) and (c) of the 
Federal Mine Safety and Health Act of 1977 (the Act), 
30 U.S.C.  820(a) and (c). The petitions charge the 
corporate respondent, Fort Scott Fertilizer-Cullor, Inc. 
(Fort Scott), with violations of four mandatory safety 
standards and James Cullor, as an agent of the corporate
respondent, with knowingly authorizing, ordering, or
carrying out two of these alleged violations.[1]

     These matters were heard on September 21, 1993, in 
Fort Scott, Kansas at which time the parties stipulated
that the respondents were subject to the provisions of 
the Mine Act.  The Secretary called former Fort Scott 
employees Raymond Jenkins, a truck mechanic, and truck 
drivers William Burris and Timothy Ragland.  Michael 
Marler, the issuing inspector, also testified on behalf 
of the Secretary.  Gary Cullor and his uncle, James 
Cullor, testified for the respondents.  The parties filed 
posthearing briefs.

                STATEMENT OF THE CASE

     These matters concern the following citation and 
orders issued to Fort Scott by Inspector Marler as a 
result of his May 27, 1992, inspection: 104(d)(1) Citation 
No. 4110164 for inoperable brakes on a 30 ton Euclid truck 
(big Euclid); 104(d)(1) Order No. 4110166 for a 
disconnected left front brake on a red Kline haulage 
truck; 104(d)(1) Order No. 4110167 for inoperable brakes 
on a 15 ton Euclid truck (small Euclid); and 104(d)(1) 
Order No. 4110171 for a broken leaf spring on a little 
Kline haulage truck.

     James Cullor was cited for knowingly authorizing or 
carrying out the violations in Citation No. 4110164 and
Order No. 4110167 by purportedly ignoring repeated 
complaints about malfunctioning brakes on the big and 
small Euclids by truck drivers Burris and Ragland.  Marler 
determined that brakes on the big Euclid driven by Burris 
and the small Euclid driven by Ragland could not hold the 
trucks on level ground.

     The respondents have stipulated to the fact of the 
defective brake conditions on the three trucks in issue 
and to the fact that there was a reasonable likelihood
that the hazards contributed to by these conditions could 
result in injuries of a reasonably serious nature.  
(Tr. 12-18, 195, 212). However, the respondents attribute 
the faulty brake systems to improper slack-adjuster 
settings on three of the four wheels on each of the three
cited trucks.  The respondents maintain that these 
adjustments were tampered with by Burris and Ragland who 
then reported the defective brake conditions to the Mine 
Safety and Health Administration (MSHA) on May 22, 1992, 
shortly before Marler's May 27, 1992, inspection.  Burris
and Ragland were terminated on June 1, 1992, because they 
did not have steel-toed boots.  (Tr. 164).  Both 
subsequently filed discrimination complaints pursuant to 
section 105(c) of the Mine Act.  On July 14, 1992, MSHA 
advised Fort Scott that it had determined that Burris and 
Ragland had not been discriminated against.[2]

     As noted herein, the testimony in this proceeding 
supports the respondents' contention that the brakes were 
tampered with.  Moreover, the Secretary's decision not to 
pursue related discrimination complaints on behalf of 
Burris and Ragland further support the respondents' 
position that the subject brake complaints were lacking 
in merit.  The remaining issue is whether employee 
misconduct for the sole purpose of imposing withdrawal 
and civil penalty sanctions on an operator is an 
affirmative defense given the strict liability nature of 
the Mine Act.

      PRELIMINARY FINDINGS OF FACT

     Gary Cullor is President of Fort Scott Fertilizer-
Cullor, Inc. (Fort Scott), a close corporation.  Cullor's 
wife, Sally Cullor, is Secretary and Treasurer of the 
corporation and is a 100 per cent shareholder.  The 
violations are alleged to have occurred on March 27, 1992, 
at Fort Scott's limestone quarry in El Dorado Springs, 
Missouri.  Fort Scott sold this facility to Ash Grove 
Cement Company in May 1993.

     William Burris and Timothy Ragland were employed by 
Fort Scott as quarry truck drivers at its El Dorado 
Springs limestone facility.  Burris was hired on September 
16, 1991. Ragland was hired on March 26, 1992.  Both 
Burris and Ragland are qualified interstate truck drivers.  
Each holds a certified commercial driver's license (CDL) 
in the State of Missouri.  As CDL licensees, they are 
required to be familiar with the operation and maintenance 
of trucks, including truck braking systems. 
(Tr. 90-92, 152-153).

     Burris and Ragland became upset over the subsequent 
hiring of Jerry Carpenter who, in addition to other 
duties, was a welder.  Carpenter's salary was higher than 
the wages of Burris and Ragland.  (Tr. 166).  Burris 
"thought it was wrong" and that he "deserved more 
[money]"  (Tr. 118). Ragland also did not "think 
[Carpenter's higher salary] was right."  (Tr. 166).  
Burris and Ragland knew that Fort Scott had to timely 
complete its performance on a state job that it had bid 
for.  (Tr. 117, 166).  Threats were made concerning some 
type of action if they did not receive a raise.  
(Tr. 168).  Specifically, Ragland testified:

     Q.  You know Jerry Carpenter?  Do you remember Jerry
         Carpenter that was hired at the quarry?

     A.  I think so.

     Q.  Do you remember an incident where he was hired 
         and apparently somebody found out about what the 
         pay rates was (sic) he got and several of you 
         were upset about what he was getting paid?

     A.  I don't see what that's got to do with this?

     Q.  Do you remember that?

     A.  Yes, I do.

     Q.  Do you remember you and Bill and a couple of
         others wanting more money because he was getting
         paid more?

     A.  Well, we really didn't go to that extreme on it, 
         no, but, yeah, I didn't think it was right, 
         because he came to work there after we did.

     Q.  But you did ask for more money?

     A.  Yeah, we did.

     Q.  Do you remember at the same time referring that
         things could get awful slow around there as far 
         as getting anything done or on our state project 
         and equipment could break down?

     A.  I never said nothing like that, no.

     Q.  You don't remember anybody else saying anything 
         like that?

     A.  I can't speak for other people.

     Q.  Do you remember anybody saying that?

     A.  I can't tell you that.  I don't know.

            THE COURT:  Mr. Ragland, that's not the
            question he asked you.  He asked you did you 
            ever hear anybody say that?

            THE WITNESS:  Oh, they was always shooting 
            crap about something, you know.  It was just 
            kind of like doing carpenter work, you know, 
            it's just one of them deals where everybody 
            goes hem-hawing around, talking about what 
            they'd do, but, no, I can't say that I just 
            heard a bunch of people going on about it, no.

            THE COURT:  Would you please restate the 
            question? I don't know if I got an answer.

     Q.  (By Mr. Gary Cullor)  Did you hear any comments 
         from anybody, without naming names, referring to
         the fact that if we didn't receive more wages, 
         there could be a work slowdown or that equipment 
         could break down?

     A.  Not --

     Q.  Equipment could break down a lot?

     A.  Not in them words, no.

     Q.  But something similar to that?

     A.  It was more like there just wasn't nobody going 
         to come back out there is what it was more than 
         anything. I don't remember them saying anything
         about that, no. They were talking more kind of 
         like strike features than they were demolishing 
         anything.

     Q.  There would be some implications that there 
         would be some type of action taken if they didn't
         get a raise?

     A.  I guess you could probably put it that way.
         (Tr. 166-168).

     Burris and Ragland requested a pay raise.  (Tr. 118, 
166). They received a small pay raise on May 18, 1992.

     On Friday, May 22, 1992, Ragland telephoned the MSHA 
office and spoke to Inspector Marler's supervisor.  At 
that time, Ragland requested an MSHA inspection because 
the quarry trucks reportedly had no brakes.  
(Tr. 96, 165, 259, 278-279).  Burris knew an inspector 
would soon inspect the El Dorado Springs facility.  
(Tr. 96).  However, Burris testified that he did not 
experience brake problems on the days immediately preceed-
ing Marler's May 27, 1992, inspection.  (Tr. 106).

     Burris and Ragland started hauling mud and water out 
of the quarry pit at approximately 8:00 a.m. on Wednesday, 
May 27, 1992.  Burris was driving the big Euclid, Ragland 
was operating the small Euclid and Derek Edmiston was 
driving the red Kline haulage truck.  (Tr. 88).  Burris, 
Ragland and Edmiston made several trips into the pit to 
haul mud between 8:00 a.m. and 9:00 a.m.  During this 
period, the red Kline and the small Euclid became stuck 
in the mud.  (Tr. 96, 287-288).  Normal quarry operations 
were then suspended at approximately 9:00 a.m. because the
high loader was experiencing steering problems. 
(Tr. 31, 184). Contemporaneous with the high loader 
breakdown, Burris and Ragland complained to James Cullor 
that their truck brakes were not working.  James Cullor 
stated that he did not observe any brake problems prior 
to Marler's inspection. (Tr. 289-290).    However, Cullor 
told Burris and Ragland to park their trucks by the work 
shed so that the trucks could be checked out.  (Tr. 287).

     Marler testified that he arrived at the quarry at
approximately 10:00 a.m., shortly after the trucks were
taken out of service because of the high loader 
malfunction (Tr. 184, 258).  Marler asked to talk to the 
drivers of the haulage trucks  (Tr. 186).  Marler spoke 
to Burris who told him that the big Euclid's brakes would 
not hold going down into the quarry.  Burris stated that 
he had told Jim Cullor who reportedly told Burris to keep 
driving and not to complain so much about the equipment.  
(Tr.186).  Marler tested the big Euclid and determined
that the brakes would not hold the truck in gear on level 
ground.  Therefore, Marler issued 104(d)(1) Citation 
No. 4110164 citing a violation of the mandatory standard
in section 56.14101, 30 C.F.R.  56.14101 for defective 
brakes on the big Euclid.

     Marler also spoke to Ragland who complained about 
the brakes on the small Euclid.  (Tr. 215).  Consistent 
with Burris' complaint, Ragland informed Marler that he 
had reported the brake problems to James Cullor who did 
nothing about it. (Tr. 216).  Marler determined that the 
brakes would not stop the small Euclid on a 6 percent 
grade, even when unloaded. Consequently, Marler issued 
104(d)(1) Order No. 4110167 citing a violation of section 
56.14101 for ineffective brakes.

     Marler also sought to inspect the red Kline haulage 
truck. Marler asked to speak to Burris about the condition 
of the truck as he was advised that Burris was the usual 
operator of this vehicle.  Burris advised Marler that he 
had disconnected the front left brake after he told James 
Cullor that the brake was locking up and causing the truck 
to pull. (Tr. 235-236).  Based on the information provided
by Burris, Marler issued 104(d)(1) Order NO. 4110166 
citing the mandatory safety standard in section 
56.14101(a)(3) for failing to maintain the left front 
brake in a functional condition.

     Finally, Marler observed a broken left front leaf 
spring on the little Kline haulage truck.  The spring had 
eight to nine leaves, of which four or five were broken.  
The broken spring allowed the front to sag to the point 
where the tire was almost touching the fender on the left 
side. Consequently, Marler issued 104(d)(1) Order 
No. 4110171 citing a violation of the mandatory safety 
standard in section 56.14100(c) for the continued use of 
defective and hazardous equipment.

                   FURTHER FINDINGS AND CONCLUSIONS

     The Secretary seeks to impose civil penalties on the
corporate respondent as well as James Cullor, as an
individual, based on the ineffective breaking systems on 
the big and small Euclid trucks.  Although there were 
several maintenance problems on these trucks that 
required attention, items requiring preventative 
maintenance, eg., brake shoe replacement, must be 
distinguished from the primary cause of the brake system 
failure.[3]

     In the case at bar, Raymond Jenkins testified on 
behalf of the Secretary that there were loose slack 
adjusters on three of the four wheels on the big and small 
Euclid trucks and on the red Kline truck.  Slack adjusters 
are located on the inside of each wheel.  They consist of 
a bolt that can be tightened with an ordinary wrench.  In 
view of the large diameter of the truck tires, slack 
adjusters can be easily tightened from a squatting 
position without removing the wheels.  (Tr. 50)  Properly 
adjusted, they are fully tightened and then turned back 
one-half turn.  (Tr. 51).

     If slack adjusters are not properly tightened, they 
prevent the brake shoe from contacting the brake drums.  
(Tr. 206). The slack adjustment procedure was described 
by Jenkins as being "real easy" (tr. 49); "a minute" to 
adjust (tr.50-51); and "there ain't nothing to it, 
really." (Tr. 36).  Marler testified that anyone could 
walk up to [a slack adjuster] with a wrench and change 
[it] if they want."  (Tr. 221). Jenkins found loose slack 
adjusters on the big and small Euclid trucks 
(Tr. 32-36, 37-38, 48-49).  Marler testified that the 
slack adjusters were loose, but not loose enough to
prevent the shoes from contacting the drums (Tr. 206).
Marler also stated that it was not determined whether the
slack adjusters were out of adjustment.  (Tr. 229).
Jenkins, however, opined that the major reason why the
brakes could not hold the Euclid trucks on grade was the
loosened slack adjusters.  (Tr. 38-39, 48).  Jenkins'
opinion is consistent with Marler's testimony that slack
adjusters can be loosened to the point where they would
render the brakes ineffective.  (Tr. 221-222). 
Significantly, Jenkins testified that neither Burris nor
Ragland ever complained to him about brake problems.  (Tr.
70).  Therefore, I credit the testimony of truck mechanic
Jenkins that the primary brake defects on the Euclid 
trucks driven by Burris and Ragland were the loosened 
slack adjusters.

     Having concluded that the slack adjusters were the 
primary cause of the Euclid brake malfunctions, I now 
address the respondents' allegations of tampering.  
Although Burris initially denied familiarity with slack 
adjusters, both Burris and Ragland conceded that they 
knew how to make such adjustments. 
(Tr. 87, 92, 152-154, 168, 200).  Jenkins and Marler
testified that it is not uncommon for truck drivers to
adjust slack adjusters.  (Tr. 26-27, 36-37, 221). 
Although Marler did not observe any recent wrench marks on
the slack adjuster bolts, he conceded that mud would cover 
any recent evidence of tampering.  (Tr. 262-263).  
Significantly, Marler stated that slack adjusters are one 
of the first things checked by qualified, experienced 
truck drivers in the event of brake problems.  
(Tr. 199-200, 228-229).  Yet, Burris and Ragland continued 
to operate trucks without brakes without checking these 
adjusters.  Marler testified that a competent driver could
conceal an inoperable brake condition by operating a truck 
with defective brakes in the quarry by downshifting.  
(Tr. 256, 264).

     Thus, the evidence reflects that Burris and Ragland 
were disgruntled employees; threats had been made about
disrupting quarry operations; Ragland complained to MSHA;
Burris and Ragland were anticipating Marler's inspection;
there was a pattern of loosened slack adjusters on three 
of four wheels on three quarry trucks that is indicative 
of tampering; Burris and Ragland had access to these 
slack adjusters; although slack adjusters loosen over 
time, there is no evidence of inoperable breaks on the 
days preceding Marler's May 27, 1992 inspection; and 
Burris and Ragland operated their trucks without brakes 
without checking the condition of the slack adjusters.  
Under these circumstances, I conclude that there is 
sufficient circumstantial evidence that supports the 
respondents' contention that brake tampering occurred.

     Moreover, the Secretary's decision not to pursue the
discrimination complaints of Burris and Ragland because 
the Secretary's investigation revealed that they "were 
not discriminated against" further supports the 
conclusion that the brake complaints in this matter were 
not legitimate. Under these circumstances, even counsel 
for the Secretary conceded that the Secretary's case is 
apparently inconsistent with his own investigation.  
(Tr. 130-131).  The record was left open for submission 
of the pertinent discrimination investigation findings.  
(Tr. 129, 141).  However, the Secretary has declined to 
submit this information.  Consequently, the refusal of the
Secretary to submit this relevant investigatory report 
creates the inference that this report would be adverse to
the Secretary's case.[4]  See NLRB v. Dorn's
Transportation Co., 405 F.2d 706, 713 (2d Cir. 1969). 
While the adverse inference to be drawn is not dispositive,
it is consistent with other evidence of record and it is of
significant evidentiary value.[5]

     Having concluded that the brakes were tampered with, 
I turn to the novel question of whether such employee 
misconduct is an affirmative defense to the pertinent 
citations in issue. While employee misconduct is relevant 
as a mitigating factor in reducing a civil penalty, it is 
ordinarily not a defense to a citation given the strict 
liability imposed under the Mine Act.  Southern Ohio Coal 
Company, 4 FMSHRC 1459 (August 1982).  It is fundamental 
that strict liability is imposed on operators to 
encourage mine safety even if the hazard contributed to 
by the violation resulted from the employee's misconduct.

     Thus, the Commission has consistently rejected 
arguments by operators that they are not liable for the 
unauthorized or careless actions of miners.  See A.H. 
Smith Stone Company, 5 FMSHRC 13 (January 1983); Southern 
Ohio Coal Company, 4 FMSHRC at 1462-64; Sewell Coal Co. v.
FMSHRC, 686 F.2D 1066, 1071 (4th Cir. 1982); Allied 
Products Co. v. FMSHRC, 666 F.2d 890, 893-94 
(5th Cir. 1982).  These cases recognize and are consistent 
with the ultimate goal of the Mine Act which is to 
encourage safety and avoid risk.  In this case, however, 
employees attempted to use the Mine Act to create risk by 
disabling brakes.  Such acts of sabotage can not be 
equated with the unauthorized or careless acts in the 
above cited cases.  Acts of sabotage subvert the purpose 
of the Mine Act and must not be given effect.

     In reaching this conclusion, I am aware that the 
Secretary argues that, if tampering occurred, a de 
minimus civil penalty must be imposed for a technical 
violation of safety standards. I decline to elevate form 
over substance which, in this case, would contravene 
legislative intent.  Rather, I conclude that tampering has 
occurred and that such tampering is a defense to Citation
No. 4110164 (the big Euclid) and Order No. 4110167 (the 
small Euclid).  Consequently, Citation No. 4110164 and 
Order No. 4110167, issued to Fort Scott and James Cullor, 
as agent, shall be vacated. Therefore, Docket No. 
CENT 93-117-M concerning James Cullor's personal liability
under section 110(c) of the Mine Act must be dismissed.

     With respect to Order No. 4110166 issued for the
disconnected left front brake on the red Kline truck, I 
note that Burris has admitted disconnecting the brake.  
James Cullor denies any knowledge of Burris' action.  
Given my findings in this proceeding, I credit the 
testimony of James Cullor on this issue.  Jenkins 
testified that a truck with a disconnected brake could not 
"stop as good."  (Tr. 39-40) The evidence reflects that 
this brake was disconnected for a considerable period of 
time and that this action was not taken for the sole 
purpose of reporting it to Marler. Therefore, there is no 
defense to this citation. Fort Scott has stipulated to 
the significant and substantial nature of poor brakes on 
a quarry truck.  However, I am unable to find any 
unwarrantable failure as I have found no knowledge of
this condition on the part of the respondent.  Therefore, 
I am modifying Order No. 4110166 to a significant and
substantial 104(a) citation and I am removing the 
unwarrantable failure charge.  Given the circumstances of
this case and considering the criteria in section 110(i) 
of the Mine Act, I am assessing a civil penalty of 
$150.00.

     Finally, Order No. 4110171 was issued for a broken 
left front leaf spring on the little Kline truck.  
Marler's testimony that the tire was almost touching the 
left front is consistent with the photograph of the little 
Kline truck placed in evidence.  (P. Ex. 10).  I reject 
Gary Cullor's assertion the spring's primary purpose is 
for driver comfort.  Rather, I accept Marler's analysis 
that this condition posed a serious risk in that the 
driver could lose control of the truck and sustain serious 
injury.  Therefore, I conclude that this violation was 
properly characterized as significant and substantial as 
there is a reasonable likelihood the hazard contributed
to, i.e., loss of control, will result in an injury of a 
reasonably serious nature given continued use of the truck 
in frequently muddy conditions.  Mathies Coal Co., 
6 FMSHRC 1, 3-4 (January 1984).  With respect to the issue 
of unwarrantable failure, I note that the photograph 
illustrates that the defective spring was obvious in that 
the truck was listing to the left side.  Fort Scott's 
continued use of this vehicle in its readily apparent 
defective state constitutes an unwarrantable failure.  
Given the serious gravity of this violation, I am 
modifying this Order to a 104(d)(1) citation and assessing
a civil penalty of $400.00.

     ORDER

     1.  Accordingly, Citation No. 4110164 and Order No. 
     4110167 ARE VACATED.

     2.  Order No. 4110166 is modified to a significant 
     and substantial 104(a) citation thus removing the 
     unwarrantable failure charge and IS AFFIRMED as 
     modified.

     3.  Order No. 4110171 is modified to a 104(d)(1) 
     citation and IS AFFIRMED as modified.

     4.  The case against James Cullor, as an agent of 
     Fort Scott Fertilizer-Cullor, Inc., in Docket No. 
     CENT 93-117-M IS DISMISSED.

     5.  Fort Scott Fertilizer-Cullor, Inc., IS ORDERED 
     to pay a total civil penalty of $550.00 within 30 
     days of the date of this decision, and, upon receipt 
     of payment, Docket No. CENT 92-334-M IS DISMISSED.


                                Jerold Feldman
                                Administrative Law Judge
                               

Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U. S.
Department of Labor, 1961 Stout Street, Room 1585, Denver,
CO 80294 (Certified Mail)

Gary W. Cullor, President, Fort Scott Fertilizer-Cullor, 
Inc., 20th & Sydney, Fort Scott, KS 66701 (Certified Mail)

Mr. James Cullor, Fort Scott Fertilizer-Cullor, Inc., 
20th & Sidney, Fort Scott, KS 66701 (Certified Mail)

/ll


**FOOTNOTES**

     [1]: Section 110(c) of the Act provides, in pertinent 
part, that agents of corporate operators who knowingly 
authorize, order or carry out violations of mandatory 
safety standards are subject to the same civil penalties 
that may be imposed on the corporate operator.

 The record was left open for Gary Cullor to submit 
copies of MSHA's discrimination determinations.  Pursuant 
to my request, Cullor submitted this information on 
September 27, 1993.  These fn. 2 documents have been 
identified and admitted into evidence as Respondents' 
Ex. 1. (Tr. 129, 141).

 For example, an inspection of the small Euclid with the 
wheels removed revealed a sticking left s-cam shaft and a
broken ear on a right front cam support.  Similar 
inspection of the big Euclid revealed a right rear leaking 
axle seal and a brake shoe lining pulled from the left 
rear brake shoe.  (P Ex.2; Joint Ex. 2). However, I credit 
the testimony of Jenkins that these conditions were not 
the primary cause of the inoperable brakes on the Euclid
trucks.  (Tr. 38-39, 225-226).

 Obviously, it is not appropriate to draw an adverse 
inference against a miner prosecuting a dicrimination 
complaint on his own behalf under section 105(c)(3) of 
the Mine Act when the Secretary, an entirely different 
party, elects not to bring a discrimination action under 
section 105(c)(2) of the Act.  In this case, however, the 
Secretary is the party prosecuting this civil penalty 
proceeding.  The Secretary's failure to bring discrimina-
tion actions on behalf of Burris and Ragland after they
were terminated only days after filing the pertinent brake
complaints with MSHA, in the absence of any explanation by
the Secretary, permits the inference that the Secretary's
investigation failed to support the validity of these
brake complaints.

 I am sensitive to the Secretary's desire to protect
confidentiality.  However, it is no secret in this case 
that complaints were filed with MSHA.  The Secretary has 
made no effort to explain its investigation results and 
subsequent decision not to pursue discrimination cases.  
Such an explanation could be provided without violating 
confidential sources, if any.