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

 
FAITH COAL COMPANY
August 6, 1997
SE 91-97

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006

                          August 6, 1997

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :
          v.                      :  Docket No. SE 91-97, etc.
                                  :
FAITH COAL COMPANY                :

BEFORE:  Jordan, Chairman; Marks, Riley, and Verheggen,
         Commissioners

                            DECISION

BY:  Jordan, Chairman; and Marks, Commissioner

     These civil penalty proceedings arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994)
("Mine Act" or "Act").  At issue is whether Faith Coal Company
("Faith") violated 30 C.F.R.  75.202(a) by failing to properly
support the roof in an area where a person or persons worked or
traveled; whether a citation alleging that Faith improperly
operated a scoop loader with an inoperative methane monitor was
properly vacated on the ground that the citation alleged a
violation of the wrong standard and was never amended to allege a
violation of the correct standard; whether Faith violated 30
C.F.R.  75.220 by failing to comply with a supplemental
requirement of its roof control plan to set cribs prior to
splitting a pillar; whether Faith's violation of section 75.220,
involving cuts of excessive length and a crosscut driven into an
area of unsupported roof, was the result of its unwarrantable
failure to comply with its roof control plan; and whether Faith
violated 30 C.F.R.  75.203(b) by failing to use sightlines to
control the direction of mining.  Administrative Law Judge David
Barbour concluded that the Secretary of Labor had not established
a violation of section 75.203(b); that Faith had committed a
violation of section 75.202(a); and that Faith had committed two
significant and substantial ("S&S") violations of section 75.220,
one of which was also unwarrantable.  17 FMSHRC 1146, 1155-56,
1190-91, 1195-97, 1202 (July 1995) (ALJ).  The judge also vacated
the citation involving the inoperable methane monitor on the
ground that it alleged a violation of the wrong standard.  Id. at
1183, 1224.  The Commission granted cross-petitions for
discretionary review filed by the Secretary and Faith challenging
these determinations.[1]  For the reasons that follow, we affirm
in part, reverse in part, and remand.

                                I.

                      Citation No. 3396045

     A.   Facts and Procedural Background

     Faith formerly operated the No. 15 Mine, an underground coal
mine in Sequatchie County, Tennessee.  17 FMSHRC at 1148-49;
Gov't Ex. 4 at 1.  On March 2, 1992, Inspector Clyde Layne from
the Department of Labor's Mine Safety and Health Administration
("MSHA") inspected an entry at the No. 15 Mine that was being
cleaned for the installation of a belt conveyor.  17 FMSHRC at
1154.  Layne observed an area of roof where the spacing of roof
bolts exceeded the 5-foot limit specified in Faith's roof control
plan.  Id.  Several roof bolts were placed as far as 9 feet
apart.  Id.[2]  Although the area had a low ceiling, and thus
could only be traveled by crawling, Layne observed tracks on the
floor indicating that people had traveled through the area.  Id.
Layne issued a citation alleging a violation of section
75.202(a).[3]  Id.; Tr. III at 568-69; Jt. Ex. 16.[4]

     The judge concluded that the Secretary had established a
violation of section 75.202(a) by demonstrating that the roof was
not properly supported in an area of the mine where a person or
persons worked or traveled.  17 FMSHRC at 1155-56.  The judge
relied upon admissions by Lonnie Stockwell, Faith's owner, that
he traveled through the area and that the roof bolts in the area
were not spaced as required by Faith's approved roof control
plan.  Id.

               B.   Disposition

     Faith contends that the judge erred in finding a violation
of section 75.202(a) because Stockwell only traveled into the
affected area on one occasion in order to comply with applicable
MSHA preshift requirements.  F. Br. II at 8-9.[5]  The Secretary
argues that the judge's finding of a section 75.202(a) violation
is supported by substantial evidence.  S. Br. II at 18-19.[6]

     We conclude that the judge's factual findings are supported
by substantial evidence,[7] and affirm his conclusion that Faith
violated section 75.202(a).  It is undisputed that the spacing of
the roof bolts in this area of the mine exceeded the five foot
limit specified in Faith's roof control plan.  Therefore, the
dispositive issue is whether persons worked or traveled in the
area.  Stockwell testified that he crawled through this area on
at least one occasion, when Faith began rehabilitating the entry.
17 FMSHRC at 1155.  Even assuming that, as Stockwell suggested,
he was the only person to travel through this area, this
admission is sufficient to establish a violation.  The fact that
Stockwell may have traveled through the area in order to comply
with preshift inspection requirements does not create a basis for
an exemption from the requirements  of section 75.202(a).

**FOOTNOTES**

     [1]:   In  its petition for discretionary review, Faith also
raised an issue with  respect to a  recommendation for settlement
suggested by the judge  concerning  a  reduction in the amount of
penalties assessed against it.  17 FMSHRC  at 1207; F. Pet. at 1-
5.  The judge's suggestion, which was gratuitous and not binding,
was  rejected  by  counsel  for  the  Secretary as  a  basis  for
settlement.  Accordingly, this issue is  not  before  us  and  we
decline to address it.

     [2]:   These  roof  bolts  had  been installed by a previous
operator of the mine.  17 FMSHRC at 1154.   When  Faith took over
the  operation  of  the  mine,  this area had been "gobbed  out,"
making travel through it impossible.   Id.   Faith  later cleared
away the gob material, making the area passable.  Id.

     [3]:  Section 75.202(a) provides:

          The  roof,  face  and  ribs  of  areas  where
          persons work or travel shall be supported  or
          otherwise  controlled to protect persons from
          hazards related to falls of the roof, face or
          ribs . . . .

     [4]:  The hearing  in these consolidated cases was conducted 
on May  23-26,  1994, and on August 9-10,  1994.   The following 
references  are used to refer to  the  transcripts  from  the
designated  hearing dates:  "Tr. I" - May 23; "Tr. II" - May  24;
"Tr. III" - May 25; "Tr. IV" - May 26; "Tr. V"  - August 9; "Tr. 
VI" - August 10.

     [5]:  "F. Br." refers to Faith's  brief concerning issues
raised in the Secretary's petition for discretionary review,
which was  received  by the  Commission on February 1, 1996.
"F. Br. II" refers  to  the  brief  filed by Faith on
July 27, 1996, in response to the Secretary's brief dated
June   17,   1996.    Faith   had  previously designated 
its  petition  as  its  brief  on review.    Faith   is 
represented  in   this proceeding  by its owner,  Lonnie
Stockwell, without the assistance of counsel.

     [6]:  "S. Br." refers  to  the  brief filed by the
Secretary  on  October  18,  1995,  involving issues 
raised   in   her   petition    for discretionary  review. 
"S. Br. II" refers to the brief filed  by the Secretary 
on June 17, 1996, concerning issues  raised  by  Faith in
its petition.

     [7]:  The Commission is bound by the terms  of the
Mine  Act  to  apply the substantial evidence test  when 
reviewing  an  administrative  law  judge's  factual 
determinations.  30 U.S.C.  823(d)(2)(A)(ii)(I). The 
term "substantial evidence"  means "such relevant 
evidence as a reasonable mind  might  accept as adequate 
to support [the judge's] conclusion."  Rochester & 
Pittsburgh Coal Co., 11  FMSHRC  2159, 2163
(November 1989) (quoting Consolidated  Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)).

                               II.

                      Citation No. 3202337

     A.   Factual and Procedural Background

     On June 7, 1993, MSHA Inspector Johnny McDaniel observed
that a scoop loader loading coal at the No. 15 Mine did not
appear to have an operative methane monitor.  17 FMSHRC at 1182;
Tr. II 412-14.  When McDaniel tested the monitor with the test
button, the loader did not deenergize, confirming that the
monitor was not operating properly.  17 FMSHRC at 1182; Tr. II
413.  Faith owner Stockwell later arrived on the scene and
explained to McDaniel that the monitor had been "jumped out,"
meaning that the monitor's shut-off mechanism had been bypassed
electronically to allow the loader to operate regardless of
whether methane was present. 17 FMSHRC at 1182.

     McDaniel issued a citation alleging that Faith used a scoop
loader without a functioning methane monitor to load coal, in
violation of 30 C.F.R.  75.313.  Id. at 1181-82; Tr. II at 411-
12; Jt. Ex. 62.  This citation alleged a violation of the wrong
standard, however, since section 75.313, which had previously
applied to methane monitors (see 30 C.F.R.  75.313 (1991)), had
been amended in November 1992 to apply to mine fan stoppages when
persons are underground.  At that time, MSHA renumbered the
methane monitor provision as 30 C.F.R.  75.342(a).[8]  This
error in citing an inapplicable standard was not addressed at the
hearing, and was perpetuated in the Secretary's post-hearing
brief to the judge.  See S. Post-Trial Br. at 145.

     The judge vacated this citation on the ground that it
alleged a violation of the wrong standard, and was never modified
to allege a violation of the correct standard.  17 FMSHRC at
1183.  The judge found that the Secretary had not established a
violation of section 75.313, the mine fan stoppage standard
referred to in the citation.  Id.  Noting that the citation was
based upon an allegedly inoperable methane monitor on the loader,
which falls within the coverage of section 75.342(a)(4),[9] the
judge found the citation defective because it did not allege a
violation of the proper standard.  Id.  The judge vacated the
citation based upon the "axiom of due process that a respondent
must be advised correctly of the standard it is alleged to have
violated."  Id.

     B.   Disposition

               The Secretary asserts the judge erred because the record
establishes that Faith had actual notice of the violative conduct
and standard alleged and therefore it was not prejudiced.  S. Br.
at 17-21.  The Secretary further asserts that Faith in effect
conceded this violation when Stockwell testified that he
deliberately "jumped out" the methane monitor on the scoop loader
to permit the machine to operate.  Id. at 18, 20-21.

     Faith contends that the citation was properly vacated by the
judge because it alleged a violation of the wrong standard, and
the Secretary failed to amend the citation to cite the correct
standard.  F. Br. at 16-17.  Faith also contends that its use of
a scoop loader with an inoperable methane monitor did not violate
section 75.342(a) because it was not using the scoop loader to
load coal at the time the citation was issued.  Id. at 16-20.

     There is no question that the Secretary erred by failing to
move to amend the citation to charge a violation of the correct
standard either at trial or in a post hearing submission.  We
expect the Secretary and her counsel not only to know the content
of regulations promulgated and enforced by the Department of
Labor, but to submit only the most careful and accurate pleadings
in litigation before this Commission.  Here, the Secretary's
error is particularly egregious in light of the fact that
renumbering of the regulation addressing methane monitors was
announced in a final rule over two and a half years before the
Secretary's post-hearing brief was filed on December 7, 1994, a
brief which, as noted above, perpetuated the error of citing an
inapplicable standard.  See 57 Fed. Reg. 20,868 (May 15, 1992
publication of final rule amending Part 75, Subpart D); see also
57 Fed Reg. 34,683, 34,684 (August 6 notice announcing delay of
effective date of final rule from August 16 until November 16,
1992 "to ensure that mine operators can effectively plan and
implement the necessary changes").

     The first indication in the record that anyone was aware of
the Secretary's error appears in the judge's decision.  When he
discovered the Secretary's error, the judge should have issued an
order directing the Secretary to show cause why the citation
should not be amended to conform to the evidence and charge a
violation of the applicable standard.  This would have afforded
Faith  the opportunity to show legally recognizable prejudice.
More importantly, it probably would have resolved this question
at an earlier stage of these proceedings, and thus, would have
avoided the need for further proceedings and delay.

     The judge's failure to make this inquiry, however, does not
require that we remand to correct this particular error.
Instead, we conclude that Faith suffered no prejudice because the
company fully understood the gravamen of the violation charged
and knowingly litigated the citation on that basis, and we
further conclude that the judge erred by vacating the citation on
the basis of the Secretary's pleading error.

     This result is in accord with Rule 15(b) of the Federal
Rules of Civil Procedure, which provides for conformance of
pleadings to the evidence adduced at trial, and permits the
adjudication of issues actually litigated by the parties
irrespective of pleading deficiencies.[10]  Here the record
demonstrates that Stockwell, who represented Faith during most of
the hearing, understood the nature of the violation charged and
litigated the case on that basis.  See Tr. II 412-28.  Indeed, at
the hearing, Stockwell sought to develop a defense - that the
loader was not used to load coal while the methane monitor was
not functioning - that is consistent with the language of section
75.342(a), the applicable standard.  Tr. II 425-26.  There is no
indication in the record that Stockwell thought the citation
related to mine fan stoppages, the subject of the amended version
of section 75.313.  Accordingly, we reverse the judge's decision
to vacate this citation on procedural grounds, and remand for a
determination of whether Faith's operation of the loader violated
section 75.342(a)(4).

                               III.

                      Citation No. 3024814

     A.   Factual and Procedural Background

     On March 17, 1993, during an inspection of the mine, MSHA
Inspector Layne visited a crosscut on the right side of the belt
line where five miners were working.  17 FMSHRC at 1186.
Immediately adjacent to the crosscut, the beltline had been
driven through a pillar, splitting the pillar, even though cribs
had not previously been installed in that area as required by
Faith's roof control plan.[11]  Id. at 1186-87.  Stockwell told
Layne that cribs were not installed in the area because, if they
had been, there would not have been enough room to haul gob
material and equipment through the area.  Id. at 1187.  Layne
issued a citation to Faith alleging an S&S violation of section
75.220[12] for not complying with the requirement of the roof
control plan that cribs be installed before splitting the pillar.
 Id. at 1186-87; Tr. VI 207-08; Jt. Ex. 51.

     At the hearing, counsel for the Secretary moved to apply the
doctrine of res judicata to establish this and two other alleged
violations (Citation No. 3202244 and Order No. 3202245, discussed
infra), and to bar Faith from raising any related defenses, based
upon a decision issued by U.S. Magistrate Judge John Y. Powers of
the U.S. District Court for the Eastern District of Tennessee in
September 1993 in a probation revocation proceeding involving
Stockwell.  17 FMSHRC at 1188-89.  This proceeding was the
byproduct of an earlier criminal case resolved in June 1992 in
which Stockwell pled guilty to two counts of violating the Mine
Act, and was sentenced to three years' probation and assessed a
$1,500 fine.  Id. at 1188 (citing United States v. Lonnie Ray
Stockwell, No. 92-074M (E.D. Tenn. June 24, 1992)).  As a
condition of his probation, Stockwell was ordered to refrain from
any "serious unwarrantable" violations of the Act pertaining to
roof support and ventilation.  17 FMSHRC at 1188.

     In May 1993, Stockwell was ordered to show cause why his
probation should not be revoked.  Id.; Tr. V at 22.  The order
was supported by a report from Stockwell's probation officer
stating that Stockwell had been cited for several unwarrantable
violations.  17 FMSHRC at 1188.  The report identified eight such
violations, including this and two other alleged violations
involved in this proceeding.  Id.; Tr. V 22-25.  Magistrate
Powers held a probation revocation hearing at which MSHA
inspectors testified.  17 FMSHRC at 1188.  Following the hearing,
the magistrate issued a memorandum and order which states:

               Having heard all of the witnesses and
          argument[s] of counsel . . . it is concluded
          and the [magistrate] finds serious life
          threatening violations of the [Mine Act]
          including but not limited to the conduct of
          mining well beyond the 12-foot limit beyond
          roof support were committed or caused to be
          committed by the defendant in late 1992 and
          early 1993 in . . . Faith Coal Company Mine #
          15 . . . .

Id. at 1188-89 (quoting United States v. Lonnie Ray Stockwell, No. CR-1-92-
33, slip op. at 3 (E.D. Tenn. Sept. 16, 1993)).  As a result, the
magistrate revoked Stockwell's probation and sentenced him to six
months in prison.  17 FMSHRC at 1189.  Subsequently, the judge
denied Stockwell's motion for a new trial, and no further appeal
was taken.  Id.

     At the hearing, the Secretary's counsel argued that the
magistrate's decision in the probation revocation proceeding
amounted to a finding that Faith had committed the three
violations at issue here.  Tr. V 35.  In a bench ruling, the
judge denied the Secretary's res judicata motion, concluding that
he could not determine from the memorandum and order that the
magistrate had made a finding that the three alleged violations
had occurred as charged.  17 FMSHRC at 1189.  The judge also
noted that the magistrate had apparently taken no evidence and
made no findings with respect to negligence and gravity - factors
relevant in determining whether the violation was unwarrantable
or S&S.  Id. at 1190.

     In his decision, the judge reaffirmed his bench ruling
denying the Secretary's res judicata motion for the reasons he
had provided at the hearing.  Id. at 1189-90.  The judge
explained that, for the res judicata doctrine to apply, the
issues for which preclusion is sought must be identical to the
issues decided in the first action, in this case the probation
revocation proceeding.  Id. at 1190.

     The judge then concluded that Faith had committed an S&S
violation of section 75.220 by failing to comply with the
requirement of its roof control plan that cribs be set, where
practical, prior to splitting a pillar.  Id. at 1190-91.  The
judge rejected Stockwell's testimony that it was not practical
for Faith to install cribs in this crosscut area because there
would not have been sufficient clearance to use the area as a
passageway for hauling gob and the crosscut could not have been
used as an escapeway.  Id. at 1190.  The judge noted that Faith
could have used other available areas to dump the gob and thereby
avoided travel through this area and that, contrary to Faith's
contention, the crosscut could have been part of a valid
escapeway even if cribs had been installed.  Id.

               B.   Disposition

     Faith asserts that the judge's finding of a section 75.220
violation is not supported by substantial evidence because the
record indicates that it did install cribs in the last open
crosscut as required by the roof control plan and that additional
roof support was not necessary in the area of the split pillar
referred to in the citation.  F. Br. II at 4-5.  Faith also
contends that the judge properly denied the Secretary's motion to
apply the res judicata doctrine to establish this and two other
alleged violations based upon the results of the probation
revocation proceeding because the issues presented and decided in
that proceeding were not the same as those involved here.  Id. at
5-7.

     The Secretary argues that substantial evidence supports the
judge's finding that Faith violated section 75.220 because the
testimony of Inspector Layne establishes that Faith failed to
install the cribs required by its roof control plan before mining
through the pillar in the last open crosscut in the area.  S. Br.
II at 17-18.  The Secretary also contends that the judge erred by
refusing to give res judicata effect to the probation revocation
determination because in that proceeding the District Court
decided identical issues relating to this alleged violation.  Id.
at 13-17.

                    1.   Res Judicata

     Under the doctrine of res judicata, a judgment on the merits
in a prior suit bars a second suit involving the same parties or
those in privity with them, based upon the same claim.  Nevada v.
United States, 463 U.S. 110, 129-30 (1983); Federated Dept.
Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); Lawlor v.
National Screen Service Corp., 349 U.S. 322, 326 (1955); Bradley
v. Belva Coal Co., 4 FMSHRC 982, 986-87 (June 1982).  Res
judicata also prevents litigation of all grounds for, or defenses
to, claims that were previously available to the parties, even if
they were not actually asserted in a prior proceeding.  Brown v.
Felsen, 442 U.S. 127, 131 (1979); Bradley, 4 FMSHRC at 987.  The
crucial question is whether the claims involved in the two
actions are identical; if not, res judicata is inapplicable.
Id.; Newport News Shipbuilding & Dry Dock Co. v. Director, Office
of Workers' Compensation Programs, 583 F.2d 1273, 1278 (4th Cir.
1978), cert. denied, 440 U.S. 915 (1979).  The party asserting
the doctrine must prove all the elements necessary to establish
it.  Bradley, 4 FMSHRC at 986.

     As the judge noted, there was no indication in the
magistrate's memorandum and order that his decision was based
upon a finding that the three alleged violations had occurred as
charged.  17 FMSHRC at 1189.  Given the eight alleged violations
that the magistrate was asked to consider in that proceeding,
there is no basis for concluding that his reference to "serious
life threatening violations" necessarily referred to any of the
three alleged violations at issue here.  Indeed, given the
generality and brevity of the probation revocation decision, it
is impossible to draw any conclusions regarding the magistrate's
findings with respect to these three alleged violations.  See
Bradley, 4 FMSHRC at 989 (declining to apply res judicata
doctrine based upon decision of state safety board that was
"extremely brief and conclusory" and "contain[ed] no findings of
fact, credibility resolutions, or explanations for the
conclusions reached").  In addition, as the judge explained, even
if the magistrate in the criminal proceeding had expressly found
that these three violations did occur, he did not consider or
make any findings with respect to negligence and gravity.  17
FMSHRC at 1190.  Accordingly, the judge correctly concluded
that the res judicata doctrine did not apply, and we affirm his
denial of the Secretary's motion to apply the doctrine to
establish this and two other alleged violations.[13]

**FOOTNOTES**

     [8]:    This   change   occurred  in  connection  with   the
reorganization  of  Subpart  D  of    the   Secretary's  Part  75
regulations, dealing with ventilation issues,  which  took effect
in  November  1992 (delayed from August 1992).  See 57 Fed.  Reg.
34,683 (1992); 57 Fed. Reg. 20,868 (1992).

     [9]:  Section 75.342(a) provides in relevant part:

               (1)    MSHA  approved  methane  monitors
          shall  be  installed   on  all  face  cutting
          machines,  continuous miners,  longwall  face
          equipment,  loading   machines,   and   other
          mechanized  equipment used to extract or load
          coal within the working place.

          . . . .

               (4)    Methane    monitors    shall   be
          maintained    in   permissible   and   proper
          operating condition . . . .

     [10]: We have previously applied the provisions 
of Rule 15 in resolving  issues  relating to the
amendment  of  citations.   See Wyoming  Fuel
Co.,14  FMSHRC  1282, 1289-90 (August  1992);
Cyprus Empire Corp.,  12 FMSHRC 911, 916 (May
1990);  see  also  29  C.F.R.      2700.1(b)
(providing  that  the Federal Rules of  Civil
Procedure shall apply "so far as practicable"
on procedural questions  not  governed by the
Commission's  procedural  rules or  the  Mine
Act).  Specifically, we have  recognized Rule
15(b)'s    "emphasis    upon    the   parties
understanding that the unpleaded claim is, in
fact, being litigated" in determining whether
a  posthearing  amendment  of  a citation  is
warranted.  Magma Copper Co., 8  FMSHRC  656,
659 n.6 (May 1986).

     [11]:   The  roof control plan provides that cribs
are to be  set  no more than 5 feet apart and that,
"where practical,"  cribs  must  be set before splitting
the pillar.  Id. at 1187.

     [12]:  Section 75.220 provides in part:

               (a)(1)  Each mine operator shall develop
          and  follow a roof control plan, approved  by
          the District Manager, that is suitable to the
          prevailing  geological  conditions,  and  the
          mining system to be used at the mine.

          2.   Violation

     We conclude that substantial evidence supports the judge's
finding that Faith failed to install cribs in the crosscut area
as required under its roof control plan, and therefore affirm his
finding of a section 75.220 violation.  The credited testimony of
Inspector Layne establishes that Faith did not install cribs
before splitting a pillar in the crosscut area in question.
Therefore, as the judge noted, the only remaining question is
whether it was practical to install cribs in this area.  17
FMSHRC at 1190.  The judge's finding that it was practical to do
so, despite Faith's arguments to the contrary, is supported by
substantial evidence.

     Faith's argument that it had, in fact, installed cribs in
the last open crosscut as required by its roof control plan
is not supported by the record, and based upon a
mischaracterization of Layne's testimony.  Contrary to
Faith's assertion (F. Br. II at 4-5), Layne did not testify
that there were cribs in the last open crosscut; rather, he
testified that cribs were installed in other nearby areas of
the mine.  See Tr. VI 269-70.  Layne's direct testimony,
which was properly credited by the judge, establishes that
when he inspected the area in question he found that cribs
had not been installed as required by Faith's roof control
plan.  Tr. VI 215-23.

                               IV.

                         Citation No. 3202244

     A.   Factual and Procedural Background

     On March 17, 1993, while conducting an inspection in the
vicinity of Survey Station No. 114, MSHA Inspector Larry Anderson
observed two working places that had been driven in excess of the
10-foot limit established by Faith's roof control plan.[14]  17
FMSHRC at 1192.  One place had been driven 24 feet beyond roof
supports; the other place had been driven 27 feet beyond roof
supports.  Id.  In the same area, Anderson observed a neck that
had been driven 23 feet inby roof supports.  Id. at 1193.  The
surfaces of the coal ribs in these areas were jagged, leading
Anderson to conclude that they had been cut with conventional
equipment, instead of a continuous miner.  Id. at 1192-93.  In an
adjacent entry, Anderson observed an area where a crosscut had
been driven into an unsupported area, also in apparent violation
of Faith's roof control plan.[15]  Id. at 1193.  This unsupported
area was estimated by Anderson to be about 20 feet wide and 30
feet long.  Id.  Based on these observations, Anderson issued a
citation to Faith alleging an S&S and unwarrantable violation of
section 75.220.  Id. at 1191-92; Tr. VI 295; Jt. Ex. 54.

     After finding that Faith had violated section 75.220 (17
FMSHRC at 1195-96), the judge concluded that this violation was
the result of Faith's unwarrantable failure to comply with its
roof control plan.  Id. at 1196-97.[16]  The judge found that the
violation had existed for several months, in an air intake course
subject to daily inspection, and concluded that, given the
generally unstable nature of the roof in the area, Faith had
failed to meet a "high standard of care to ensure that the roof
was supported adequately."  Id. at 1197.

               B.   Disposition

     Faith contends that the judge erred in finding that this
violation was the result of unwarrantable failure because it was
neither intentional nor the result of a reckless disregard for
the safety of miners.  F. Br. II at 11-14.  Faith argues that
Stockwell, its owner, was not aware of the violation until it was
brought to his attention by Inspector Anderson, that it
subsequently took immediate action to abate the violation, and
that the area with insufficient support was not as large as that
estimated by Anderson.  Id.  Faith also asserts that the judge
properly determined that the doctrine of res judicata was not
applicable because the Secretary failed to establish that the
probation revocation proceeding involved the same issues as those
relating to this violation.  Id. at 15.

     The Secretary argues that substantial evidence supports the
judge's finding that this violation was the result of Faith's
unwarrantable failure, relying on Faith's admission that miners
traveled and worked under unsupported roof and evidence that the
roof was in poor condition, that Faith failed to take the
condition of the roof into account, that the areas at issue were
in an air course that had to be examined on a daily basis, and
that the violation had existed for several months prior to the
issuance of this citation.  S. Br. II at 21-22, 23-25.  In
addition, the Secretary argues that the judge erred by refusing
to grant res judicata effect to the decision in the probation
revocation proceeding with respect to the unwarrantable failure
issue.  Id. at 20-21, 22-23.

     The unwarrantable failure terminology is taken from section
104(d) of the Mine Act, 30
U.S.C.  814(d), and refers to more serious conduct by an
operator in connection with a violation.  In Emery Mining Corp.,
9 FMSHRC 1997 (December 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more
than ordinary negligence.  Id. at 2001.  Unwarrantable failure is
characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference" or a "serious lack of
reasonable care."  Id. at 2003-04; Rochester & Pittsburgh Coal
Corp., 13 FMSHRC 189, 194 (February 1991); see also Buck Creek
Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission's unwarrantable failure test).

     We conclude that substantial evidence supports the judge's
findings, and affirm his determination that this section 75.220
violation was the result of Faith's unwarrantable failure to
comply with requirements of its roof control plan.  Based on
Inspector Anderson's credited testimony that the shale roof in
the area was scaling and in poor condition, and that water made
parts of the roof subject to sudden, unanticipated falls, the
judge reasonably concluded that Faith was chargeable with a high
degree of care to ensure that the roof was supported adequately,
which it failed to meet.  17 FMSHRC at 1196-97.  As the judge
observed, "[e]xposing miners to unsupported roof under such
conditions was equivalent to requiring them to play Russian
roulette."  Id. at 1196.  We have previously relied upon the high
degree of danger posed by roof control plan violations as a basis
for finding unwarrantable failure.  See Cyprus Plateau Mining
Corp., 16 FMSHRC 1610, 1616 (August 1994) (allowing work under
unsupported roof was result of unwarrantable failure where
installation of temporary roof supports, as required under roof
control plan, was "necessary for safe mining practice"); Quinland
Coals, Inc., 10 FMSHRC 705, 709 (June 1988) (finding
unwarrantable failure where "roof conditions were highly
dangerous"); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011
(December 1987) (temporary roof support violation resulted from
unwarrantable failure where prior history of roof falls "placed
[operator] on notice that heightened scrutiny to assure
compliance with its roof control plan was vital").  See also Lion
Mining Co., 18 FMSHRC 695, 700-02 (May 1996) (vacating judge's
finding that roof control plan violation was not unwarrantable).

     In addition, the violations should have been obvious to
Faith because they occurred in areas of an air intake course that
had to be examined on a daily basis.  See Quinland, 10 FMSHRC at
708-09 (obvious nature of lack of proper roof support);
Youghiogheny & Ohio Coal Co., 9 FMSHRC at 2010-11 (finding of
unwarrantable failure where preshift examinations had been
conducted but the roof control violations were not reported);
Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (February 1991)
(violations not reported following preshift examinations).  As in
Quinland and Youghiogheny, because Faith was on notice of poor
roof conditions, its failure to comply with its roof control plan
is indicative of a "serious lack of reasonable care."  See 10
FMSHRC at 708-09; 9 FMSHRC at 2011.  The unwarrantable failure
finding is also supported by the duration of the violation, which
was found by the judge to have existed for several months.  17
FMSHRC at 1197.  See Quinland, 10 FMSHRC at 709 (poor roof
conditions associated with section 75.200 violation had existed
"for a considerable length of time").

     Given the judge's finding that this violation had existed
for several months, in an area of the mine subject to daily
inspections, the record does not support Faith's assertion that
it was not aware of the violative conditions until it received a
citation from Inspector Anderson.  In addition, the mere fact
that the violative conduct may not have been intentional does not
preclude an unwarrantability finding.  It is well established
that intentional and deliberate conduct is not a condition
precedent to a determination of unwarrantable failure.  See
Emery, 9 FMSHRC at 2003-04; S&H Mining, Inc., 17 FMSHRC 1918,
1923 (November 1995).[17]

                                V.

                        Order No. 3202245

               A.   Factual and Procedural Background

     In reviewing a map of the No. 15 Mine, MSHA Inspector
Anderson noticed irregular variations in pillar sizes.  17 FMSHRC
at 1198.  Accordingly, during his inspection of the mine on March
17, 1993, Anderson examined the areas that appeared irregular on
the map, checked pillar sizes and shapes, and inspected entries
to determine whether they were straight.  Id.  Based on his
observations, Anderson concluded that Faith had been mining
without the use of sightlines[18] for between 30 and 60 days.  17
FMSHRC at 1198-99.  He therefore issued an order to Faith
alleging a violation of section 75.203(a), which was amended at
hearing to allege a violation of section 75.203(b).[19]  Id. at
1197-98, 1200-01; Tr. VI 405; Jt. Ex. 55.

     The judge concluded that the Secretary had failed to prove
that sightlines were not used to control mining direction at the
mine, and therefore vacated this order.  17 FMSHRC at 1201-02,
1223.[20]  The judge found that Inspector Anderson had no first-
hand knowledge of whether or not sightlines were used because he
did not observe any surveying or mining being conducted at the
mine.  Id. at 1201.  The judge also found that the evidence
offered by the Secretary to support this violation, consisting
primarily of Anderson's testimony concerning the depiction of
irregularly shaped entries and pillars on the mine map, was not
convincing.  Id. at 1201-02.  The judge noted that the Secretary
had not offered any evidence that spads used to establish
sightlines were not in place, or testimony from miners that it
was common practice not to follow sightlines at the mine.  Id. at
1202.  Instead, the judge credited Stockwell's testimony that he
intentionally deviated from projections in certain instances
because of adverse roof conditions, and that even in such areas
Faith had used sightlines.  Id. at 1201-02.  In crediting
Stockwell's testimony on this point, the judge explained that the
record was replete with testimony concerning adverse roof
conditions and that even Inspector Anderson admitted that the
deviations observed could have been the result of roof problems.
Id. at 1202.

               B.   Disposition

     The Secretary contends that the judge erred in refusing to
give res judicata effect to the decision of Magistrate Powers in
the probation revocation proceeding, which she contends amounted
to a finding that Faith had mined without the use of sightlines.
S. Br. at 10-14.  The Secretary also contends that the judge
erred in concluding that substantial evidence did not establish a
section 75.203(b) violation because that determination was based
primarily upon his decision to credit Stockwell's self-serving
testimony that the deviations were intentional and made in
response to adverse roof conditions.  Id. at 10, 14-16.  The
Secretary contends that this credibility resolution is erroneous
and should be overturned, because the judge provided no
explanation for his determination and Stockwell was otherwise
shown to be a noncredible witness.  Id. at 14-16.

     Faith contends that substantial evidence supports the
judge's finding that it did not violate section 75.203(b) because
Stockwell's credible testimony established that it followed
sightlines to control mining direction, except where deviations
were necessary because of adverse roof conditions.  F. Br. at 5-
12.  Faith also contends that the judge properly denied the
Secretary's request to apply the res judicata doctrine to
establish this alleged violation because there is no indication
that the probation revocation proceeding involved issues
identical to those presented here.  Id. at 6, 8-11.

     The Commission has long held that a judge's credibility
determinations are entitled to great weight and may not be
lightly overturned.  Farmer v. Island Creek Coal Co., 14 FMSHRC
1537, 1541 (September 1992); Penn Allegh Coal Co., 3 FMSHRC 2767,
2770 (December 1981). We have recognized that since the judge has
an opportunity to hear the testimony and view the witnesses he is
ordinarily in the best position to make a credibility
determination.  In re: Contests of Respirable Dust Sample
Alterations Citations, 17 FMSHRC 1815, 1878 (November 1995),
appeal docketed, Secretary of Labor v. Keystone Coal Mining
Corp., No. 95-1619 (D.C. Cir. Dec. 28, 1995) (quoting Ona Corp.
v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)).  Accordingly, "as a
general rule [we] are bound by the credibility choices of the
[judge], even if [we] `might have made different findings had the
matter been before [us] . . . de novo.'"  Ona, 729 F.2d at 719
(quoting Gulf States Mfrs., Inc. v. NLRB, 579 F.2d 1298, 1329
(5th Cir. 1978)).  Nonetheless, the Commission will not affirm
such determinations if there is no evidence or dubious evidence
to support them.  Consolidation Coal Co., 11 FMSHRC 966, 974
(June 1989) (citations omitted).

     We conclude that the judge's decision to credit Stockwell's
testimony regarding the use of sightlines is adequately explained
and does not constitute an abuse of discretion.  In explaining
his decision to credit Stockwell, the judge indicated that
Stockwell's testimony was supported by considerable record
evidence of adverse roof conditions, and noted that even
Inspector Anderson admitted that the deviations could have been
caused by roof problems.  17 FMSHRC at 1202.  The judge also
noted that the Secretary did not attempt to rebut Stockwell's
testimony by offering evidence that the required spads were not
in place, or testimony from miners that it was common practice at
the mine not to follow sightlines.  Id.[21]

     In addition, the fact that Stockwell's testimony may have
been less than fully credible with respect to other matters does
not, in itself, provide a basis for disturbing the judge's
decision to credit him on this point.  We have previously
recognized 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.  In Secretary of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981),
the Commission explained:

          We do not subscribe to a "false in one, false
          in everything" rule of testimonial evidence,
          and such rules are not applied inflexibly in
          any event. . . .  If the remainder of a
          questionable witness' testimony is
          corroborated by other credible evidence . . .
          or is otherwise inherently believable, the
          judge is not foreclosed from accepting it.

Id. at 813 (citations omitted).

     The Secretary has failed to offer any evidence that warrants
the "extraordinary step" of reversing the judge's decision to
credit Stockwell's explanation that the deviations from
projections were made intentionally in response to adverse roof
conditions and not indicative of a failure to follow sightlines.
Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629 (November
1986).  Accordingly, we conclude that the judge's credibility-
based determination that Faith did in fact utilize sightlines is
supported by substantial evidence, and affirm his finding that
the Secretary failed to establish a violation of section
75.203(b).[22]

**FOOTNOTES**

     [13]:   After detailing the basis for their conclusion  that
the federal magistrate's  ruling  should  not  have  res judicata
effect  in  this  case  (a  conclusion with which we agree),  our
colleagues then voice their disapproval of the testimony given by
the  MSHA  inspectors  in  a  probation   proceeding  before  the
magistrate "to the extent that the Secretary's  actions . . . had
the  effect  of circumventing an ongoing Commission  proceeding."
Slip op. 19.   We find this charge to be without merit.

     Although  the  record in this case does not indicate whether
the MSHA inspectors were  subpoenaed  to testify, or whether they
volunteered their testimony, the record  does  indicate that they
testified before the magistrate and apparently detailed  why they
took  enforcement  action and presumably why they concluded  that
violations occurred.   Tr.  V  26-27, 31-33, 40, 43, 48, 62.  The
presiding magistrate, who is "free  to  consider  many factors in
granting  or  revoking  probation" (United States v. Miller,  797
F.2d 336, 339 n.4 (6th Cir.  1986)),  apparently considered their
testimony to be relevant.  Thus, it is  clear  from his action in
revoking  Mr. Stockwell's probation that the magistrate  did  not
require a Commission  adjudication  and  finding  of violation in
order  to  make  his  judgment.   The idea that this lawful  MSHA
participation in a criminal proceeding  amounts  to an attempt by
the Secretary to "circumvent[] an ongoing Commission proceeding,"
is troubling to us because we find this charge to  be unsupported
and unfounded.

     In  any  event,  the  probation revocation proceeding  is  a
matter over which the Commission  has  no  jurisdiction, and thus
our  colleagues' objections to actions at that  hearing  are  not
relevant to the instant case.  In addition, we emphasize that the
testimony   and   participation  of  the  inspectors  before  the
magistrate have had absolutely no impact upon this proceeding.

     Accordingly, we  take  strong  exception  to our colleagues'
criticism of the Secretary's actions at the probation  revocation
hearing.

     [14]:  Faith's roof control plan provided that when coal was
cut with conventional equipment, the cut could not exceed 10 feet
in length.  17 FMSHRC at 1192.

     [15]:  The roof control plan required that openings creating
an  intersection  be permanently supported, or that at least  one
row of temporary supports  be installed before any work or travel
was permitted in the intersection.  Id. at 1193.

     [16]:  The judge also concluded that this violation was S&S.
Id. at 1196.  Faith does not  challenge  this finding.  F. Br. II
at 10, 12.

     [17]:  We also conclude that the judge  properly  denied the
Secretary's   motion  to  apply  the  res  judicata  doctrine  to
establish the unwarrantability  of  this violation based upon the
decision in the probation revocation  proceeding, for the reasons
discussed supra, pp. 9-10.

     [18]:  Sightlines are a method of  keeping  on  the  correct
mining  course  through  the  use of spads set in accordance with
projections established by the  operator on a mine site map.  Tr.
VI at 406-10.

     [19]:  Section 75.203(b) provides:

          A sight line or other method  of  directional
          control   shall   be  used  to  maintain  the
          projected direction  of  mining  in  entries,
          rooms, crosscuts and pillar splits.

     [20]:   At  certain  points  in  his decision, the
judge inadvertently referred to this order as Order No.
3203325.  Id. at 1197, 1223.

     [21]:  Contrary to the Secretary's  suggestion (S.
Br.  at  16  n.8),  the  judge's decision  to credit 
Stockwell on this point  was not based on this ground 
alone; rather, it  was  one of several  reasons mentioned
by the judge as a basis for this credibility determination.
Moreover, it was not improper, as the Secretary contends,
for the judge to rely on the failure to produce relevant
evidence both in evaluating the strength of the Secretary's
case  and  in  deciding  whether   to  credit Stockwell's
conflicting explanation  of  the presence of certain 
irregularities.  Nor was the judge required, as the Secretary 
asserts, to   engage   in  a  detailed   analysis   of
Stockwell's demeanor on the witness stand.

     [22]:  We also conclude  that  the  judge properly
denied  the Secretary's motion to  apply  the res  judicata
doctrine  to  establish  this violation  based upon  the 
decision  in  the probation  revocation   proceeding,  for
the reasons discussed supra, pp. 9-10.

                               VI.

                           Conclusion

     For the foregoing reasons, we affirm the judge's findings
with respect to each of the alleged violations of sections
75.202(a), 75.220, and 75.203(b) set forth in Citation Nos.
3396045, 3024814, 3202244, and Order No. 3202245.  We also affirm
his determination that the doctrine of res judicata was not
applicable as a basis for establishing the violations alleged in
Citation Nos. 3024814 and 3202244 and Order No. 3202245.  We
reverse the judge's decision to vacate the violation alleged in
Citation No. 3202337, concerning the use of a scoop loader
without an operative methane monitor, and remand for a
determination of whether Faith violated section 75.342(a)(4).

                              Mary Lu Jordan, Chairman
                              
     Marc Lincoln Marks, Commissioner Commissioners Riley and
Verheggen,  concurring:
                                   
     We agree with our colleagues' decision.  We write separately
to offer an additional rationale as to why the judge properly denied
the Secretary's motion to establish that the violations alleged in
Citation Nos. 3024814 and 3202244 and Order No. 3202245 occurred as
charged by application of the doctrine of res judicata based on
the magistrate's decision in Stockwell's probation revocation
proceeding.  See, slip op. at 9-10,13 n.17, and 16 n.22.

     As pointed out by our colleagues, notwithstanding the
Secretary's assertion that the issues addressed by the U.S.
District Court were identical to those addressed in these
proceedings, the Secretary failed to prove that the magistrate based
his decision upon a finding that the alleged violations occurred as
charged.  We also note that the Secretary, who carries the burden
of proving all the elements necessary to establish res judicata
(Bradley v. Belva Coal Co., 4 FMSHRC 982, 986 (June 1982)), made
no effort to prove that the requisite privity existed between
Stockwell and Faith.  See Nevada v.  United States, 463 U.S. 110, 129-30
(1983) (res judicata applies only to a second suit involving the same
parties or those in privity with them); In re Gottheiner, 703 F.2d
1136, 1140 (9th Cir. 1983) ("Privity exists when there is
`substantial identity' between  parties, that is, when there is
sufficient commonality of  interest.") (citation omitted).

     We write separately, however, to highlight an even more
fundamental basis upon which to reject the Secretary's attempt to
assert res judicata in these proceedings.  We find that, in the
first instance, a federal magistrate lacks the subject matter
jurisdiction to make a finding of a civil violation of the Mine Act.
In Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) the Supreme
Court held that "the Commission and the courts of appeals have
exclusive jurisdiction over challenges to agency enforcement
proceedings" brought under the Mine  Act.  Id. at 208 (emphasis added).
To the extent that the federal  magistrate's revocation of
Stockwell's probation was grounded upon his determination that civil
violations of the Mine Act occurred, he had no such authority.
Congress has vested this authority  exclusively in the Commission and
the courts of appeals.  Thus, until proven by the Secretary before the
Commission, the citations and order were mere allegations of
violations.  Only after a final adjudication before the Commission,
with a finding of a violation, could the citations and order have
been presented to the magistrate as  evidence of civil violations
of the Mine Act.

     We also note that although the Secretary argued in her post-
hearing brief that the magistrate specifically affirmed Order No.
3202245 (S. Post-Trial Br. at 129-30), Judge Barbour reached the
opposite result and vacated the order, a decision which we affirm
today.  This apparent difference in  the results reached by the
magistrate and the Commission highlights the critical importance
of the Commission guarding its  jurisdiction over civil proceedings
under the Mine Act, in which our agency can bring its expertise to
bear on statutory and regulatory  questions arising under the Act.
Thunder Basin, 510 U.S. at 214-15.

     We also write separately to voice our concern that at the
time the probation revocation hearing was taking place before the
federal magistrate during  mid-September 1993, the citations
and order were at issue before a  Commission judge, and as such were
allegations that the Mine Act was violated.[23]  It appears from the
record, however, that Stockwell's probation officer, with the
assistance of MSHA inspectors,  represented to the magistrate that
violations of the Mine Act as  alleged in the citations and order
did in fact occur.  Tr. V 22-25, 45-49.  That the Secretary then
argued before Judge Barbour that the violations had been proven
before the magistrate, an argument  she has raised on appeal,
demonstrates that she believes that the probation revocation proceeding
was an acceptable substitute for an adjudication of the citations and
order before the Commission.  The Secretary has erred, however, by
insisting that the federal magistrate had the power to render
moot a Commission proceeding.  To the extent that the Secretary's
actions in this regard had the effect of circumventing an ongoing
Commission proceeding, we  disapprove.

     Accordingly, we conclude that the show cause hearing before
a federal magistrate on the narrow question of whether Stockwell's
probation should have been revoked was not, and could not have been
under Thunder Basin, a substitute  for a proper determination on the
merits of the Secretary's allegations under the Mine Act, with
appropriate review by the Commission and a court of appeals.

                               James C. Riley, Commissioner
                                
                               Theodore F. Verheggen, Commissioner

**FOOTNOTES**

     [23]:  Specifically, while the  probation revocation hearing
was  taking place, the question of whether  to  enter  a  default
judgment  against  Faith  in  these  proceedings  came before the
judge.  Tr. V 29-30.