<DOC>
[DOCID: f:consol96.wais]

 
CONSOLIDATION COAL COMPANY
September 9, 1996
WEVA 94-19


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730  K  STREET  NW,  6TH  FLOOR

                      WASHINGTON,  D.C.   20006


                          September 9, 1996

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
             v.                    :    Docket No. WEVA 94-19
                                   :
CONSOLIDATION COAL COMPANY         :


BEFORE:  Jordan, Chairman; Marks and Riley, Commissioners[1]


                               DECISION

BY THE COMMISSION:

     This civil penalty proceeding arises 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 an order issued by the Department of
Labor's Mine Safety and Health Administration ("MSHA") alleging
that Consolidation Coal Company ("Consol") violated 30 C.F.R. 
75.340, which sets forth fire protection requirements applicable
to underground water pumps.[2]  Administrative Law Judge William
Fauver found that Consol violated section 75.340(a), that neither of
the exemptions contained in sections 75.340(b)(4) and (6) applied,
that the violation resulted from unwarrantable failure, and that the
violation was "serious."  17 FMSHRC 231, 234, 235 (February 1995) (ALJ).
The Commission granted Consol's petition for discretionary review.  For
the reasons that follow, we affirm the judge.

                                  I.

                  Factual and Procedural Background

     On April 7, 1993, Inspector Richard McDorman issued an order
under section 104(d)(2) of the Act, 30 U.S.C.  814(d)(2), charging a
violation of section 75.340(a) at Consol's Arkwright No. 1 Mine, an
underground coal mine located in West Virginia.  17 FMSHRC at 231;
Gov't Exs. 1, 16.  McDorman, accompanied by Mike Jackson of Consol's
safety department, inspected the No. 68 water pump, an electrically-
powered ThroMor pump, located in a crosscut in an intake escapeway on
the 2 South longwall development section.  17 FMSHRC at 231, 233; Tr. 26,
72-73.

     The pump's purpose was to remove water from a swag (low point) in
an abandoned section of the mine adjacent to the 2 South section.  17
FMSHRC at 232; Tr. 74. After one to one-and-a-half weeks, the water was
removed from the swag.  Tr. 80-81.  Although Consol had made preparations
to move the pump inby to the next swag as the section advanced, the absence
of water on the section made the move unnecessary.  Tr. 84.

     The pump had 7 horsepower, and was 14 to 16 inches high, 18 to
20 inches wide, and 6 feet long. 17 FMSHRC at 232; Tr. 73.  It weighed
300 to 350 pounds, and was located about 20 crosscuts from the working
face and about 1800 feet from the loading point.  Id.

     The water pump was not located in a noncombustible enclosure
or equipped with a fire suppression system.  17 FMSHRC at 231.  The air
ventilating the water pump was not coursed into the return air entry;
rather it was used to ventilate the working section.  Id. at 231-32.
For these conditions, McDorman issued the order charging the violation.
Gov't Ex. 1.  He designated the violation not significant and substantial.
Id. The Secretary proposed a civil penalty assessment of $2,400.

     At trial, Consol did not dispute that its pump failed to comply
with the requirements of section 75.340(a).  C. Posthearing Br. at 1-2.
Rather, Consol argued to the judge that the pump was exempt from the
regulation under either sections 75.340(b)(4) or (6).  Id.

     The judge concluded that Consol violated the regulation, determining
that neither the (b)(4) nor the (b)(6) exemption applied.  17 FMSHRC at
233-35.  The judge concluded that the (b)(4) exemption was inapplicable
because the pump was about 1800 feet outby the loading point and did not
advance with the working section.[3]  Id. at 234.  He ruled that the
(b)(6) exemption was inapplicable because the pump was not a "small
portable pump."  Id.

     The judge also concluded that the violation resulted from Consol's
unwarrantable failure.  Id. at 234-35.  He determined that it was not
reasonable, without first inquiring into MSHA's enforcement position,
for Consol to rely on the exemptions because the pump was "too heavy to
lift to be considered a `small portable pump,' and because it was not
moved as the working section advanced or retreated."  Id. at 234.  The
judge also concluded that Consol's claims of exemption under (b)(4) and
(6) appeared to be after-the-fact litigation positions, and that Consol
had been operating without knowing that the safety standard governing
pumps had changed five months before the violation.  Id. at 234-35.

     Although the judge noted that Inspector McDorman designated the
violation as not significant and substantial, he nevertheless concluded
that the violation was serious.  Id. at 234. He found that in the event
of a fire reaching the pump's fuel tank, the resulting smoke would have
contaminated the intake entry and escapeway with a reasonable likelihood
of serious injury.  Id.  The judge assessed a civil penalty of  $2,400.
Id. at 239.

                                 II.

                             Disposition

     With respect to the (b)(4) exemption, Consol argues the judge
erred in finding that "the pump was not moved as the working section
advances or retreats."  C. Br. at 2.  It asserts that the pump was
removed from service, and that it was unnecessary to move the pump
as the section advanced because of the absence of water on the advancing
section. Id.  Concerning the (b)(6) exemption, Consol contends that
the judge erred in finding that the pump was not a "small portable
pump."  Id.  It submits the  judge's reliance on the pump weight was
material error.  Id. at 2, 5-7.  With respect to the judge's
unwarrantable failure finding, Consol argues that its interpretation
of the regulation was plausible and found support in the preamble and
other MSHA documents disseminated to the industry.  Id. at 2, 5.  With
respect to the judge's finding that the violation was serious, Consol
argues the pump did not have a fuel tank and was not in operating
condition at the time the order was issued, and thus there was no
proof that a hazard existed.   Id. at 2, 8, 9.[4]

     The Secretary argues that, with regard to the (b)(4) exemption,
the pump was not located "at or near" the working section, and that
the pump was not "moved as the working section advanc[ed]."  S. Br.
at 11-13.  With regard to the (b)(6) exemption, the Secretary submits
that the pump was not portable, and that weight is a legitimate factor
in the determination of portability.  Id. at 7-11.  With respect to
the judge's unwarrantable failure finding, the Secretary argues that
it was not reasonable for Consol to have believed its pump qualified
for an exemption.  Id. at 15 n.5, 16.  He submits that Consol was aware
that pumps such as the No. 68 ThroMor were required to be in compliance
with the cited standard.  Id. at 15.  With respect to the judge's
finding that the violation was serious, the Secretary emphasizes that
the pump was in operating condition, and that there was one gallon of
oil in the pump's motor.  Id. at 7 n.2.

A. Consol's Motion to Strike

1.  Ventilation Meeting Materials

     The Secretary's brief contained an attachment consisting of
ventilation information meeting sign-in sheets and notices and
internal MSHA memoranda setting forth schedules for informational
meetings on the Secretary's ventilation regulations.  Consol seeks
to strike these materials on the ground that they were not before the
judge and because Consol did not have the opportunity of cross-
examination with regard to the authenticity, veracity and relevance
of the materials.  C. Mot. to Strike at 1-3.

     The Commission has made clear that "the adjudication process
is best served if the judge is first given the opportunity to admit
and examine all the evidence before making his decision."  Climax
Molybdenum Co., 1 FMSHRC 1499, 1500 (October 1979).  As the Commission
has noted, "it is the obligation of parties to prove their case before
the judge, not on review by reference to detailed material not presented
to the judge and not subject to the rigors of cross-examination."  Union
Oil Co. of  Cal., 11 FMSHRC 289, 301 (March 1989) (emphasis in original).
This rule of procedure under the Mine Act accords with settled principles
of law limiting the record on review to that developed before the trier
of fact.  Id.; see also Fed. R. App. P. 10(a); United States v. Sanga,
967 F.2d 1332, 1335-36 n.2 (9th Cir. 1992).

     Because the materials were not part of the record before the judge,
we grant Consol's motion to strike them, and consequently do not rely
on them or on references to them contained in the Secretary's brief.

2.  Webster's Third New International Dictionary (Unabridged) (1986)
("Webster's Third")

     Consol also asks the Commission to strike the references in
the Secretary's brief to the definitions of  "portable" and "mechanize"
contained in Webster's Third.  In his brief to the Commission and post-
hearing brief to the judge, the Secretary relied on similar definitions
in The American Heritage Dictionary (New College ed. 1980) and Webster's
New World Dictionary (Second college edition, 1980).  S. Br. at 10; S.
Posthearing Br. at 11- 12.  The Commission has relied on Webster's Third
in its decisions.  See, e.g., Peabody Coal Co., 18 FMSHRC 686, 690 (May
1996); Ideal Cement Co., 12 FMSHRC 2409, 2410 n.2 (November 1990);
Consolidation Coal Co., 11 FMSHRC 1935, 1938 (October 1989).  The
Commission has never held that a party is limited to citing only those
authorities previously cited to the judge.

     Accordingly, we deny Consol's motion to strike the Secretary's
references to definitions of "portable" and "mechanize" in Webster's
Third.

B.  Violation of section 75.340(a)

     As Consol concedes that its pump did not comply with the
requirements of section 75.340(a), its challenge to the judge's
determination that it violated section 75.340 centers on whether
the judge correctly concluded that the pump was not exempted from
the mandatory standard under section 75.340(b)(4) and (b)(6).

     The Commission has recognized that where the language of a
regulatory provision is clear, the terms of that provision must
be enforced as they are written unless the regulator clearly
intended the words to have a different meaning.  Utah Power & Light
Co., 11 FMSHRC 1926, 1930 (October 1989), citing Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43 (1984).  We think it clear that Consol's cited pump is not
covered by the section 75.340(b)(4) and (6) exemptions and,
accordingly, we resolve this case on the basis of the plain
language of the regulation.

1.  The section 75.340(b)(4) exemption

     Under section 75.340(b)(4), section 75.340(a) "does not
apply to . . .[p]umps located on or near the section and that
are moved as the working section advances or retreats."  30 C.F.R.
 75.340(b)(4) (emphasis added). The judge concluded that this
exemption did not apply to Consol's pump because "[t]he pump was
about 1800 feet outby the loading point and did not advance with
the working section."  17 FMSHRC at 234.

     The parties agree that "pumps located on or near the section"
refers to the "working section."  C. Br. at 7-8; S. Br. at 11. The
"working section" is the area "[f]rom the section loading point, being
the tail piece and back to the working faces."  Tr. 29; 30 C.F.R. 
75.2.  Because the pump was about 1800 feet outby the loading point,
we conclude that it was clearly not "on" the working section.  We also
think that, at a distance of 1800 feet outby the loading point, the pump
was clearly not "near" the working section.  Inspector McDorman testified
that "near" would be two to three crosscuts outby the loading point.  Tr.
40.  He also suggested that "near" could possibly be four crosscuts outby
the loading point, referring to 30 C.F.R.  75.214(a), which requires
supplementary roof support materials to be within four crosscuts of each
working section.  Tr. 55.  The pump was approximately 2000 feet or 20
crosscuts outby the working face, and approximately 18 crosscuts outby
the loading point.  17 FMSHRC at 232; Tr. 26-27 (based on Inspector
McDorman's estimate of 100 feet from crosscut to crosscut).  Even when
the pump was closest to the working section, at the time of its
installation about two weeks earlier, it was still more than "1,000
feet from the pump to the face" and "[a]pproximately 800 feet" from the
pump to the section loading point.  Tr. 43, 62-63.  Accordingly,
substantial evidence supports the judge's conclusion that the pump was
not located on or near the working section.[5]  17 FMSHRC at 234.

     As to the (b)(4) prerequisite the pump be "moved as the working
section advances or retreats," the pump had been stationary throughout
the entire two weeks subsequent to its installation, while the section
advanced approximately 1,000 feet during this same period.  17 FMSHRC
at 234; Tr. 43, 62-63.  Inspector McDorman testified there was no
indication the pump was to move with the working section, because the
entire purpose of the pump's presence was to dewater the old works
adjacent to the section.  Tr. 61, 64.   Mike Jackson of Consol's safety
department testified that the pump would have been left in the location
in which the inspector found it "so long as it kept pumping water out
of the adjacent area."  Tr. 90.  Based on this evidence, Consol did not
meet the plain requirement of (b)(4) that the pump be moved in order
to qualify for the exemption.  Jackson testified that Consol was entitled
to the (b)(4) exemption because it intended to move the pump with the
section as needed to pump out water, but since there was no need to pump
out the water as the face moved, the pump remained where it was cited.
Tr. 84-85.  We agree with the judge that an intent to move the pump does
not satisfy the prerequisite for the (b)(4) exemption.  17 FMSHRC at
234.

     Consol also argues that it had removed the pump from service for
about one week prior to the citation, and therefore was not required to
move it as the working section advanced.  C. Br. at 2.  The judge found
that the pump was energized and ready to operate.  17 FMSHRC at 232.
Inspector McDorman's testimony supports the judge's finding.  Tr. 21,
43, 47.  To the extent Consol's witness Jackson testified to the contrary,
Tr. 79, and Consol's electrical examination reports indicated the pump
was out of service, Gov't Ex. 4, the judge essentially made a credibility
determination.  A judge's credibility findings should not be overturned
lightly and are entitled to great weight.  In Re: Contests of Respirable
Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (November 1995).
We therefore decline to disturb the judge's finding that the pump had
not been removed from service.

     In sum, we conclude that the judge correctly determined that Consol
did not fall within the (b)(4) exemption.

2.  The section 75.340(b)(6) exemption

     Under section 75.340(b)(6), section 75.340(a) "does not apply
to . . . [s]mall portable pumps."  We think the judge correctly
concluded that, because of its 300 to 350 pounds of weight, Consol's
pump was not a small portable pump within the meaning of section (b)(6).
See 17 FMSHRC at 234.  The preamble to the final rule indicates the
Secretary's intention that such pumps be "easily relocated without the
aid of mechanized equipment; capable of being moved frequently; and
installed in such a manner to facilitate such movement."  57 Fed. Reg.
20,868, 20,889 (May 15, 1992). This language is similar to the language
describing "small portable pumps" in MSHA's Program Policy Letter
P91-V-12 (effective July 17, 1991) ("PPL"), which was issued under
section 75.340's predecessor standard, 30 C.F.R. 75.1105 (1992).  Tr.
31-32; Gov't Ex. 2; C. Ex. 4.  Under the PPL, "[p]ortable pumps are:
small normally permissible or submersible pumps; easily relocated without
the aid of mechanized equipment; capable of being moved frequently; and
installed in such a manner to facilitate such movement."   Gov't Ex.
2; C. Ex. 4.  These definitions are consonant with the normally understood
meaning of  "portable," which is defined as "capable of being . . . easily
or conveniently transported" and "light or manageable enough to be readily
moved."  Webster's Third at 1768.

     Substantial record evidence supports the judge's conclusion that
Consol's pump was not a small portable pump.  Neither Consol nor the
Secretary disputes the judge's finding concerning the weight of the pump.
Tr. 26, 74. Inspector  McDorman indicated it would take five or six
people with ropes to pull the pump.  Tr. 38.  As to the preamble's
declaration that an exempt pump be "easily relocated without the aid
of mechanized equipment," McDorman testified that the pump was usually
moved by a scoop, which is a mechanized piece of equipment.   Tr. 37-38.
Mike Jackson of Consol's safety department testified that if a scoop had
been available, it would have been used to load the pump up and move it.
Tr. 81.  Jackson also testified that lacking a scoop, they would probably
jack the pump up, put it on a four-wheel cart, move it down the heading,
and reset it.  Id. McDorman further stated that two to three people could
move the pump on a small pulley cart with wheels.  Tr. 59.  Accordingly,
McDorman testified that the pump was not a small portable pump in light of
the description in the preamble to the final rule.  Tr. 30, 31.  Thus, the
plain language of the exemption clearly makes it inapplicable to Consol's
pump.

     We reject Consol's argument that weight is not a legitimate
criterion for assessing the applicability of the exemption.  Weight
is an essential element in considering portability and comports with
common usage, regulatory history and common sense.

C.  Unwarrantable failure

     Unwarrantable failure constitutes aggravated conduct exceeding
ordinary negligence.  Emery Mining Corp.,  9 FMSHRC 1997, 2001 (December
1987).  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, 193-94 (February 1991).

     In Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February 1994),
the Commission set forth the following factors among those to be
considered in making an unwarrantable failure analysis: "the
extensiveness of the violation, the length of time that the
violative condition has existed, the operator's efforts to eliminate
the violative condition, and whether an operator has been placed
on notice that greater efforts are necessary for compliance."

     Substantial record evidence supports the judge's finding.
As to the length of time the violative condition existed, the
inspector testified that he designated the violation unwarrantable
failure because the pump had been in the same location for over
two weeks.  Tr. 42-44.  Weekly electrical examinations had been
conducted on March 25 and April 2. Tr. 44-45.  As to the extensiveness
of the violation, the pump did not have fireproof housing.  Tr. 43.
Consol did not meet the fire suppression requirements in lieu of the
housing.  Id.  The pump was not ventilated properly, coursing the
intake air into the return airway.  Id.  The pump was ready to be used.
Tr. 21.  The record does not indicate compliance with any of the other
alternatives in section 75.340(a)(2) and (3).  As to Consol's efforts to
eliminate the violative condition, the record indicates Consol made none.

     The Commission has recognized that "if an operator reasonably
believes in good faith that the cited conduct is the safest method
of compliance with applicable regulations, even if it is in error,
such conduct is not aggravated conduct constituting more than ordinary
negligence." Southern Ohio Coal Co., 13 FMSHRC 912, 919 (June 1991),
citing Utah Power & Light Co., 12 FMSHRC 965, 972 (May 1990)).  The
operator's good faith belief must be reasonable under the circumstances.
Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615-16 (August 1994).

     Consol argues that it reasonably relied upon an interpretation
of the regulation that had definite plausibility and found support in
the preamble and other MSHA documents that were disseminated to the
industry.  C. Br. at 2, 5.  The (b)(4) and (b)(6) regulatory exemptions
are clearly contrary to Consol's proffered interpretations.  Further,
Consol does not cite the Commission to specific language in the preamble
or to other record evidence of the "other MSHA documents that were
disseminated to the industry."  Moreover, Consol had placed similar pumps
located in other areas of the mine in fireproof enclosures.  Tr. 90.
Thus, we conclude that Consol's belief  in the plausibility of its
interpretation was unreasonable under the circumstances.

     Consol also argues that the judge erred in stating that it was
not reasonable to assume "without first inquiring into MSHA's enforcement
position, that the pump qualified for an exemption."  C. Br. at 2, 4, 5
(citing 17 FMSHRC at 234).  Consol seems to suggest that the judge's finding
of unwarrantable failure was significantly predicated on its failure to
inquire first into MSHA's enforcement position.  In our view, the judge
correctly concluded that it was not reasonable for Consol to have believed
that the pump qualified for an exemption and that under such circumstances
Consol should have inquired into MSHA's enforcement position.

D.  "Seriousness" of the Violation

     Noting that the inspector cited the violation as not "significant
and substantial," the judge  concluded that the violation was serious.
17 FMSHRC at 234.  He found that, in the event of a fire reaching the
pump's fuel tank, the resulting smoke would have contaminated the intake
entry and escapeway with a reasonable likelihood of serious injury.  Id.

     The gravity penalty criterion under section 110(i) of the Mine
Act, 30 U.S.C.  820(i), is often viewed in terms of the seriousness
of the violation.  Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March
1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co.,
9 FMSHRC 673, 681 (April 1987).  Although the judge did not specifically
relate seriousness to gravity, or separately discuss the gravity criterion,
he did assess the penalty based on "all of the criteria in section 110(i)."
17 FMSHRC at 238.  Accordingly, we infer that the penalty was based in part
on the judge's conclusion that the violation was serious.

     Consol argues that because the pump was out of service, substantial
evidence does not support the judge's conclusion that the violation was
serious.  C. Br. at 8.  As previously discussed, substantial evidence
supports the judge's finding that the pump was not out of service. Consol
also argues that the judge erred in finding that the pump had a fuel tank
that posed a fire and smoke hazard C. Br. at 2, 8 (citing 17 FMSHRC at 234).
Although the pump did not have a fuel tank, we think the judge's finding
is harmless error. As the Secretary points out, the pump's motor did carry a
gallon of flammable oil.  S. Br. at 7 n.2; Tr. 83.  In addition, the pump
was not permissible.  Tr. 29.  The focus of the seriousness of the violation
is not necessarily on the reasonable likelihood of serious injury, which is the
focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.
Cf. Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (September 1987) ("gravity"
penalty criteria and special finding of S&S not identical although frequently
based on same or similar factual circumstances).  We conclude that, in light
of the presence of combustible material, substantial evidence supports the
judge's conclusion that the violation was serious.

                                 III.

                              Conclusion

     For all of the foregoing reasons, we affirm the judge's decision.


                         ________________________________
                         Mary Lu Jordan, Chairman

                         ________________________________
                         Marc Lincoln Marks, Commissioner

                         ________________________________
                         James C. Riley, Commissioner


**FOOTNOTES**

     [1]:   Commissioner  Holen participated in the consideration
of this matter, but her term  expired  before  issuance  of  this
decision.   Pursuant to section 113(c) of the Federal Mine Safety
and Health Act  of  1977, 30 U.S.C.  823(c), this panel of three
Commissioners has been  designated  to exercise the powers of the
Commission.

     [2]:  Section 75.340 provides, as pertinent:

               (a) Underground . . .  water pumps shall
          be  located in noncombustible  structures  or
          areas  or  equipped  with  a fire suppression
          system . . . .  This equipment also shall be-
          -

               (1)  Ventilated by intake  air  that  is
          coursed into  a  return  air course or to the
          surface  and  that is not used  to  ventilate
          working places; . . .
                         . . . .
                              (b) This section does not apply to-

                          . . . .
               (4) Pumps located on or near the section
          and that are moved  as  the  working  section
          advances or retreats; [and]
                               . . . .
                              (6) Small portable pumps.

     [3]:   The  judge inadvertently characterized  this  as  the
(b)(6) exemption.

     [4]:  Consol  also  argues  that  the  language  of  section
75.340(b)(4)   and  (6)  failed  to  give  fair  warning  of  the
Secretary's interpretation  of  the  regulation,  and that Consol
therefore  should not be held to have violated the regulation  or
engaged in unwarrantable conduct.  C. Br. at 4, 5-6,
7-8.  However,  Consol did not raise this argument in its PDR and
the Commission did  not  direct  sua  sponte review of the issue.
Under section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C.
 823 (d)(2)(A)(iii), the Commission's review is limited to those
questions raised by the PDR.  See also  29  C.F.R.    2700.70(f)
(1995); Chaney Creek Coal Corp. v. FMSHRC, 866 F.2d 1424,  1429 &
n.7  (D.C.  Cir.  1989).  Accordingly, we do not reach the notice
argument.  Furthermore, Consol did not raise this argument before
the  judge,  another   prerequisite   for  review  under  section
113(d)(2)(A)(iii) of the Mine Act.  The  Commission  has declined
to  address  arguments not presented to the judge.   E.g.,  Beech
Fork Processing, Inc., 14 FMSHRC 1316, 1316-17 (August 1992).

     [5]:  The  Commission  is  bound by the substantial evidence
test  when  reviewing  an  administrative   law  judge's  factual
determinations.   30  U.S.C.  823(d)(2)(A)(ii)(I).  "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)).   We  are  guided  by the  settled  principle  that,  in
reviewing  the  whole record, an  appellate  tribunal  must  also
consider anything  in  the record that "fairly detracts" from the
weight  of  the  evidence that  supports  a  challenged  finding.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).