SEPTEMBER 1987 

Commission Decisions 

09-30-87 

09-30-87 

09-30-87 

09-30-87 

09-30-87 

09-30-87 

~'<12-19-86 

NACCO Mining Company 

White County Coal Corporation 

Emerald Mines Corporation 

Greenwich Collieries 

Quinland Coals, Inc. 

Odell Maggard v. Chaney Creek Coal Corp. 

Garry Goff v. Youghiogheny & Ohio Coal Co. 

Administrative Law Judge Decisions 

09-08-87 

09-08-87 

09-10-87 

09-15-87 

09-18-87 

09-18-87 

09-21-87 

09-22-87 

09-23-87 

09-25-87 

09-25-87 

09-28-87 

09-29-87 

09-29-87 

09-29-87 

Sec. Labor for George Jones v. Dee Gold 

Mining Company 

Neil Sprague 

Paula L. Price v. Monterey Coal Co. 

Arnold Sharp v. Big Elk Creek Coal Co. 

Local 1810, UMWA v. NACCO Mining Company 

Consolidation Coal Company 

Freeman United Coal Mining Co. 

Utah Power and Light Company 

Sec. Labor for James C. Gray, Jr. v. 

Chaney Creek Coal Corp. etc. 

Timber Lakes Corporation 

Sec. Labor for Bryant M. Hatfield, Jr. v. 

Smith Brothers Construction Inc. 

Westmoreland Coal Company 

Richard W. Peters, Sr. v. Buckeye 

Industrial Mining Co., Inc. 

Jim Walter Resources, Inc. 

Jim Walter Resources, Inc. 

LAKE 85-87-R 1541 

LAKE 86-58-R Pg. 1578 

PENN 85-298-R Pg. 1590 

PENN 85-188-R Pg. 1601 

WEVA 85-169 1614 

KENT 86-1-D Pg. 1627 

LAKE 84-86-D 1630 

WEST 85-131-DM Pg. 1631 

WEST 87-129-M 

LAKE 86-45-D 

KENT 86-149-D 

LAKE 87-19-C 

WEVA 87-66 

LAKE 86-67 

WEST 87-101 

KENT 86-55-D 

Pg. 1660 

1662 

Pg. 1668 

Pg. 1671 

Pg. 1675 

Pg. 1678 

Pg. 1688 

Pg. 1690 

WEST 86-250-M Pg. 1692 

WEVA 87-156-D Pg. 1702 

HOPE 78-236 

LAKE 87-37-D 

SE 87-91 

SE 87-95 

Pg. 1705 

. 1707 

Pg. 1711 

Pg. 1713 

~·~rt was discovered that the decision, Garry Goff v. Youghiogheny and Ohio, 

LAKE 84-86-D was not published in its entirety in the December, 1986 volume. 

We are reprinting it at this time, but cites should refer to the December 

publication. 

SEPTEMBER 1987 

Review was granted in the following cases during the month of September: 

Western Fuels-Utah v. Secretary of Labor, MSHA, Docket No. WEST 86-113-R, 

etc. (Judge Maurer, August 4, 1987) 

Harley Smith v. Bow Valley Coal Resources, Inc., Docket Nos. KENT 86-23-D, 

KENT 86-84-D. (Judge Weisberger, August 19, 1987) 

Secretary of Labor on behalf of Bryan Pack v. Maynard Branch Dredging 

Company and Roger Kirk, Docket No. KENT 86-9-D. (Judge Fauver, August 20, 1987} 

Secretary of Labor on behalf of Joseph Gabossi v. Western Fuels-Utah, Inc., 

Docket No. WEST 86-24-D. (Judge Morris, August 21, 1987) 

No cases were filed in which review was denied. 

CO:M.MISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

NACCO MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

NACCO MINING COMPANY 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 30, 1987 

Docket No. LAKE 85-87-R 

Docket No. LAKE 86-2 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY: Backley, Doyle and Nelson, Commissioners 

This proceeding arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1982), and involves the issuance 

of a citation pursuant to section 104(d)(l) of the Mine Act by an 

inspector of the Department of Labor's Mine Safety and Health Administration ( 11MSHA11 ) as a result of an inspection conducted pursuant to 

section 10.3(g)(l) of the Act. ll Commission Chief Administrative Law 

ll Section 104(d)(l) states: 

If, upon any inspection of a coal or other mine, 

1541 
Judge Paul Merlin held that although a violation was established, the 

section 104(d)(l) citation was not properly issued because the cited 

violative event had occurred several days before the inspector visited 

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation is of 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he shall 

include such finding in any citation given to the 

operator under this [Act]. If, during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection (c) of this section to be 

withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the 

Secretary determines that such violation has been 

abated. 

30 u.s.c. § 814(d)(l). 

Section 103(g)(l) states in part: 

Whenever a representative of the miners or a miner 

in the case of a coal or other mine where there is 

no such representative has reasonable grounds to 

believe that a violation of this [Act] or a 

mandatory health or safety standard exists ... such 

miner or representative shall have a right to obtain 

an immediate inspection by giving notice to the 

Secretary or his authorized representative of such 

violation or danger .•.. Upon receipt of such 

notification, a special inspection shall be made as 

soon as possible to determine if such violation or 

danger exists in accordance with the provisions of 

this [Title]. If the Secretary determines that a 

violation or danger does not exist, he shall notify 

the miner or representative of the miners in writing 

of such determination. 

30 u.s.c. § 813(g)(l). 

1542 
the mine. The judge concluded that since the inspector had been engaged 

in the investigation of a past event rather than in an inspection of an 

existing condition, only a section 104(a) citation could be issued. 

8 FMSHRC 59 (January 1986)(ALJ). The Commission granted the petition 

for discretionary review filed by the United Mine Workers of America 

( 11UMWA11 ) and heard oral argument. We conclude that the Mine Act permits 

the issuance of a section 104(d)(l) citation under the circumstances 

presented in this case. Therefore, we reverse and remand. 

Nacco's Powhatan No. 6 mine is an underground coal mine located in 

eastern Ohio. On Friday, May 31, 1985, the miners' representative at 

the mine requested, by telephone and confirmatory letter, that MSHA 

conduct an examination of "long cuts" being made at the mine. 2/ The 

request referenced a specific long cut alleged to have occurred on the 

previous day. The letter stated that "[t]his re-occurring [sic] 

violation has been discussed with mine management several times since 

January 1985 by the UMWA and MSHA without getting this practice 

stopped." The letter further suggested that criminal action might be 

appropriate. 

MSHA inspectors arrived at the mine on the following Monday, June 

3, 1985. The inspectors went underground to the location where the long 

cut allegedly had occurred. Through observations and measurements, the 

inspectors determined to their satisfaction that a long cut had been 

made on May 30, and that in making the cut the continuous miner operator 

was under unsupported roof, at least six feet beyond the last permanent 

roof supports. On June 4, 1985, the inspectors returned to the mine and 

further questioned the crew, union representatives, and mine management 

about the long cut. On June 5, 1985, the inspectors issued to Nacco a 

citation pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), 

charging that the continuous miner operator's proceeding under unsupported roof constituted a violation of 30 C.F.R. § 75.200. 3/ The 

citation indicated that the violation was of a "significant and 

substantial" nature. 

On June 24, 1985, the MSHA sub-district manager reviewed the 

citation. He concluded that the citation should have been issued 

pursuant to section 104(d)(l) of the Mine Act because, in his opinion, 

the violation was the result of Nacco 1 s unwarrantable failure to prevent 

miners from proceeding under unsupported roof. He ordered the citation 

modified accordingly, At the subsequent evidentiary hearing, Nacco did 

not contest the allegation of a violation or that the viola' ion was 

2/ A "long cut" occurs when a continuous mining machine ( 11 continuous 

;iner") cuts coal from the coal face in such depth that the continuous 

miner operator is placed beyond the last permanent roof support and 

under unsupported roof. 

}/ In relevant part, section 75.200 prohibits persons from proceeding 

beyond the last permanent roof support, unless adequate temporary 

support is provided or unless such temporary support is not required 

under the approved roof control plan and the absence of such support 

will not pose a hazard to the miners. 

1543 
significant and substantial. Rather, Nacco argued that the citation was 

issued improperly under section 104(d) and that the violation was not 

caused by its unwarrantable failure to comply with section 75.200. 

In his decision, Judge Merlin held the section 104(d) citation to 

be invalid because it was based on an investigation of a past happening, 

rather than on an inspection of an existing condition. The judge relied 

upon the unreviewed decisions of three Commission administrative law 

judges: Westmoreland Coal Co., Nos. WEVA 82-304-R, etc. (May 4, 1983) 

(ALJ Steffey)(unpublished order); Emery Mining Corp., 7 FMSHRC 1908 

(November 1985)(ALJ Lasher); Southwestern Portland Cement Co., 7 FMSHRC 

2283)(December 1985)(ALJ Morris). 4/ The judge quoted with approval 

Judge Steffey's observations in We;tmoreland, supra, that section 104(d) 

restricts the issuance of unwarrantable failure sanctions to existing 

violations found during the course of an inspection and that Congress 

intended to distinguish between the terms "inspection" and "investigation" in the Mine Act. 8 FMSHRC at 61-66. The judge also noted Judge 

Lasher's statement in Emery, supra, that Congress viewed an investigation of a past occurrence as different from an inspection of a mine 

site, and that the Act does not permit a section 104(d) sanction to be 

issued based upon past occurrences. Judge Merlin noted that Judges 

Steffey, Lasher, and Morris agreed that when an inspector is engaged in 

the investigation of a past happening rather than an inspection of an 

existing situation, section 104(d) sanctions cannot be issued. 8 FMSHRC 

at 71. 

The judge found the reasoning of his colleagues persuasive and 

applied it to the facts at hand. The judge stated that when the 

inspectors went to the mine on June 3 and 4, 1985, they were looking 

into the circumstances of an event alleged to have occurred in the past 

-- the continuous miner operator having proceeded beyond the last 

permanent roof support on May 30, 1985. Because the inspectors were 

investigating a past happening rather than inspecting an existing 

condition, the judge held that they could not issue a citation under 

section l04(d). 8 FMSHRC at 71-72. Accordingly, the judge modified the 

citation to one issued under section 104(a), 

Turning to the penalty aspect of the case, the judge concluded 

that the violation was serious and that Nacco was grossly negligent in 

allowing the violation to exist, He assessed a civil penalty of $5~000, 

8 FMSHRC at 73-75, 

The United Mine Workers of America sought Commission review on the 

grounds that the judge erroneously interpreted the prerequisites for the 

issuance of a citation under section 104(d). We granted the UMWA's 

petition for discretionary review and heard oral argument in this and 

!±I Commission Administrative Law Judge William Fauver subsequently 

reached an opposite conclusion in Florence Mining Co., 9 FMSHRC 1180 

(June 1987)(ALJ), review directed, August 7, 1987. See also Rushton 

Mining Co., 9 FMSHRC 800 (April 1987)(ALJ Broderick)(distinguishing 

above decisions). 

1544 
three other cases that raise similar issues. ~/ 

The specific issue before us requires a determination of whether a 

section 104(d) citation may be issued for a violative condition that no 

longer exists when cited by the MSHA inspector. Such a determination 

must take into account the overall enforcement scheme of the Mine Act 

and its primary purpose of providing miners with more effective 

protection from hazardous conditions and practices. 30 U.S.C. § 801. 

See also Senate Subcommittee on Labor, Committee on Human Resources, 

95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 82-86 (1978)(statement of Senator Williams)("Mine 

Act Legis. Hist. 11 ). In line with this purpose, section 2(e) of the Act 

places primary responsibility upon "the operators of such mines with the 

assistance of the miners ..• to prevent the existence of such [hazardous] conditions and practices in such mines." 30 U.S.C. § 80l(e). 

As an incentive for operator compliance, the Act's enforcement 

scheme provides for "increasingly severe sanctions for increasingly 

serious violations or operator behavior. 11 Cement Division, National 

Gypsum Company, 3 FMSHRC 822, 828 (April 1981). Sections 104(a) and 

llO(a) provide that the violation of any mandatory standard requires the 

issuance of a citation and assessment of a monetary civil penalty. 

Under sections 104(b) and llO(b), if the operator does not correct the 

violation within the prescribed period, the more severe sanction of a 

withdrawal order is required, and a greater civil penalty is assessed. 

30 U.S.C. §§ 814(b) and 820(b). Under section 104(d), if an inspector 

finds a violation and also finds that the violation is of a significant 

and substantial nature and has resulted from the operator's unwarrantable failure to comply with the standard, a citation noting those 

findings is issued. This "section 104(d) citation" carries enforcement 

consequences potentially more severe than section 104(b) sanctions. QI 

If further unwarrantable failure violations occur within 90 days of the 

citation issued under section 104(d), unwarrantable failure withdrawal 

orders are triggered. Issuance of the withdrawal orders does not cease 

until an inspection of the mine discloses no unwarrantable failure 

violation. Kitt Energy Corp., 6 FMSHRC 1596 (July 1984), aff'd sub nom. 

UMWA v. FMSHRC, 768 F.2d 1477 (D.C. Cir. 1985). 

5/ Emerald Mines Corporation, 9 FMSHRC ~- (September 30, 1987); 

White County Coal Corp., 9 FMSHRC ~-(September 30, 1987); Greenwich 

Collieries, 9 FMSHRC ~ (September 30, 1987). 

QI The Secretary argues that only section 104(a) authorizes the 

issuance of a citation and that it is, therefore, improper to refer to a 

citation issued with section 104(d) findings, as here, as a "section 

104(d) citation." For convenience and clarity, we have found it useful 

to refer to a citation issued with section 104(d) findings as a section 

104(d) citation. Consolidation Coal Co., 6 FMSHRC 189, 191-192 

(February 1984). This shorthand form of expression is commonly employed 

and understood. It was used by the parties at the hearing and by the 

judge in his decision. Indeed, the citation here at issue was modified 

by the sub-district MSHA manager to a ''104(d) type citation." 

1545 
The threat of this 11 chain11 of citations and orders under section 

104(d) provides a powerful incentive for the operator to exercise 

special vigilance in health and safety matters because it is the conduct 

of the operator that triggers section 104(d) sanctions, not the 

coincidental timing of an inspection with the occurrence of a violation. 

Indeed, Congress viewed section 104(d) as a key element in the overall 

attempt to improve health and safety practices in the mining industry. 

See S. Rep. No. 181, 95th Cong., 2d Sess. 30-32 (''S. Rep.") reprinted in 

Mine Act Legis. Hist. 618-620. See also UMWA v. FMSHRC, supra, 768 F.2d 

at 1479. To read out of the Act the protections and incentives of 

section 104(d) because an inspector is not physically present to observe 

a violation while it is occurring distorts the focus and blunts the 

effectiveness of section 104(d). We discern no warrant for such a 

formalistic approach. 

The judge's invalidation of the use of section 104(d) for a prior 

violation and his conclusion that section 104(d) may be used for 

existing violations only, is not supported by the relevant statutory 

language. Section 104(d)(l) does not state that enforcement action may 

be taken only if the inspector finds a violation in progress. Rather, 

section 104(d)(l) is triggered if an inspector finds that there "has 

been a violation" of a mandatory health or safety standard. Use of the 

present perfect tense of the verb "to be" in this key context denotes a 

wide, not narrow, temporal range covering both past and present 

violations. Thus, by its own terms, section 104(d)(l) sanctions are 

applicable to prior as well as existing violations, and nothing in the 

text of section 104(d)(l) restricts their use solely to ongoing 

violations. 

Nor can the insistence on the inspector's personal observation of 

an existing violation be reconciled with the obvious purpose of section 

104(d). Throughout section 104(d), enforcement action is consistently 

linked to the inspector's determination that a violation has resulted 

from the operator's unwarrantable failure to comply with a mandatory 

standard, The focus in section 104(d) is constantly upon the operator's 

conduct in failing to comply with the cited mandatory standard, not upon 

the current detection and existence of the violation. Under the 

construction urged by Nacco, unwarrantable failure findings would 

frequently be unavailable despite unwarrantable conduct on the part of 

an operator. 

We have resisted previous invitations to give the Mine Act a 

technical interpretation at odds with its obvious purpose. In 

Westmoreland Coal Co., 8 FMSHRC 1317, 1323-27 (September 1986), a case 

involving the right of miners to compensation under section 111 of the 

Mine Act, 30 U.S.C. § 821, we concluded that the chronological sequence 

in which orders of withdrawal are issued is not determinative of the 

right to compensation. We looked to the purpose of section 111 -- added 

incentive for operator compliance through a graduated scheme of 

compensation tying enlarged compensatory entitlement to increasingly 

serious operator conduct. We noted the focus of section 111 as a whole 

on operator conduct, and we declined to adopt a technical interpretation 

of section 111 that thwarted its purpose. 

1546 
We follow a similar approach here and interpret section 104(d) in 

a manner consistent with its purpose. Congress deemed that miners 

should be protected from the hazards of recurring violations caused by 

an operator's unwarrantable failure through the deterrent effect of the 

progressively severe sanctions of section 104(d). Legis. Hist. at 619. 

Yet, application of the judge's holding produces results at odds with 

this intent. Under the judge's opinion, an operator who commits an 

unwarrantable failure violation that is not detected by the inspector 

until it has ceased to exist is free of the very sanction intended to 

prevent similar failures in the future. The fact that such a violation 

could be cited under section 104(a) and that a penalty would be assessed 

for the violation, does not compensate for the loss of the heightened 

awareness of unwarrantable violations that attends section 104(d) 

sanctions and that is aimed at preventing such violations from occurring 

in the first instance. 

Further, detection of a violation after it has ceased to exist is 

not uncommon. Many violations by their very nature cannot be, or are 

unlikely to be, observed or detected until after they occur. For 

example, the failure to perform a required pre-shift examination, 

30 C.F.R. § 75.303, is usually detected after the shift has commenced, 

and most health violations are determined after the fact of violation 

through the analysis of samples and other data. See,~·· 30 C.F.R. 

§ 70.100. In fact, the violation at issue here, proceeding beyond the 

last permanent roof support when no temporary support is provided, is 

the type of violation that is unlikely to occur in the presence of the 

inspector. Were we to agree with the approach adopted by the judge, the 

statutory disincentive for operator misconduct would be lost. Zf 

Nacco asserts that because section 104(d) refers only to 

violations found "upon any inspection," whereas section 104(a) refers to 

violations found "upon inspection or investigation, 11 Congress intended 

to distinguish between enforcement actions based upon an inspection and 

those based upon an investigation. Nacco argues that an "inspection" 

denotes the time in which an inspector is physically present at the mine 

(and actually observes a violation in progress), whereas an 11 investigation11 denotes an inspector's inquiry into a past violation. Therefore, according to Nacco, section 104(d) applies only to ongoing 

violations observed by the inspector. 

Although we are not required in this proceeding to decide the 

meaning of "inspection" and "investigation" for all purposes under the 

Mine Act, we are satisfied that, as used in section 104(d), Congress did 

not intend the distinction urged by Nacco and approved by the judge. In 

interpreting the conditions under which a section 104(d) sanction may 

issue, we do not find significant the inclusion of the terms "inspection 

or investigation" in section 104(a) and the term "inspection" alone in 

section 104(d). The words are not defined in the Mine Act, and common 

ZI Although Nacco argues that untoward problems in terms of the "time 

sequence" of section 104(d) will arise if section 104(d) is used to cite 

violations that no longer exist, no issue with respect to the commencement and termination of the ninety-day period is before us on review. 

1547 
usage does not limit the meaning of "inspection" to an observation of 

presently existing circumstances nor restrict the meaning of ''investigation" to an inquiry into past events. Webster's Third New International Dictionary (Unabridged) 1170, 1189 (1971) ("Webster's"). Both 

words can encompass an examination of present and past events and of 

existing and expired conditions and circumstances. ~/ 

The first major reference to both terms appears in section 103 of 

the Act, 30 U.S.C. § 813, which pertains to inspections, investigations 

and record keeping. While it is true that section 103 indicates that 

inspection and investigation are, to some extent, distinct, it is also 

clear that, as in common usage, the concepts are not intended to be 

mutually exclusive. In particular, it is clear that an inspection is 

not meant to preclude an inquiry into past events. Section 103(g) (n. 1 

supra) provides to the representative of miners the right to obtain an 

immediate "inspection" whenever the representative has reasonable 

grounds to believe that a violation of a mandatory health or safety 

standard exists. There is nothing in the language of section 103(g) 

that requires the violation to be ongoing when the inspector arrives at 

the mine site. As a practical matter, the violation may have been 

corrected shortly after the request of the miners' representative and 

before the inspector reaches the mine. Yet the inspector is nonetheless 

on an "inspection" and, if he finds that a violation has occurred, he 

may cite it using the full panoply of sanctions available under the Act. 

Indeed, this case was instituted on the basis of a section 103(g) 

inspection, requested by the representative of miners, after the 

violation had occurred. 

Further, we find in the legislative history of section 104(d) 

indications that section 104(d) sanctions are not restricted to 

occasions when an inspector observes an existing violation. Section 

104(d) of the Mine Act was carried over without substantive change from 

section 104(c) of the 1969 Coal Act. 30 U.S.C. § 801 et seq. (1976) 

£/ See also,~·· Atlantic Cleaners & Dyers~ Inc. v. U.S., 286 U.S. 

427 (1932)-: -

Most words have different shades of meaning and 

consequently may be variously construed, not only 

when they occur in different statutes, but when used 

more than once in the same statute or even in the 

same section. 

It is not unusual for the same word to be used 

with different meanings in the same act, and there 

is no rule of statutory construction which precludes 

the courts from giving to the word the meaning which 

the legislature intended it to have in each 

instance. 

286 U.S. at 433-34. 

1548 
(amended 1977) ("Coal Act"). When Congress was contemplating the 

provision that became section 104(c)(l) of the Coal Act, the House Bill 

defined the term "inspection" as "the period beginning when an 

authorized representative of the Secretary first enters a coal mine and 

ending when he leaves the coal mine during or after the coal-producing 

shift in which he entered.u Senate Subcommittee on Labor, Committee on 

Labor and Public Welfare, 94th Cong., 1st Sess. Part I Legislative 

History of the Federal Coal Mine Health and Safety Act of 1969, at 917-

918 (1975)(1'Coal Act Legis. Hist."). Judge Steffey in Westmoreland, 

supra, quoted by Judge Merlin with approval (8 FMSHRC at 63), viewed 

this definition as support for a conclusion that Congress intended to 

distinguish between an "inspection" and an "investigation" because it 

regarded an inspection as an examination limited to a single day. 

However, the House Bill definition of inspection was dropped at 

conference in favor of the Senate version of section 104(c)(l), which 

provided for findings of unwarrantable failure at any time during the 

same inspection or during any subsequent inspection within 90 days of 

the issuance of the initial 104 ( c )( 1) notice of violation "without 

regard to when the particular inspection begins or ends." Coal Act 

Legis. Hist. at 1507. The Senate version was enacted as section 

l04(c)(l) of the Coal Act, and reflects a clear congressional understanding that an inspection may take longer than one day (particularly 

at large mines), that an inspector's inquiry into unwarrantable failure 

may take more time than any one-day period that he is in a mine, and 

that a finding of unwarrantable failure may require examination into 

events and actions "without regard to when the particular inspection 

begins or ends." Coal Act Legis. !!i§!_. at 1507. 

Nacco makes much of the fact that although Congress did not 

substantively change the language of section 104(c) of the Coal Act when 

it was carried over as section 104(d) of the Mine Act, Congress did 

change section 104(a) of the Mine Act by authorizing the Secretary to 

issue citations upon an inspector 1 s 11 belief" that an operator violated 

the Act and upon either an "inspection or an investigation. 11 For Nacco, 

the inspector 1 s belief can be premised upon a retrospective inquiry into 

past events and circumstances, or upon an analysis of present events and 

circumstances. Nacco finds the change in section 104(a) compelling 

evidence that Congress distinguished between enforcement actions that 

can be based upon past or present conditions and those that must be 

based solely upon present conditions. 

We are not persuaded. The fact remains that there is no 

indication in the Mine Act legislative history that Congress intended 

the change in section 104(a) to affect the application of section 

104(d) 1 s unwarrantable failure sanctions in any way. In fact, it has 

been asserted, by way of explanation, that the change in section 104(a) 

merely reflects the drafters' technical reliance on the language of the 

Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. 

(1970), in amending the Coal Act rather than an intent to change the 

circumstances under which a section 104(d) citation can be issued. 1 T. 

Biddle, Coal Law & Regulations § 9.03[2](b] (1968). We are reluctant to 

draw substantive inferences from the change where evidence of express 

legislative intent is lacking. 

1549 
Nor are we persuaded by Nacco's argument that use of the term 

"finds" in section 104(d) perforce demonstrates that the inspector must 

personally observe an ongoing violative condition or practice. In 

ordinary usage, the term1 s use is not confined to the mere accidental 

discovery of things but extends as well to detection by effort, 

analysis, and study. Webster's at 851-852 (1971). In the context of 

section 104(d), we hold that 11 find11 is used in an adjudicative sense, 

meaning that the inspector must conclude that an unwarrantable violation 

has occurred based upon whatever process of discovery or examination may 

be appropriate. 

In sum, the result reached by the judge frustrates the deterrent 

power of section 104(d). After searching the language and purpose of 

the Act, as well as the legislative histories, we find no evidence that 

Congress intended to place such a severe limitation on so important an 

enforcement mechanism. 9/ Consequently, and for the foregoing reasons, 

we conclude that a section 104(d) sanction may be based upon a prior 

violation and that the judge erred in holding that the citation was 

improperly issued under section 104(d) of the Mine Act. We reverse the 

judge in this regard. 

At the hearing Nacco challenged the validity of the section 

104(d)(l) citation on the grounds that the sub-district manager ordered 

the modification as a matter of policy, and that all such roof control 

violations were automatically deemed to be unwarrantable without regard 

to the particular facts involved. The judge made mention of the subdistrict manager's decision to modify the citation and appears to have 

inferred that the modification improperly rested upon general policies 

without consideration of the particular circumstances of the violation. 

8 FMSHRC 72-73. However, the judge made no conclusions on this issue 

given his disposition of the case. Since questions may remain regarding 

the sub-district manager's decision to have the citation modified from a 

section 104(a) citation to section 104(d)(l) citation, the judge should, 

as part of his disposition, clarify his finding as to whether the 

modification was proper within the statutory framework. If he 

determines that the sub-district manager's modification was proper, he 

shall then determine whether the violation resulted from an 

unwarrantable failure to comply with the standard. 

QI Moreover, this case involves a factual situation that begins with 

an exercise of miners 1 rights under section 103(g)(l). As noted, that 

section provides that the miners 1 representative may obtain an 

"immediate inspection11 of the mine by MSHA whenever the representative 

"has reasonable grounds to believe that a violation of this Act or a 

mandatory health or safety standard exists, or an imminent danger 

exists .... " 30 U.S.C. § 813(g)(l). Congress intended that through the 

exercise of this "important right" miners are to "play an integral part 

in the enforcement of the mine safety and health standards." Mine Act 

Legis. Hist. at 617-618. Yet, as the facts of this case illustrate, 

were we to hold that an operator must be caught in the act of violation 

before the appropriate section 104(d) enforcement actions could be 

taken, the miners' self-help remedy embodied in section 103(g)(l) could 

be eroded seriously. 

is so 
Accordingly, and for the foregoing reasons, we reverse the judge's 

conclusion that a section 104(d) citation may not be issued under the 

kind of circumstances presented by this case. We vacate the judge's 

subsequent modification of the section 104(d) citation to a section 

104(a) citation, and remand for further proceedings consistent with this 

decision. 

Richard V. Backley, :c~~1Uv Commissioner 

L. Clair Nelson, Commissioner 

1551 
Commissioner Lastowka, concurring: 

I am in total agreement with the majority's conclusion that the 

administrative law judge erred in determining that a citation could not 

be issued properly pursuant to section 104(d)(l) of the Mine Act in the 

circumstances of this case. I believe, however, that certain aspects 

of the rationale compelling this conclusion deserve emphasis and that 

some of the arguments of the operator and the dissent need to be 

addressed more directly. 

The question of law before us can be stated in general terms as 

follows: Can a finding by MSHA, that a violation of the Mine Act was 

caused by an "unwarrantable failure" on the part of a mine operator, be 

included in a citation issued for a violative condition that occurred 

but is no longer in existence so as to be observable at the time of an 

MSHA inspection? The more specific question posed is whether the administrative law judge erred in concluding that in the circumstances of the 

present case it was procedurally improper for MSHA to find that the 

violation resulted from Nacco's unwarrantable failure. As explained 

below, both of these questions must be answered in the affirmative. 

The relevant facts are undisputed. A miners 1 representative 

reported to MSHA a violation alleged to have occurred at Nacco's mine. 

The reported violation involved an operator of a continuous mining 

machine extracting coal to an excessive depth such that he impermissibly 

placed himself under an unsupported portion of the mine's roof. The 

report to MSHA further stated that this type of violation was recurring 

at the mine despite past discussions with mine management by both MSHA 

and the United Mine Workers of America. The miners' representative 

requested "an immediate investigation" by MSHA of the incident and 

suggested that criminal prosecution under the Mine Act might be 

warranted. (Exh. GX-4). 

Pursuant to this request, two MSHA inspectors went to Nacco 1 s mine. 

They reviewed the mine 1 s daily report books and saw no reference to the 

incident. They proceeded underground. They observed the location of 

the reported incident and took measurements of the width and depth of 

the mined area and the spacing of the roof support bolts that had been 

installed. The following day the inspectors questioned miners, management personnel and representatives of the miners concerning the incident. 

The inspectors determined that, as had been reported to MSHA, the operator 

of the continuous mining machine had proceeded under unsupported roof in 

violation of 30 C.F.R. § 75.200. They issued a citation alleging a violation and indicated on the citation that it was issued pursuant to 

section 104(a) of the Mine Act, They also indicated on the citation that 

they found the violation to be a "significant and substantial" violation. 

Fifteen days after the citation was issued, it was modified at the 

direction of the inspectors' supervisor to include a further finding 

that the violation resulted from Nacco's "unwarrantable failure to 

comply" with the applicable mandatory standard. 30 U.S.C. § 814(d)(l). 

1552 
Nacco does not contest that the incident occurred, that the mandatory standard was violated or that the violation was significant and 

substantial. Rather, the sole focus of this litigation is the propriety 

of the additional, subsequent finding that the violation resulted from 

Nacco's "unwarrantable failure." 

Nacco's concern over the making of the unwarrantable failure 

finding has its roots in the more severe enforcement consequences 

triggered by the presence of such a finding in a citation. For present 

purposes, those consequences can be succinctly highlighted by quoting a 

summary of the statutory provision by the U.S. Court of Appeals for the 

District of Columbia Circuit: 

An "unwarrantable failure" citation commences a 

probationary period: If a second violation 

resulting from an "unwarrantable failure" is found 

within 90 days, the Secretary must issue a "withdrawal 

order" requiring the mine operator to remove all persons 

from the area ••• until the violation has been abated. 

Such withdrawal orders are among the Secretary's most 

powerful instruments for enforcing mine safety. 

Once a withdrawal order has been issued, any subsequent 

unwarrantable failure results in another such order. 

This "chain" of withdrawal order liability remains in 

effect until broken by an intervening "clean" inspection. 

That is, "an inspection of such mine [which] discloses 

no similar violations." 30 U.S.C. § 814(d) (2). 

UMWA v. FMSHRC and Kitt Energy Corp., 768 F.2d 1477, 1479 (D.C. Cir. 

1984)(emphasis added). 

There is no dispute in the present case that the enforcement effect 

of an unwarrantable failure finding made pursuant to section 104(d) is 

as described above. What is disputed, however, is the extent of the 

availability of this statutory mechanism to certain violative 

situations, vizo, whether an unwarrantable failure finding can be made 

in conjunction:-with a citation issued for a violative condition that 

occurred but is no longer in existence so as to be observable by an 

MSHA inspector. 

The answer to this question must first be sought in the language of 

section 104(d)(l). Quotation of the first sentence of the section and 

identification of its discrete components serves to focus the inquiry: 

[l] If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary [2] finds that 

there has been a violation of any mandatory health or 

safety standard, and [3] if he also finds that, while 

the conditions created by such violation do not cause 

imminent danger, such violation is of such nature as 

could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety 

1553 
and health hazard, and [4] if he finds such violation 

to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or 

safety standards, [5] he shall include such finding 

in any citation given to the operator under this Act. 

30 U.S.C. § 814(d)(l). (Bracketed numbers added). 

The arguments in support of the procedural validity of the Secretary's 

action in issuing the citation in this case, reduced to their essence, 

are straightforward: Each element of section 104(d)(l) being met, the 

citation properly was issued pursuant to section 104(d)(l). In my opinion, 

based on the undisputed facts, the procedural history recited above, and 

the plain text of section 104(d)(l), there is no apparent procedural error 

associated with the Secretary's action in issuing the contested citation 

pursuant to section 104(d)(l). There was: (l) an inspection; (2) a finding 

of a violation; (3) a significant and substantial finding; (4) an unwarrantable failure finding; and (5) all of the above findings were included in a 

citation issued to the operator. The opposite conclusion is advanced 

by the operator and the dissent with such vigor, however, that a closer 

examination of their contentions should be undertaken to determine whether 

there is a less apparent, but nevertheless fatal flaw in the Secretary's 

actions. 

Clause [l] of the first sentence of section 104(d)(l) provides that 

the actions identified in clauses [2] through [5] be taken "upon any 

inspection of a coal •.• mine". (Emphasis added). Much is made by the 

operator and the dissent of the fact that the word "inspection" and the 

word "investigation" are both used in the Mine Act in referring to and 

describing the various enforcement activities of the Secretary authorized 

by the Act. In some instances both words appear in the same provision 

(e.g., § 104(a), § 107(a)), but in other provisions only one of the 

words appears (e.g., § 103(b)(investigation), § 104(d)(inspection), 

§ 104(e)(inspection) and§ 105(c)(2)(investigation)). 

The basic point of the arguments highlighting the Mine Act's varying 

usage of the words !!inspection" and "investigation" is that the words are 

different their meanings are different and a distinctive impact on the 

Secretary's enforcement activities and the consequences flowing therefrom 

was intended depending on the particular word used in a particular statutory provision, As specifically related to the principal issue presented 

in this case, the argument advanced is that because clause [l] of section 

l04(d) (1) refers only to "inspections", the special findings provided for 

in clause [ 3 J ("significant and substantial") and clause [ 4) ("unwarrantable failure") cannot appropriately be included in citations issued as 

a result of 11 investigations" by the Secretary. 

Despite the force with which this argument is advanced, extensive 

consideration of its merits is unnecessary and inappropriate in the 

present case. The fact is that the citation at issue was issued "upon 

an inspection" of the mine, It is undisputed that the inspectors were 

at Nacco's mine pursuant to a request by a representative of the miners 

that MSHA look into the circumstances surrounding a reported violation 

1554 
of the Act. See, e.g., Oral Arg. Tr. at 47-48. The statutory basis for 

the miners request and MSHA's prompt response thereto is section 103(g)(l). 

This section provides: 

Whenever a representative of miners or a miner .•• 

has reasonable grounds to believe that a violation 

of this Act or a mandatory health or safety standard 

exists, or an imminent danger exists, such miner or 

representative shall have a right to obtain an 

immediate inspection by giving notice to the Secretary or his authorized representative of such violation or danger •.••. Upon receipt of such notification, 

a special inspection shall be made as soon as possible 

to determine if such violation or danger exists •.•. 

30 U.S.C. § 813(g)(l)(emphasis added). 1/ Therefore, because the citation 

disputed in this case was issued "upon an inspection" conducted pursuant 

to section 103(g)(l), it is unnecessary here to address the contention 

that citations cannot be issued pursuant to section 104(d) where through 

the course of an MSHA "investigation" it is determined that violations 

have occurred even though they are no longer in existence. That question 

appropriately is addressed in a case that actually poses the issue. 

The next basis for the argument that the provisions of section 

104(d)(l) were not intended to be applied to violations that occurred 

but are no longer in existence at the time of an MSHA inspection centers 

on that section's use of the word "finds" as the predicate for actions 

taken thereunder. (Clause [2] If an inspector "finds that there has 

been a violation"; clause [3] "if he also finds that" the violation is 

significant and substantial; and clause [4] "if he finds such violation 

to be caused by an unwarrantable failure")(emphasis added)). Nacco 

argues that the plain meaning of "find" is "to happen on; come upon; 

meet with; discover by chance". Nacco's brief at 12, citing Webster's 

New World Dictionary 523 (2d Coll. ed. 1976). It asserts that a violative condition that no longer exists cannot be happened upon or discovered by chance and therefore cannot be "found" during an inspection 

within the meaning of section 104(d) (1), The Secretary and the 1JMWA 

argue in opposition that in section 104(d)(l) the word "finds" is used 

in its adjudicative sense to describe the reaching of a conclusion by 

an inspector. 

In my opinion, the operator's argument that the use of the word 

"finds'' in section l04(d) (1) requires the inspector to discover a presently existing violative condition is defeated by a plain reading of 

the section, Clause [2] states: if an inspector "finds that there has 

been a violaton. , .. " The use of the phrase "finds that" clearly refers 

to a conclusive finding rather than a finding in the nature of a chance 

1/ Although a suggestion that section 103(g)(l) itself was intended by 

Congress to be applicable only to presently existing violations has been 

proffered, it has been advanced with little vigor in a footnote to the 

operator's brief. See Nacco's brief at 15 n. 17. In fact, even this 

limited espousal ofa-narrow reading of the text of section 103(g) (1) 

was disavowed at oral argument before the Commission. See Oral Arg. 

Tr. at 52-53. 

1555 
discovery. Further, the precise conclusion described ("that there has been 

a violation") by its own terms includes, rather than precludes, violations 

that occurred but are no longer present when an inspector arrives at a mine. 

To equate the phrase 11 that there has been a violation" with the phrase "that 

there is a presently existing violation" is to give a tortured rather than a 

plain reading to clause [2]. The text of clauses [3] and [4] also is directly 

contrary to the argument advanced by Nacco. In describing further actions to 

be taken by the inspector, clauses [3J and [4] respectively provide that "if 

he also finds that ••• such violation" is significant and substantial and "if 

he finds such violation to be caused by an unwarrantable failure •••• " Again, 

both of these uses of the word "finds" plainly are in the sense of conclusive 

findings; the inspector must make determinations as to whether the level of 

danger posed by a violation and the nature of the operator's conduct associated 

with the violation meet the thresholds of governing legal tests. These types 

of determinations are not "chance discoveries" or conditions "happened upon." 

Rather, they are determinative findings or conclusions arrived at through the 

faculty of mental reasoning. That this is the plain meaning of the word "finds" 

as used in section 104(d)(l) is further underscored by clause [5] 1 s provision 

that the inspector "shall include such finding[s] in any citation given to the 

operator under this Act." (Emphasis added).];_/ 

Furthermore, clause [5] 1 s provision that such findings shall be included 

"in any citation" issued to the operator (emphasis added), by its plain terms 

authorizes, rather than prohibits, the making of unwarrantable failure findings 

in any citation, including a citation issued for a violation that occurred out 

of the sight of an MSHA inspector. 

Therefore, I conclude that a plain reading of section 104(d)(l) requires 

a conclusion that the Secretary properly can issue a citation thereunder containing findings that a violation occurred but no longer exists, that the 

violation is a significant and substantial violation and that the violation 

resulted from an unwarrantable failure by the operator to comply with a mandatory standard. '}../ 

2/ Nacco's reliance on Holland v, United States, 464 F, Supp. 117 (W.D, 

Ky, 1978), to support its interpretation of section 104(d) is unpersuasive, 

The Holland court's discussion of section 104(d) arose in the context of a 

tort claim based on negligent inspection, a context clearly distinguishable 

from the enforcement case before us. Even assuming its applicability, and 

further assuming that Holland supports the proposition that a violation must 

be observed by an inspector to be cited under section 104(d), I would respectdisagree, 

3/ The cite, and the majority and dissenting opinions discuss in 

some detail, the legislative history pertaining to the origins of section 

104(d), Even when the meaning of statutory text appears clear on its face, 

it is not inappropriate to examine legislative history for any further 

enlightenment as may be available concerning congressional intent. Train v. 

Colorado Public Interest Research Group, 420 U.S. 1, 9 (1975). See 2A Sutherland Statutory Construction, § 48.01, p. 278 (4th ed. 1984). Accordingly, I 

have reviewed the proffered passages and the arguments based thereon. I find 

in the legislative history absolutely no indication that Congress specifically 

focused upon or had any reason to be aware of the nuance to the enforcement of 

section 104(d) that has been suggested and scrutinized in this case. Although 

the advocates on both sides of the issue can extract isolated words and phrases 

from the legislative history and interpret them to support their positions, I 

(Footnote continued) 

1556 
Even if the Secretary is not precluded on the face of section 

104(d)(l) from issuing citations thereunder for violations no longer 

in existence when an MSHA inspector is present at the mine, Nacco and 

the dissent argue that such action is nonetheless improper because it 

runs directly counter to the fundamental purpose and logic underlying 

section 104(d). The operator repeatedly describes section 104(d) as a 

"time critical" provision and argues that once a violative condition has 

ceased to exist the appropriate time for proceeding under section 104(d) 

also has ceased. Nacco submits that the purpose of section 104(d) "is 

to encourage compliance, not to punish an operator" and that to allow 

citations under section 104(d) of violations that are no longer in 

existence at the time of an MSHA inspector's arrival at the mine leads 

to the "Kafkaesque" and "bizarre" result that a withdrawal order would 

be issued for a hazardous condition that is no longer present, Nacco's 

brief at 20-21. The dissent echoes these themes in asserting that "the 

Secretary ••• is motivated more by retribution than by the protection of 

miners when he issues a section 104(d) citation or withdrawal order for 

a hazard that no longer exists" and that in such circumstances "bald 

harassment becomes inevitable." Dissent at 32, 36. 

Contrary to these characterizations of the cataclysmic effect of our 

upholding the Secretary's right to proceed as he did in this case, the 

result we reach not only is consistent with the plain langugage of section 

104(d) as discussed above, but also is entirely consistent with the 

enforcement logic underlying the section as discussed below. Furthermore, 

in light of the operator's and the dissent's predictions of the dire consequences that will result from our upholding the Secretary's actions, it 

is important to underscore the fact that our decision is simply an affirmation of the Secretary's right to continue to enforce this provision as it 

has always been enforced under both the 1977 Mine Act and its predecessor 

statute, the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 

et seq, (1976)(amended 1977) 

The feature that distinguishes section 104(d) from other enforcement 

provisions in the Mine Act is its authorization of the Secretary to find 

a violation to have been caused by an unwarrantable failure of the operator to comply with a standard. No other provision in the Mine Act concerns 

itself with whether the conduct of an operator in conjunction with a violation was "unwarrantable." The importance of an unwarrantable failure 

finding in a citation stems from the probationary effect triggered by its 

presence as was described at the outset of this opinion (supra at 2) by 

quoting the court of appeals decision in Kitt Energy Corp. As described 

therein, once a citation containing an unwarrantable failure finding and 

a significant and substantial finding has been issued, any further violation also caused by an unwarrantable failure within 90 days requires 

issuance of a withdrawal order, as do still further violations until a 

complete, clean inspection of the mine has taken place. 

Fn. 3/ continued 

find none of the referenced passages so illuminating on the question at issue 

as to justify any interpretation in conflict with a plain reading of section 

104(d). UMWA v. FMSHRC, 671 F.2d 615, 621 (D.C. Cir. 1982), cert. denied~ 459 

U.S. 927 (1982); United States v. U.S. Steel Corp., 482 F.2d 439, 444 (7th Cir. 

1973), cert. denied, 414 U.S. 909 (1973). See also 2A Sutherland, supra. 

1557 
The plain focus of section 104(d)'s unique enforcement scheme is on 

the conduct of an operator in relation to an occurrence of a violation. 

Where a violation results from an operator's unwarrantable failure, the 

statute requires that a higher toll be exacted from the operator than 

is exacted in situations where, although a violation occurred, the 

operator has not acted unwarrantably. In arguing that the special 

provisions of section 104(d) are not logically applied to violations 

that occurred but no longer exist, the operator and the dissent ignore 

the section's focus on the conduct of the operator, which would be the 

same regardless of whether an inspector observed the violation. They 

further overlook the fact that the Secretary's inquiry into whether an 

operator's conduct in relation to a violation was unwarrantable, will be 

precisely the same type of inquiry undertaken in precisely the same manner 

regardless of whether the violation actually was observed by an inspector. 

Simply put, determination of whether an operator's conduct in relation to 

a violation was unwarrantable is not at all contingent on or affected by 

whether a violative condition remains in existence at the time of inspection. 

Concomitant with their failure to recognize that the operator's 

conduct, rather than the timing of the inspector's arrival, is the focal 

point of section 104(d), the operator and the dissent erroneously assert 

that proceeding under section 104(d) where a violative condition is not 

presently in existence serves no safety purpose and constitutes meaningless punishment. If this is true a remarkable transformation has been 

worked. The use of one of "the Secretary's most powerful instruments for 

enforcing mine safety" (Kitt Energy, supra, 768 F.2d at 1479) has been 

reduced to nothing more than purposeless punishment unrelated to the 

safety of the Mine Act. 

The essence of the argument that no safety purpose is served by proceeding under section 104(d) for violations not discovered during their 

existence can be cast in terms of the following syllogism: (1) Hazardous 

conditions threaten miners' safety; (2) no hazardous condition exists if 

a violative condition is not presently in existence; (3) therefore miners 1 

is not threatened in these circumstances. The fallacy in this 

syllogism lies in its second premise. Contrary to the arguments of Nacco 

and the dissent 0 a very significant safety concern is presented in situations where an inspector determines that a violation occurred even though 

the violative condition no longer exists. Furthermore, such situations, 

like those where violative conditions are observed by an inspector, 

appropriately can be addressed pursuant to the procedures set forth in 

section 104(d) with no damage to that section 1 s underlying enforcement logic. 

To be sure, the most clear cut example of a hazard jeopardizing 

miner is an observable physical condition that is in violation 

of an applicable mandatory standard. Where such a violative condition 

is observed by an inspector and is determined to have resulted from 

unwarrantable conduct by the operator, the section 104(d) probationary 

scheme indisputedly is appropriately invoked. A significant threat to 

miner 1 s safety also. is presented, however, by situations such as that 

in the present ~ase where a violative condition has occurred but has 

ceased to exist prior to the inspector's arrival at the mine. In fact, 

the level of danger posed in such circumstances may far surpass that 

posed by violations observed by an inspector. 

1558 
At the moment that a mandatory standard is violated, the immediate 

threat to miner safety is identical regardless of whether an inspector 

is present to observe the violative act. In both instances a hazard has 

occurred and miner safety has been jeopardized. Beyond this initial 

exposure, however, the level of harm that is posed by an unobserved 

violation begins to transcend that posed by an observed violation for 

two reasons. First, if an inspector observes a violation being committed, 

he will immediately order its cessation and the associated threat of harm 

to the miner will end. Where an inspector is not present to intervene, 

however, the violative act and the associated hazard will likely continue 

to exist until the work task being performed in a violative manner is 

completed. Second, where a violation has not been observed by an inspector the violative conduct is more likely to be repeated in the future due 

to the lack of any immediate intervening sanction directed at the violative 

act dissuading its repetition. This latter consideration is forcefully 

illustrated in the present case by the recurring instances of miners 

working under unsupported roof at Nacco's mine that prompted the miners' 

representative's complaint to MSHA and request for intervention. Therefore, 

despite Nacco's and the dissent's suggestions to the contrary, the hazard 

or threat to miner safety posed by violations that are not observed by 

MSHA inspectors often will exceed, in duration as well as instances of 

exposure, the hazard posed by violations that happen to be caught by 

inspectors during the period of their existence. 

Since violations that occurred but were not observed by MSHA 

inspectors during the period of their existence pose at least as great, 

if not greater, danger to miner safety as violations that are observed, 

the necessity and logic of applying the enforcement procedures in section 

104(d) to unobserved as well as observed violations is evident. In both 

instances MSHA inspectors will have determined that violations of mandatory standards occurred. In both instances citations specifying the 

nature of the violations and addressing abatement measures will be 

issued. 4/ In both instances the inspectors will determine whether 

the violation resulted from the operator's unwarrantable conduct and, 

if so, the operator will be put on notice that further unwarrantable 

violations will result in the cessation of mining operations through 

the issuance of withdrawal orders. In short, in both instances the 

important sanctions Congress provided in section 104(d) can be 

logically invoked and effectively directed at the precise type of 

aggravated operator conduct to which section 104(d) was intended to 

be applied. 

For the foregoing reasons, as to the question of law before us~ I 

agree with the majorityvs conclusion that the Secretary is not barred 

from issuing a citation pursuant to section 104(d)(l) of the Mine Act 

for a violation that occurred but is no longer in existence so as to be 

observable during an MSHA inspection. 

4/ Abatement of an observed instance of a miner working under unsupported roof normally would involve removal of the miner from the unsafe 

area and instruction of the miner, and others if appropriate, concerning 

the need for future compliance with roof control standards. Abatement 

of a similar, but unobserved, violation necessarily would emphasize the 

latter. 

1559 
Of course, the Secretary's action in proceeding under section 104(d) is 

subject to challenge and review, like any other secretarial enforcement action, 

to determine whether, in a given set of circumstances, the Secretary has acted 

arbitrarily, capriciously or otherwise not in accordance with law. Considered 

in the abstract, it may be possible that the Secretary's invoking of section 

104(d) sanctions for a violation that occurred far in the past could, depending 

on the particular factual context, constitute impermissible enforcement action. 

See generally dissent at 22, 33-36. This vague specter of possible abuse, 

however, is a plainly insufficient basis for foreclosing in all circumstances 

the Secretary's ability to cite past violations under section 104(d). More 

relevant is how the Secretary actually proceeds in non-theoretical enforcement 

situations. 

In the case before us, the Secretary conducted an inspection in response 

to a miners' representative's report of a violation. The violation occurred 

on a Thursday, the request for an inspection was made on a Friday, the Secretary's inspection took place on the following Monday and Tuesday, and a 

section 104(a) citation was issued on Wednesday. The finding that the violation resulted from the operator's unwarrantable failure, resulting in the 

modification of the citation to a section 104(d)(l) citation, was made only 

19 days later. As of this date the operator was put on notice that it was 

subject to a section 104(d) probationary chain and that to avoid the issuance 

of withdrawal orders avoidance of further unwarrantable violations during the 

next 90 days was necessary. Thus, section 104(d) was invoked and implemented 

in a manner consistent with its intent. 

Based on these circumstances, and the record in this case, I perceive no 

basis for any conclusion that an injustice to the operator or a perversion of 

section 104(d)'s enforcement scheme has been caused by the Secretary's actions. 

Accordingly, I join the majority in reversing the judge's decision and 

remanding for further proceedings. Z.I 

~j~ James~Lastowka 

Commissioner 

51 I agree with the majority that further findings concerning whether the 

violation at issue resulted from the operator's unwarrantable failure are 

necessary, Although the judge indicated that he desired to avoid just such 

a remand in the event he was reversed on the controlling question of law 

(8 FMSHRC at 73), the intended meaning of his findings as to the validity 

of the modification of the citation and whether the operator's conduct, in 

fact, was unwarrantable, is not totally clear. See 8 FMSHRC at 72-73. See 

also, Oral Arg. Tr. at 38-39. Clarification of these points through further 

findings is necessary. Regarding the procedural propriety of the modification 

of the citation, two points should be noted. First, an inspector's supervisor 

certainly has the power to review the inspector's enforcement actions and, 

based on that review, direct appropriate modifications of the inspector's 

action. Second, the record in this case contains evidence, not referenced by 

the judge, concerning the sub-district manager's consideration of the particular circumstances of the violation at issue influencing his direction that the 

citation be modified to include an unwarrantable failure finding. Tr. 350-368, 

376-77. 

1560 
Chairman Ford, dissenting: "!._/ 

The decision of Chief Administrative Law Judge Merlin, that the 

majority would reverse, holds that an MSIL~ inspector is not authorized 

to issue an unwarrantable failure citation or order of withdrawal for 

a pre-existing violation that no longer exists at the time of his on 

site inspection. According to the judge's reasoning, the sole post hoc 

sanction available to the inspector in such circumstances is a citation 

authorized under section 104(a) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801, 814(a). l/ All Commission judges who considered this issue prior to this appeal had agreed with Judge Merlin. 2/ 

On appeal, the Secretary and the United Mine Workers of America 

(UMWA) argue -- and the majority agrees -- that the scope of section 104(d), 

30 U.S.C. § 814(d), is so broad as to authorize unwarrantable failure sanctions (including mine closure orders) for violations that, while they may 

have existed in the past, no longer exist and therefore are not personally 

observed by the inspector. The section 104(d) sanctions imposed in such 

circumstances have no prophylactic purpose. Thus, the majority is constrained to justify the imposition of section 104(d) for a past completed 

violation because of its "deterrent effect" (Majority Slip Opinion at p. 7). 

That expansive view conflicts with the plain meaning of the 1977 Act, the 

intentions of its authors, and its underlying policies. Accordingly, I 

must respectfully but vigorously dissent. 

*/ This opinion constitutes my general position on the applicability 

of unwarrantable failure sanctions to past completed violations not 

observed by MSHA inspectors. My legal conclusions herein therefore 

apply to three related cases also decided today: Greenwich Collieries, 

Docket Nos. PENN 86-33 and PENN 85-188-R et al., 9 FMSHRC (Sept. 30 

1987); White County Coal Corp., Docket Nos. LAKE 86-58-R and LAKE 86-59-R, 

9 FMSHRC (Sept. 30, 1987); and Emerald Mines, Docket No. PENN 85-298-R, 

9 FMSHRC (Sept. 30, 1987). 

l/ For purposes of this opinion, sanctions based on unwarrantable failure 

allegations will be referred to as section 104(d) citations and orders while 

sanctions not alleging unwarrantable failure will be referred to as section 

104(a) citations. I agree with my colleagues 1 view that despite the Secretary's theoretical arguments on this issue, such a distinction serves to 

clarify the discussion. 

2/ Greenwich Collieries, 8 FMSHRC 1105 (1986)(ALJ Haurer); White County 

Coal Corp., 8 FMSHRC 921 (1986)(ALJ Melick); Emerald Hines Corp., 8 FMSHRC 

324 (1986)(ALJ Melick); Southwestern Portland Cement Co., 7 FMSHRC 2283 

(ALJ Morris); Emery Mining Corp., 7 FMSHRC 1908 (l985)(ALJ Lasher); and 

Westmoreland Coal Corp., (WEVA 82-340-R et al.)(May 4, 1983)(ALJ Steffey). 

As the majority notes, one judge has recently reached a contrary result. 

Florence Mining, 9 FMSHRC 1180 (1987)(ALJ Fauver). The Secretary correctly 

indicates that this is a matter of first impression for the Commission. 

Secretary 1 s brief at p. 9. The Secretary cites only Rushton Mining Co., 

6 IBMA 329 (1976) both as precedent under the 1969 Coal Mine Health and 

Safety Act, 30 U.S.C. 801 et seq. (1970) and as an indication of traditional post hoc enforcementpolicy under section 104(d). Secretary's 

brief at pp. 14-15. Rushton, however, is clearly distinguishable from 

these cases on appeal insofar as it involved a violation that continued 

up to the time the inspector observed it. 6 IBMA 334-336. 

1561 
The category of past completed violations that the majority would 

subject to section l04(d) sanctions presumably includes a violation 

that may have occurred weeks or months before an inspector is made 

aware of it, let alone conducted his after the fact investigation as 

to whether and under what circumstances it may have existed. Additionally, the violation may no longer exist for any number of reasons: the 

area where it occcurred may long since have been abandoned; intervening 

incidents or conditions may have corrected or obliterated it; or a conscientious operator may have taken steps unilaterally to abate it. Under 

any of these scenarios, no unwarrantable, significant and substantial 

violation exists that poses an ongoing hazard to miners or that demonstrates continuing operator indifference to miner health and safety. 

As will be demonstrated below, post hoc imposition of section 104(d) 

sanctions in such circumstances"""WaS simply not contemplated by Congress. 

I. The Plain Meaning of Section 104 

A. Present vs. Past Conditions 

As stated in Higgins v. Marshall, one "must look first to the language 

of the I~tineJ Act itself and give [its] words ..• their ordinary meaning." 

584 F.2d 1035, 1037 (D.C. Cir. 1978), cert denied 441 U.S. 931 (1979). 

A parsing of the text of section 104(d) reveals the conscious intent 

of Congress to distinguish between citations based on present conditions 

and those based on past conditions that are no longer extant when the 

inspector is physically present in the mine. This legislative purpose 

is directly reflected by the use of the present tense throughout section 

104(d). '}_/ 

Since the grammatical context of section 104(d) is the present tense, 

it follows that its enforcement sanctions are directed toward extant 

violations, The statutory language itself does not encompass the expansion of the section 104(d) sanction to include violations that no longer 

exist (or that have been abated) and, therefore, do not reflect current 

operator indifference to mine safety or a continuing risk to miners. !!_/ 

3/ Under section 104(d)(l) a citation can only be issued where "the 

conditions created by such violation do not cause [not "did not" cause] 

imminent danger 11 ; where "such violation is [not "was"] of such a nature 

as could [not "could have"] significantlyand substantially contribute 

[not "contributed"] to the cause and effect of a ,,, hazard"; and only 

"if [the inspector] finds such violation to be caused [not "to have been 

caused] by an unwarrantable failure of such operator to comply [not "to 

have complied11 ], Similarly, a section l04(d)(l) withdrawal order can 

only be issued if the Secretary "finds another violation ..• to be also 

caused [not "was caused"] by an unwarrantable failure." [Emphasis added]. 

4/ Contrary to the argument of the majority the phrase "has been a 

~iolation" in section 104(d) does not lead to a contrary conclusion. 

"Has been" is the present perfect tense of "to be" denoting an action 

begun in the past and continuing into the present. Thus, "has been" is 

the necessary predicate establishing that a violation has to have occurred 

and then continued up to the point where an inspector can "find" it and 

impose appropriate sanctions. 

1562 
Textual analysis is buttressed by legislative history that ties section 

104(d) sanctions to extant violations. Section 104(d) was adopted virtually 

without change in the 1977 Act from section 104(c) of the 1969 Coal Mine 

Health and Safety Act. 80 U.S.C. § 801, 814(c)(l970). 'l_/ Therefore, what 

Congress said in 1969 about the timeliness of unwarrantable failure citations 

and orders is dispositive of the issue under the 1977 Amendments. 

The 1969 House Report described the unwarrantable failure enforcement 

sanction as applicable when an inspector finds that a mandatory health or 

safety standard "is being violated." 6/ The Senate's unwarrantable 

failure sanction was likewise applicable where the inspector "finds [that 

a standard] is being violated." 7/ The Conference Report restated the 

Senate characterization: "if an inspection of a coal mine shows that a 

mandatory [standard] is being violated." 8/ Thus, when the 1969 Act 

passed Congress, the legislators agreed that unwarrantable failure 

sanctions applied to existing violations, that is, practices or conditions that continue to violate mandatory health and safety standards 

up to the time the inspector witnesses them. 

As noted above, the 95th Congress re-enacted the existing language 

of the 1969 Act (section 104(c)) as section 104(d) of the 1977 Act. In 

so doing Congress found the language to be "effective and viable" in its 

existing form. 9/ Lastly, the Senate Labor Committee clearly spoke to the 

timeliness factor for unwarrantable failure closure orders by relating them 

to failure to abate orders authorized under section 104(b) of the 1977 Act: 

Like the failure to abate closure order ... the 

unwarranted (sic) failure order recognizes that 

the law should not tolerate miners continuing to 

work in the face of hazards .... 10/ 

The legislative history thus explains and justifies the adoption 

of the present tense in the statutory language of section 104(d): 

Congress deliberately restricted unwarrantable failure sanctions to 

extant conditions or practices discovered by the inspector because they 

5/ Sen. Rep. No, 95-461, 95th Cong., 1st Sess. 48,(1977). Reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 

2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977 at 1326, (Leg, Hist., 1977 Act), 

!:._/ Legislative History of the Federal Coal Mine Health and Safety Act of 

1969, 94th Cong, lst Sess, (Comm, Print 1975) (Leg. Hist., 1969 Act) at 

p-:-1061. 

7/ Id, at 872-73. 

8/ Id. at 1511-1512, 

9/ Leg, Hist., 1977 Act, 620. 

10/ Leg. Hist., 1977 Act, 619. 

1563 
have been allowed to continue through operator indifference, willful 

intent or a serious lack of reasonable care. Review Commission decisions 

addressing the proper definition of "unwarrantable failure" are entirely 

consistent with this Congressional view. Westmoreland Coal Co., 7 FMSHRC 

1338 (1985); United States Steel Corp., 6 FMSHRC 1423 (1984). "[AJn 

unwarrantable failure to comply may be proved by a showing that the 

violative condition or practice was not corrected or remedied, prior 

to issuance of a citation or order, because of indifference, willful 

intent, or aserious lack reasonable care. II 6 FMSHRC 1437. [Emphasis 

added]. 

B. Investigation vs. Inspection 

A principal basis upon which the judges' decisions below have rested 

is the distinction between "investigation" and "inspection" as those 

tenns are used in the 1977 Act. Section 104(a) citations can be 

issued on the basis of an inspection or investigation while section 

104(d) sanctions are limited to violations cited in the course of an 

inspection only. 

The words "inspection" and "investigation" are not separately defined 

in the Act. Therefore, these words must be interpreted and understood as 

having their contemporary, ordinary meanings. Furthermore, it is a commonly 

accepted generalization that when people say one thing they do not mean 

something else. Thus, when Congress said "inspection", it did not mean 11 investigation" and vice versa. In this regard and contrary to the UMWA's 

contention (UMWA brief at p. 10), the legislative history of the 1977 Act 

clearly demonstrates that Congress made "fine distinctions" between 

"inspection" and "investigation" for purposes of the Act. 

Senate Report No. 95-181 discusses the Secretary's subpoena powers 

under what ultimately became section 103(b), 30 U.S.C. § 813(b), and states, 

"This authority is limited to investigations and not inspections." 11/ 

Later, in the Senate floor debates Sen. McClure sought to amend section 

l03(b) so that it would more clearly apply to investigations only, and not 

ions. The ensuing colloquy between Sen. McClure and the principal 

authors of S. 717, Sens. Williams and Javitz, clearly indicates that by 

adopting the McClure amendment, all three obviously distinguished between 

"inspections" and "investigations" within the context of the 1977 Act, 12 

The foregoing legislative history is fully explained by the ordinary 

meanings of the two terms. Against the background of federal oversight 

and regulation of mine safety and health, "inspection" is defined as 11 strict or close examination or survey to determine compliance," while 

"investigation" is defined as a "searching inquiry as to causes." 13/ 

Ordinarily, the use of different terms, as here, creates an inference 

that Congress intended a difference in meaning. This inference is 

11/ Le. Hist., 1977 Act, 615. 

12/ ~· at p. 1091-92. 

13/ Webster's Third New International Dictionary (G&C Merriam Co., 1971). 

1564 
confirmed by the statutory language itself. Thus, when Congress used 

the words together in sections 103(a), 104(a), (b), and (g)(l), lOS(a), 

and 107(a), 30 U.S.C. §§ 813(a), 814(a), (b) and (g)(l), 815(a) and 

817(a), it separated them with the disjunctive "or" rather than the 

conjuntive "and". The use of "or" clearly indicates that Congress 

did not intend these words to be considered interchangeable. Likewise, 

when Congress limited the prohibition against advance notice to 

"inspections" in section 103(a), it did so in recognition of the 

different meaning of "inspections" and "investigations". 14/ Since an 

investigation, as defined, is an inquiry into causes, it fOllows upon 

an antecedent event which is known before the "investigation" can begin. 

Therefore, it would be futile to bar advance notice of the Congressionally 

mandated follow-up to a mine accident. An "inspection", in contrast, is 

the beginning of enforcement to determine if violati<.1 e mine conditions exist, 

and Congress wanted to bar advance notice to avoid operator efforts to 

disguise safety hazards. 

Section 104(a) and (b) broadly confer citation and withdrawal 

order authority for violations believed to have been committed upon 

"investigation" or "inspection". The withdrawal sanction is limited to 

the operator's failure to abate after having been cited. Section 

104(d)(l), however, is confined to violations found nupon any inspection". 

This provision read together with section 104(d) (2) provides for immediate withdrawal authority without regard to abatement efforts for violations deemed to result from the operator's unwarrantable failure to comply. 

This is a significant extension of regulatory authority and by using the 

term 11 inspection" alone, Congress reserved and confined this authority 

to current existing violations which, because of their gravity or the 

operator's underlying failure to correct them require prophylactic mine 

closure. Congress did not intend this authority to be used as a post 

hoc sanction for violations no longer extant or previously abated but 

later "found" during after-the-fact "investigations" as to their causes. 15/ 

Moreover, Congress used the terms together six times in the Act. 30 U.S.C::-

§§ 813(a), 814(a), (b) and (g)(l), 815(a) and 817(a). Congress' failure 

to do so in section 104(d) (1), therefore must be attributed to conscious 

14/ See also section llO(e) 30 U.S.C. § 820(e), authorizing criminal 

penalties for advance notice of "inspections" only. 

1 The majority attaches some significance to the fact that Congress 

dropped a House-proposed definition of "inspection" from the 1969 Actg 

and then goes on to assume that the deletion somehow authorizes the 

issuance of unwarrantable failure sanctions at any time for past 

violations. (Majority slip opinion at pp. 8-9), I believe the reason 

for the deletion is much simpler than that. The definition was 

irrational, As judge Steffey wryly observed, the definition, if read 

literally, would have required an inspector to set up an underground 

larder to sustain him until his quarterly inspection of the entire 

mine was completed. Hestrnoreland Coal Co., Docket Nos. WEVA 82-304-R 

(May 4, 1983), quoted below at 8 FMSHRC 63. 

1565 
choice rather L1an inadvertance. 16/ The Act, its legislative history, 

and an inquiry into the plain meaning of the terms at issue indicate 

clear Congressional intent that investigations and inspections were to 

be considered as distinctly different enforcement activities with 

equally distinct consequences. 

Finally, the majority emphasizes that section 103(g) grants a complaining miner the right to an "inspection" and that the enforcement 

actions here were taken as a consequence of a section 103(g) complaint. 

While that is true as far as it goes, the activities engaged in by 

MSHA were investigative rather than inspectorial in nature. Furthermore, 

the specific enforcement action complained of -- citing the operator 

under section 104(d) -- was undertaken by the sub-district manager when 

he modified the initial citation 19 days after it was issued by the 

inspectors who responded to the miner's complaint. 

One is left to conclude, therefore, that "inspection" now encompasses 

all enforcement activity the Secretary chooses to engage in: an inquiry 

into past events, an examination of existing conditions, and all subsequent 

internal review conducted by MSHA once the inspector leaves the mine 

premises. 17/ Under that rubric, I disagree with my colleagues that they 

are "not required ••• to decide the meaning of inspection for all 

purposes under the Mine Act" (Majority Slip Opinion at P. 7). They have. 

16/ The Court of Appeals for the District of Columbia recently applied 

this principle of statutory construction in another case involving the 

Mine Act. Citing Rusello v. United States, 464 U.S. 16, (1983) the D.C. 

Circuit endorsed the proposition that where Congress includes language 

in one section of a statute but omits it in another section of the same 

Act it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. United Mine Workers of 

America v. Mine Safety and Health Administration, Docket Nos. 86-1239 and 

86-1327 (D,C, Cir, July 10, 1987)(slip opinion at p. 19). 

17/ The 19-day hiatus between the initial issuance of the section 104(a) 

citation and its ultimate modification to a 104(d) citation would appear 

to confound the Secretary's own review procedures in 30 C.F.R. Part 100. 

Section 100.6 provides for pre-Commission review of citations and orders 

"issued during an inspection" and requires all parties desiring a safety 

and health conference to request one within 10 days after receipt of the 

citation or order, The regulations are silent with respect to modifications to citations and orders. It is therefore conceivable that an 

operator could waive his right to a conference on a 104(a) citation only 

to be notified after the 10-day period has elapsed that the citation has 

been modified to a section 104(d) citation or order. In such a circumstance the operator is lulled into forfeiting the opportunity to 

present exculpatory evidence that might militate against the modification 

of a section 104(a) citation to a section 104(d) citation or order. 

The inevitable result of today's decision will be that operators may 

defensively request conferences on all citations so as to avoid the 

unforseeable consequences of extended "inspections" by the Secretary. 

1566 
C. Believes vs. Finds 

Intertwined with the distinction between investigations and inspections under the Act is that between "believes" and "finds" within the 

constituent elements of section 104. Section 104(a) allows for the 

issuance of a citation whenever an inspector "believes" an operator has 

violated the Act or mandatory standards, whereas section 104(d) requires 

that the inspector "find" a violation. 

Both the Secretary and the UMWA argue that "finds" as used in section 

104(d) carries an adjudicative sense 18/ while NACCO argues that the term 

requires that the inspector "discover11the violation first-hand before a 

section l04(d) citation or order may be issued. ];1_/ 

A search of the language and purpose of the Act, as well as the 

legislative history however, does indicate explicit intent on the part of 

Congress to limit the application of section 104(d) to instances where the 

violation in question is actually observed by the inspector. Indeed, contrary to the Secretary's and the UMWA's arguments, the legislative history 

of the 1977 Act specifically equates "finds" with "observes" or "discovers" 

for purposes of section 104(d). 

Senate Report No. 95-181 addresses the rationale for injunctions under 

section 108 of the 1977 Act, 30 U.S.C. § 818. The remedial injunction was 

a new enforcement tool granted the Secretary by Congress in the 1977 Act to 

be used against "habitual or chronic" violators that don't respond to the 

citation, mandatory abatement and withdrawal order sanctions of section 

104. 20/ The Senate Report is quoted at length because it has direct and 

dispositive bearing on the issues in this case: 

18/ "It is patently clear from the language of section 104(d) itself 

that the word finds is used in that section in the adjudicative sense, 

meaning that the inspector must conclude that an unwarrantable violation 

has occurred, not that he must literally discover an active, in-progress 

violation. 11 Secretary's brief at p. 20 (emphasis added). 

nFurthermore, under Judge Merlin's analysis, use of the word finds 

can only mean that an inspector must discover or ncome upon" a violation •••• 

Only by interpreting find to mean conclude or determine can the provision 

of l04(d) make any sense, as an effective enforcement tool." UMWA 1 s brief 

at pp. 4-5 (emphasis added). 

19/ Brief of NACCO at p. 16. The majority endorses the position of the 

Secretary and the UMWA on this issue. (Majority slip opinion at p. 9). 

The "finding 11 of unwarrantable failure was made three weeks after the 

issuance of the original l04(a) citation by a sub-district manager who 

did not visit the mine, interview witnesses, examine the operator's 

records or consult with the issuing inspector. 8 FMSHRC 72. The two 

inspectors who did perform those activities, however, declined to "find" 

unwarrantability even in the sense that that term is propounded by the 

majority. 

20/ Leg. Hist., 1977 Act, 1334. 

1567 
The current scheme for enforcing the mine safety laws 

enables MESA to eliminate the dangerous conditions which 

are observed in the course of inspections either by 

requiring the abatement of the violation or, where 

warranted, by withdrawing miners from the dangerous 

situations. Having taken these steps, however, there 

are no current enforcement sanctions to insure continued compliance with the Act's requirements by the 

operator after abatement of the actual violations 

observed •••• The new provision of section 109 of 

the bill is designed to deal with that gap in 

enforcement. 

It is in essence, a means by which the Secretary 

con (sic) obtain the correction of violations 

which habitually occur when the inspector is 

not present in the mine. The provision enables 

the court to infer from the repeated discovery 

of violations at a mine that the operator probably regularly permits such violations to occur 

at times when the inspector is not present at 

the mine • .lJ:.../ [Emphasis added.] 

It should be noted that the "current scheme" and 11 current enforcement 

sanctions" of the 1969 Act to which the Senate Report refers are identical 

to the current scheme and sanctions of the 1977 Act insofar as section 

104(d) is concerned. As noted above, section 104(d) was drawn almost 

verbatim from section 104(c) of the 1969 Act. (As will he discussed 

below, the same holds generally true for section 103(g), 30 U.S.C. 

813(g), (miners' complaints) and its predecessor in the 1969 Act). 

Had Congress sought to grant the Secretary the authority to impose 

104(d) sanctions for violations that no longer exist when the inspector 

is present to observe them, it would have amended section 104(d) for 

that purpose. Instead, Congress devised injunctive relief to fill an 

acknowledged "gap in enforcement" with respect to violations not actually 

observed by the inspector because he is not prese~t at the mine. Section 

108 constitutes extraordinary relief that is to be invoked only when other 

statutory measures have failed. Nevertheless, its genesis, quoted above, 

was the recognition by Congress that section 104(d) had limited application 

to violations still in progress during the Secretary's physical inspection 

of the mine. 

A conscious decision on the part of Congress to withhold the Secretary's authority to invoke section 104(d) sanctions for violations not 

observed by his inspectors is binding on this Commission as well. 

Furthermore, the legislative history for section 104(e), 30 U.S.C. 

§ 814(e), indicates clearly thC!t Congress intended "finds" to mean 

:!:J:../ Leg. Hist., 1977 Act, 627. 

1568 
"discover". !J:./ Sen. Schweiker authored what is now section 104(e). In 

a Senate floor colloquy with Sen. McClure, Sen. Schweiker explained what 

"finds" means in terms of section 104(e): 

Tile way the amendment works is if a pattern of 

substantial violations is found the mine is put 

on notice .••. Tilen after the next violation 

occurs they are shut down •.•• He [the operator) 

can clean the slate up in 90 days by good behavior, 

or he can clean it up on the next inspection and 

show that there are no violations that exist. 23/ 

[Emphasis added]. 

Sen. Schweiker's explanation is even more clearly stated later in the 

Senate Record: 

••. Once a withdrawal order has been issued ••• and 

a subsequent inspection of the mine discloses 

another violation ..• a withdrawal order will be 

issued until the violation has been abated •... 

Subsequent to this, the operator is subject to 

further withdrawal orders ••• each time a violation of a substantial and significant nature is 

discovered, until an inspection of the mine in 

its entirety discloses no violations ..• which 

could significantly and substantially," etc. 24/ 

[Emphasis added] • 

The legislative history fully supports Judge Merlin's view that the 

inspector's first-hand observation of violations is a prerequisite to the 

imposition of section 104(d) sanctions. In short, an inspector cannot cite 

under section 104(d) what he cannot "find", that is, observe or discover in 

the course of his inspection. 2 Clear judicial support for equating 

22/ While section 104(e) is not before this Commission, our ultimate 

decision will carry implications for future "pattern of violations" 

enforcement. Sections 104(d) and (e) are completely analogous insofar 

as the inspection/investigation and believes/finds dichotomies are 

concerned, The majority's determination that section 104(d) sanctions 

can be imposed post hoc for violations no longer extant clearly implies 

that section 104(e) sanctions can be similarly imposed, 

23 . History, 1977 Act at p, 1077. 

Id. at p. 1105, 

25/ The majority cites two violations that might escape section 104(d) 

sanctions -- failure to perform pre-shift examinations (30 C.F.R. 75.303) 

and health violations, such as excursions above the respirable coal dust 

standard, that are determined by after the fact analysis of samples. 

(Footnote continued) 

1569 
"find" with "observe" is also found in Holland v. U.S., 464 F.Supp 117, 

123 (W .D. Ky. 1978). Thus, the inspector is limited to the 104(a) 

sanctions with respect to past violations no longer extant at the 

time of his inspection and observation of current conditions. 

II. The Interaction Between Section 104(d) Sanctions and Miners' 

Complaints 

Concerns have been raised in this case that if inspectors cannot 

impose section 104(d) sanctions for past, but unobserved violations, the 

rights of miners under section 103(g) will be "emasculated". Oral argument at p. 57. Indeed, as the majority notes, this case arose from a 

citation issued in response to a section 103(g) complaint. The Conference 

Report on the 1977 Act, however, could not be more clear as to the interaction between section 103(g) and the ensuing sanctions allowed under the 

Act: 

Fn. 25/ continued 

Regarding the first example, section 75.303 requires not only that 

a pre-shift inspection be conducted but also that it be recorded in an 

examination book "open for inspection by interested persons." Failure 

to examine and then record would therefore be a violation continuing to 

the time the inspector arrives at the mine to inspect the books. He 

would be observing the continuing violation and would have available to 

him the unwarrantable failure sanction. Of course, failure to preshift 

but nevertheless misrepresenting that failure by "recording" it is an 

offense subject to the criminal sanctions of Section llO(f), 30 U.S.C. 

820(f). 

As for the second example, except for respirable coal dust 

sampling, the vast majority of sampling conducted for the purpose of 

determining compliance with health standards is conducted by MSHA 

:Lnspectors themselves, See generally, Mine Inspection and Investigac.ion Manual U.So Department of Labor, Chapters III and IV (1978). 

, when an inspector conducts the sampling to determine compliance with various health standards and then analyzes those samples 

or forwards them for laboratory analysis, he is at all times engaged 

in the "discovery" of a potential violation and, if the ultimate analysis 

proves noncompliance, he is authorized to cite under section 104(d) 

if the other elements of that section are met. It should also be noted 

that technology increasingly provides instrumentation for 

instantaneous analysis and quantification of workplace toxics just as 

sound level meters provide instant quantification of workplace noise. 

Furthermore, with respect to the health standard specifically raised 

by the majority, the respirable coal dust standard, Congress has 

specifically fashioned a sanction for continuing noncompliance with 

the standard that verges on an unwarrantable failure to comply. Section 

104(f) provides withdrawal order authority when an inspector finds that 

an operator has failed to reduce dust levels below the standard as 

evidenced by sample results, and when he further determines that 

additional time for abatement is not warranted. 30 U.S.C. 814(f). 
The conference substitute contains a further amendment requiring the Secretary to notify the operator 

••. forthwith if the (103(g)] complaint indicates 

that an imminent danger exists. Otherwise, miners 

might continue to work in an imminently dangerous 

situation until the Secretary is able to inspect 

•••• Accordingly, an operator who receives such a 

notice would do what is necessary to evaluate the 

situation and protect the miners who may be exposed 

from the dangerous situations. While this provision, 

in fact, gives the operators the opportunity to abate 

such dangerous conditions-its sole purpose [is?] to 

protect the health and safety of miners. l:!!_/ 

The clear implication of the underlined sentence is that operators 

in such circumstances may "get away with" abating violations without being 

cited when the inspector arrives but that the substance of protecting miners 

takes precedence over the form of enforcement. In fact, what does the above 

passage mean other than that the Secretary is precluded from citing past, 

abated violations that give rise to section 103(g) complaints? Such a 

reading also reinforces the proposition that Congress intended "finds" 

to mean "observes in the course of inspection" since section 107, 30 U.S.C. 

817, requires the inspector to "find" imminent danger just as he is required 

to "find" a violation under section 104(d). 

Furthermore, the Conference Report goes on to state: 

The failure of the Secretary to notify the 

operator ..• under this provision will not 

nullify any citation or order which may be 

issued as a result of the inspection in 

response to the [miner's] request ••• even 

if such inspection discloses the existence 

of an imminent danger situation in the mine, 27/ 

The only logical explanation for this "hold harmless" language is 

that if the operator has been notified and he abates prior to inspection 

he cannot be cited; whereas if he is not notified and therefore does not 

abate prior to inspection, he can be cited and cannot affirmatively 

defend against the citation or order by arguing that the Secretary 

failed to notify him of the violation. 

Moreover, section 103(g) had an analogous antecedent in the 1969 Act, 

30 U.S,C. § 813(g)(l970). That inspection in response to a miner's complaint was also part of the "current scheme" referred to in the Senate 

Report quoted above, As such, section 104(d) sanctions were limited 

under the 1969 Act to violations 11 observed in the course of [section 

103(g)] inspections." Leg. Hist., 1977 Act, 627. Congress did not 

26/ Leg. Hist., 1977 Act, 1324 [emphasis added]. 

27/ Id. at 1324 [emphasis added]. 

1571 
amend section 103(g) to authorize section 104(d) sanctions for past 

completed violations not observed by the inspector upon his arrival at 

the mine in response to a miner's complaint. Therefore, the "current 

scheme" of the 1977 Act must operate under the same restrictions as 

Congress ascribed to the "scheme" of the 1969 Act. 

The appropriate interrelation between sections 103(g) and 104(d) 

can also be established by reference to section 2 of the Act which sets 

forth its Congressionally determined purposes. In section 2(e) Congress 

declares that mine operators "with the assistance of miners have the 

primary responsibility to prevent the existence of [unsafe and 

unhealthful] conditions and practices in .•. mines." Section 2(g) goes 

on to state that the purpose of the Act is "to require that each operator 

of a coal or other mine and every miner in such mine comply with 

(mandatory safety and health] standards." 30 U.S.C. §§ 802(e) and (g). 

Thus, the operators' and the miners' responsibilities to prevent 

the continued existence of unsafe and unhealthful conditions and practices derive directly from section 2 of the Act itself - not because of, 

and perhaps in spite of, the Secretary's various enforcement incentives 

and disincentivites used to encourage compliance. Given the Secretary's 

finite enforcement resources, section 2 explicitly acknowledges that the 

correction of hazardous conditions and practices will for the largest 

part depend upon the vigilant self-policing of mine safety and health 

by operators and miners. As the UMWA states convincingly in its brief: 

The likely interaction of all parties involved in 

carrying out the enforcement of mine safety and 

health laws should be the highest priority of the 

Commission in fashioning its interpretation of 

section 104(d) in this case. Only by construing 

the statute with an eye toward that priority, will 

the proper determination be made. UMWA brief at 

p Q 12, 

The "likely interactionH of all parties is obviously aimed at the 

prevention of hazards to miners and the prompt abatement of violations 

once they arise irrespective of the threat of sanctions. When two of 

the parties, the operator and the miner, for whatever reason cannot or 

will not "interact" to carry out their responsibilities under section 2(g), 

Congress has provided for Secretarial intervention under section 103(g). 

However, given the Conference Committee's view, above, as to how this 

level of interaction is to be circumscribed, 104(d) sanctions are impermissible responses to 103(g) complaints aimed at past completed violations, 

Under the principles enunciated in section 2 of the Act, such a 

limitation on the Secretary's enforcement powers is appropriate, There 

is no incentive for fostering the "interaction of all parties involved" 

when one of the parties, the Secretary, is motivated more by retribution 

than by the protection of miners when he issues a section 104(d) citation or withdrawal order for a hazard that no longer exists. Section 2 

is even more severely compromised when the operator's unilateral action 

to abate violations prior to the inspector's arrival is "rewarded" by 

imposition of the more severe enforcement sanctions of section 104(d). 

1572 
Yet, the majority would extend the Secretary's authority to issue 104(d) 

sanctions to violations "corrected" before the inspector's arrival. 

(Majority slip opinion at p. 13.) 

In short, the majority's decision will encourage its own "cat and 

mouse game" 28/ with respect to violations that no longer pose any colorable threat to miner health and safety. 

III; Practical Enforcement Problems Arising from Post Hoc Section 104(d) 

Sanctions 

By reversing Judge Merlin and allowing the Secretary to issue retroactively the enforcement sanctions of section 104(d), the majority raises 

a number of enforcement policy issues. Practical issues include the 

potential for constant recomputation of the 90 day probationary period 

built into section 104(d). The majority dismisses this "time sequence" 

problem by arguing that it doesn't arise on review and thus need not be 

considered here. (Majority Slip Opinion at p. 7, fn. 6.) They err on 

two counts. 

First, the "time sequence" issue raised by NACCO is not mere calendar 

speculation; it is a substantive argument in favor of limiting section 

104(d) citations and orders to existing violations actually observed by 

an inspector in the course of his inspection. NACCO correctly argues that 

by applying section 104(d) to past, completed violations the 90 day probationary period is "written out of the Act." NACCO brief at p. 22. 

This is because the majority's opinion allows the Secretary, through the 

post hoc imposition of section 104(d) sanctions, to reach back continuously 

into expired 90 day "cleann probationary periods previously considered to 

be unwarrantable failure free. This argument is inextricably linked to the 

"present tense", "finds" vs "believes", and "inspection" vs "investigation" 

arguments, discussed above. They all center on the proposition that the 

section 104(d) chain is a prospective sanction that starts with a presently 

observed unwarrantable failure violation and becomes progressively more 

severe as subsequent unwarrantable failure violations are observed during 

the ensuing 90 day period. 

Second, the "time sequence" issue is before the Commission on the 

basis of the facts of this case, The violation was alleged to have 

occurred on May 30, 1985, It was cited by the inspectors under section 

104(a) on June 5, 1985. The section 104(a) citation was modified to a 

section 104(d)(l) citation by the subdistrict manager on June 24, 1985. 

From which of the three dates does the 90 day probationary period run? 

If the Secretary can retroactively ufind" an unwarrantable failure 

violation 25 days into the past, doesn't it follow that the operator 

should be credited with those same 25 days toward the 90 day probationary 

period? If not, doesn't the majority's decision actually establish 

a 115 day probationary period under section 104(d)? These are legitimate 

questions that can not be deferred to another day since NACCO has explicitly 

raised them in this appeal. Furthermore, as the majority is obviously 

breaking new ground with this decision, clear guidelines as to future 

enforcement procedures must be articulated in this case. Obviously, if 

28/ UMWA brief at p. 12. 

1573 
as argued in this dissent, the Secretary has no authority to issue a 

section 104(d) citation in the first place, the "time sequence" issue 

is moot, 29/ 

Although an unwarrantable failure closure order is not at issue here, 

the majority's decision authorizes the issuance of such orders for nonextant violations alleged by the Secretary to have occurred some time 

before the arrival of an inspector. Indeed, the majority's decisions today 

in White County Coal Corp., Docket Nos. LAKE 86-58-R and LAKE 86-59-R, 

9 FMSHRC (Sept. 30, 1987) and Greenwich Collieries, Docket Nos. 

PENN 86-33 and PENN 85-188 et al., 9 FMSHRC (Sept. 30, 1987), allow 

just such enforcement actions.~As argued above, since the violation no 

longer exists, the withdrawal order is not issued for the purpose of protecting miners; no hazard is present at the time of issuance. This, despite 

Congressional statements to the effect that such orders are necessary so 

as to prevent "miners continuing to work in the face of hazards." 30/ 

If, as the Secretary suggests, the withdrawal order is issued "to send 

a message" 31/ or, in the terminology of the majority, for its "deterrent 

effect", then section 104(d) curiously takes on the trappings of a civil 

penalty closure order. 

Both the Senate and House bills that gave rise to the 1977 Act included 

such an order. Leg. History, 1977 Act at pp. 159 and 237. Its purpose was 

not the protectionof miners but was purely punitive. The order, however, 

could only be imposed by the Commission after a full hearing. After due 

deliberation, Congress rejected the civil penalty closure order. What 

Congress was unwilling to delegate legislatively to the Secretary cannot 

be delegated judicially by this Commission. 

If as the UMWA argues 32/, the withdrawal order can be terminated 

simultaneously with its issuance, the enforcement mechanism of section 

104(d) becomes a dead letter, a "nonclosure" closure order. No one is 

29/ Aside from the uncertainty now introduced into the computation of the 

90 day probationary period, there is now also a general lack of temporal 

restraint on the Secretary in applying section 104(d) sanctions, particularly 

section 104(d) orders. In two cases decided today, the violations are 

alleged to have occurred as short as one hour (White County Coal Corp., 

infra) and as long as 13 months (Greenwich Collieries, infra) before 

issuance of the orders. 

30/ • Hist., 1977 Act, 619, 

l.!_/ "We close that section of the mine; we cut off production, send a 

message to everyone involved - from the miners to the operators - that 

we are not going to tolerate this kind of activity •.•• I would probably 

close it until the next clean inspection, yes ••. The Commision has often 

paid due deference to the Secretary's interpretation of his enforcement 

mandates." Statement of Solicitor of Labor Salem, oral argument, 

December 16, 1986 at pp. 18-20. 

32/ Statement of Mr. Meyers for UMWA, oral argument, December 16, 1986 

at pp. 31-32. 

1574 
actually withdrawn, although the statute requires that they be withdrawn, 

and the credibility of the entire enforcement mechanism becomes subservient 

to an obviously formalistic exercise. 

Finally, if as the Secretary alternatively suggests, 33/ the withdrawal order is issued for the purpose of training miners in such areas 

as roof control and ventilation as a means of abatement, two problems 

arise. First, the Secretary did not allege a violation of the training 

regulations that would warrant such a means of abatement. Second, the 

miners that are withdrawn as a result of the order may not be the miners 

that were present in the area when the violation is alleged to have 

occurred. In either event the remedial basis for the order is inapposite 

with respect to the violation charged. 1!!_/ 

IV. The Underlying Policy of Section 104(d). 

What is most disconcerting about the enforcement policy now blessed 

by the majority is its adverse effect on the Act's fundamental philosophy 

of voluntary compliance. What compliance incentives exist when a mine 

operator and his workforce who currently maintain a commendable safety 

performance can be brought under the heavy hand of section 104(d) enforcement for errors alleged to have been committed weeks or months in the 

past? 35/ Indeed, given the unlimited retroactivity inherent in the 

majority's holding, section 104(d) sanctions are now authorized against 

a current management and workforce that may not even have been involved 

in the past completed violation. Particularly galling will be the retroactive issuance of withdrawal orders for violations that posed no conceivable threat to miner health and safety even when they first occurred 

(e.g., recordkeeping violations). Only the first violation in a section 

104(d) chain need be both significant and substantial and caused by unwarrantable failure to comply; subsequent withdrawal orders in the chain 

need only allege unwarrantability. 

33/ Statement of Solicitor Salem, oral argument, December 16, 1986 at 

p-:- 21. 

34/ These arguments are particularly true with regard to the Majorityvs 

decision today in White County Coal Corp., supra, wherein the means of 

abatement was the retraining of miners as to the requirements of the 

operator's roof control plan. Indeed, if in this case and in White 

County Coal Corp., the Secretary had alleged inadequate training as the 

basis of the violations (as, apparently, it was) and had cited under 

section 104(a), the deterent effect of enforcement espoused by the 

majority would still have been achieved. Production would have been 

stopped for the period of time needed to abate the violation, i.e., 

until the miners in question had been reinstructed in the hazards of 

going under unsupported roof. In such a scenario the true purposes of 

the Act would have been served within the limitations placed on the 

Secretary by Congress with respect to past completed violations not 

observed by inspectors in the course of their inspections. 

35/ In a companion case decided today, Greenwich Collieries, supra, 

l04(d) orders were issued for violations alleged to have occurred as far 

back as 13 months. 

1575 
Furthermore, the carefully formulated enforcement scheme of section 

104(d) is seriously undermined by today's decision, for despite their 

protests to the contrary, the majority has effectively jettisoned the 

90 day probationary period central to the operation of section 104 of 

the Act. Logic dictates that the 90 day probationary period of section 

104(d) can only be imposed prospectively in response to an extant violation that poses a discrete hazard to miner health or safety and that 

evidences an operator's "continuing indifference, willful intent or 

serious lack of reasonable care." U.S. Steel, supra. In this enforcement regimen, both management and miners are unequivocally put on notice 

that any future violation, regardless of its seriousness, that results 

from an unwarrantable failure to comply will result in a summary withdrawal order. By law the triggering citation is posted for both managers 

and miners to see. The threat of a withdrawal order hangs like a Sword 

of Damocles over every shift and every section for the ensuing 90 days. 

Safety and health awareness is heightened as the attention of everyone 

is focused on avoiding the adverse economic and productivity consequences 

of unwarrantable failure violations. These practical yet motivational 

incentives cannot but have a salutary effect on maintaining a safer and 

more healthful workplace as the probationary period progresses. In sum, 

the prospectively applied probationary period has definition, limits, 

immediacy and practical consequences for those who must work under it 

and establish a habit of compliance. 

Though I hesitate to characterize the Mine Act's enforcement scheme 

in criminal law terms, the obvious and primary purpose of section 104(d) 

is rehabilitative. The majority's holding however would play hob with 

the rehabilitative function of the probationary period by allowing the 

Secretary to reach back continuously into the past to restart the 90 day 

clock. In such circumstances the Sword of Damocles may never be sheathed. 

Once that point is reached, the credibility of the enforcement program 

is severely compromised, the incentive to voluntary compliance is dulled, 

and bald harrassment becomes inevitable. 

In summary, I do not hold with the majorityvs view that the Secretary 

can impose section 104(d) sanctions for prior completed violations not 

observed by his inspectors, Congress explicitly declined to delegate 

such authority. Indeed, the legislative history on point clearly indicates 

that section 104(d) was reserved by Congress for violations observed by 

the inspector in the course of his inspection. 

The inspector may, nevertheless, cite the operator under section 

104(a) of the Act if upon "investigation" he "believes" a past violation, 

not witnessed by him, has occurred. There is more than sufficient 

"deterrent effect 11 in the civil penalty sanctions associated with section 

104(a) as witnessed by the $5000.00 civil penalty assessed by Judge 

Merlin in this case. Therefore, 

~ 

I would affirm his decision. 

Chairman 

1576 
Distribution 

Ann Rosenthal, Esq. 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Thomas W. Meyers, Esq. 

United Mine Workers of America 

56000 Dilles Bottom 

Shadyside, Ohio 43947 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Paul W. Reidl, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

58th Floor, 6700 Grant Street 

Pittsburgh, PA 15219 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W. 

Washington, D.C, 20006 

1577 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 30, 1987 

WHITE COUNTY COAL CORPORATION 

v. Docket Nos. LAKE 86-58-R 

LAKE 86-59-R 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY: Backley, Doyle and Nelson, Commissioners 

This proceeding arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seg. (1982), and presents us with an 

issue, similar to that decided by us this date in Nacco Mining Co., 

9 FMSHRC ~' Docket Nos. LAKE 85-87-R and 86-2 (September 30, 1987): 

May the Secretary of Labor, in the course of an inspection, issue orders 

pursuant to section 104(d) of the Mine Act, 30 U.S.C. § 814(d), based 

upon a violation that is detected after the violation has ceased to 

exist? l/ Commission Administrative Law Judge Gary Melick held that 

Section 104(d) statesg 

(1) If, upon any inspection of a coal or other 

mine, an authorized representative of the Secretary 

finds that there has been a violation of any mandatory health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation is of 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be. caused by an unwarrantable 

failure of such operator to comply with such mandatory health or safety standards, he shall include 

such finding in any citation given to the operator 

under this [Act]. If, during the same inspection or 

any subsequent inspection of such mine within 90 

days after the issuance of such citation, an autho1578 
such orders could not be issued. 8 FMSHRC 921 (June 1986)(ALJ). For 

the reasons set forth in Nacco, supra, we reverse and remand. 

The facts are not in dispute. On February 6, 1986, Inspector 

Wolfgang Kaak of the Department of Labor's Mine Safety and Health 

Administration ( 11MSHA11 ) was conducting a "spot" inspection, pursuant to 

section 103(i) of the Mine Act, 30 U.S.C. § 813(i), of the Pattiki Mine 

of White County Coal Corporation ("White County"), an underground coal 

mine located in southern Illinois. During the inspection, he observed a 

chalk line drawn for centering purposes on the unsupported roof of Room 

No. 6. The chalk line extended from the last row of permanent supports 

to the face for a distance of thirteen feet. Inspector Kaak was not 

present when the chalk line was drawn and he observed no one under the 

unsupported roof. However, the coal drill operator admitted to the 

inspector that he had drawn the chalk line and had walked under 

unsupported roof to do so, even though he had seen a red flag warning of 

the danger. 8 FMSHRC at 922. 

Inspector Kaak issued a section 104(d)(l) order of withdrawal to 

White County, alleging an unwarrantable failure violation of mandatory 

safety standard 30 C.F.R. § 75.200. £/ This violation was alleged in a 

rized representative of the Secretary finds another 

violation of any mandatory health or safety standard 

and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, 

he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected 

by such violation, except those persons referred to 

in subsection (c) of this section to be withdrawn 

from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary 

determines that such violation has been abated. 

(2) If a withdrawal order with respect to any 

area in a coal or other mine has been issued 

pursuant to paragraph (1), a withdrawal order shall 

promptly be issued by an authorized representative 

of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations 

similar to those that resulted in the issuance of 

the withdrawal order under paragraph (1) until such 

time as an inspection of such mine discloses no 

similar violations. Following an inspection of such 

mine which discloses no similar violations, the 

provisions of paragraph (1) shall again be applicable to that mine. 

30 u.s.c. § 814(d)(l) & (2). 

~/ 30 C.F.R. § 75.200 provides in part: 

No person shall proceed beyond the last permanent 

support unless adequate temporary support is 

1579 
section 104(d)(l) order because, as the record reflects, a preceding 

section 104(d)(l) citation had been issued approximately one month 

earlier. 30 U.S.C. § 814(d)(l). According to the inspector 1 s 

affidavit, the chalk line had been drawn one hour before he detected the 

violation. The inspector terminated the order twenty-five minutes 

later, after the miners were reinstructed on the roof control plan. 

During a subsequent regular quarterly inspection of the mine, on 

February 12, 1986, Inspector Kaak observed footprints under unsupported 

roof in the crosscut between the No. 6 and 7 entries. Again, the 

inspector did not observe anyone under the unsupported roof nor was he 

able to obtain further information about the incident. The inspector 

issued a section 104(d)(2) order of withdrawal to White County alleging 

another unwarrantable failure violation of section 75.200 (n. 2 supra). 

This violation was alleged in a section 104(d)(2) order because of the 

preceding issuance of the section 104(d)(l) order. 30 U.S.C.§§ 814(d) 

(1) & (2). This order was terminated approximately one hour after it 

was issued. 

White County contested both orders and challenged the unwarrantable failure findings. White County moved for summary decision, 

arguing that the orders were invalid because they were not issued based 

upon findings of existing violations. Relying on certain unreviewed 

Commission administrative law judges 1 decisions, including two judges' 

decisions that we reverse today, 3/ Judge Melick held that section 

104(d) orders cannot be issued ba;ed upon findings of violations that 

occurred in the past but no longer exist when detected by the inspector. 

8 FMSHRC at 923. The judge found that the inspector did not observe any 

violations being committed and based the section 104(d) orders upon 

evidence of past violations. Id. Therefore, the judge granted White 

County partial summary decisiofl:" modified the section 104(d) orders to 

section 104(a) citations, 30 U.S.C. § 814(a), and ordered the parties to 

confer regarding the desirability of further proceedings. 8 FMSHRC at 

923-24, Thereafter, White County advised the judge that it did not wish 

to contest the citations further, and the judge dismissed the case. 

8 FMSHRC 994 (June 1986)(ALJ). We granted the Secretary of Labor's 

petition for discretionary review and heard oral argument. 

In Nacco, supra, we addressed the closely related question of 

whether an inspector may issue a citation under section 104(d)(l) for a 

violation not in existence at the time of its detection by an inspector. 

We held that the enforcement sanctions of section 104(d) are not 

restricted to existing violations observed by the inspector. Rather,· 

these sanctions are to be applied to violations caused by the operator 1 s 

unwarrantable failure to comply with mandatory standards -- regardless 

of whether they are in existence at the time of detection. Nacco, slip 

provided or unless such temporary support is not 

required under the approved roof control plan and 

the absence of such support will not pose a hazard 

to the miners. 

~/ Nacco, supra; Emerald Min~s Corporation, 9 FMSHRC ~-' Docket No. 

PENN 85-298-R (September 30, 1987). 
op. at 5-10. Accord: Emerald Mines, infra, slip op. at 4-6. We based 

this conclusion on the text of section 104(d), its legislative history, 

the section's purpose of deterrence, and the overall scheme of the Mine 

Act. Id. We emphasized the importance of unwarrantable failure 

findings within the context of the graduated enforcement scheme of 

section 104(d) that provides "increasingly severe sanctions for 

increasingly serious violations or operator behavior." Nacco, slip op. 

at 5, quoting Cement Division, National Gypsum Co., 3 FMSHRC 822, 828 

(April 1981). We held: 

The threat of th[eJ "chain" of citations and 

orders under section 104(d) provides a powerful 

incentive for the operator to exercise special 

vigilance in health and safety matters because it is 

the conduct of the operator that triggers section 

104(d) sanctions, not the coincidental timing of an 

inspection with the occurrence of a violation. Indeed, Congress viewed section 104(d) as a key 

element in the overall attempt to improve health and 

safety practices in the mining industry ..•. To read 

out of the Act the protections and incentives of 

section 104(d) because an inspector is not physically present to observe a violation while it is 

occurring distorts the focus and blunts the 

effectiveness of section 104(d). We discern no 

warrant for such a formalistic approach. 

* 

Throughout section 104(d), enforcement action is 

consistently linked to the inspector 1 s determination 

that a violation has resulted from the operator's 

unwarrantable failure to comply with a mandatory 

standard. The focus in section 104(d) is constantly 

upon the operator 1 s conduct in failing to comply 

with the cited mandatory standard, not upon the 

current detection and existence of the violation. 

Slip op. at 6 (citations omitted; emphasis in original). 

Although the present case involves section 104(d)(l) and (2) 

orders, whereas Nacco involved a section 104(d)(l) citation, the reasons 

that led us to conclude that 104(d) citations could be issued for prior 

violations not detected by the inspector at the time of occurrence apply 

to orders issued under sections 104(d)(l) and (2) as well. Those 

reasons apply whether a citation or order is involved because the focus 

of section 104(d) is upon unwarrantable failure by the operator not upon 

whether its detection occurs concurrently with its commission. Further, 

section 104(d) orders are the procedural vehicles both specified and 

required by the Mine Act for alleging violations involving unwarrantable 

failure once a section 104(d)(l) citation has been issued. Therefore, 

we hold that section 104(d) orders may be based upon violations detected 

by the inspector during an inspection occurring after the violation has 

1581 
ceased to exist. See Nacco, slip op. at 5-10; Emerald, slip op. at 

4-6. f±/ 

With respect to the chalk line violation in this proceeding, the 

inspector issued the contested section 104(d)(l) order within one hour 

after learning that the coal drill operator had proceeded under 

unsupported roof. The dangers of unsupported roof are well documented, 

and the violation in this case, proceeding under unsupported roof, is 

the type of violation that is unlikely to occur in the presence of an 

inspector. See Nacco, slip op. at 7. The same considerations apply 

with respect to the subsequent footprint violation. Such violations 

will ordinarily be detected by an inspector only after they have 

occurred. Under the rationale adopted by the judge, however, such 

unwarrantable conduct would not be subject to the unwarrantable failure 

sanctions mandated by the Mine Act. 

To the extent that the judge's decision rests upon a conclusion 

that only the term "inspection" appears in section 104(d) (as opposed to 

the use of both "inspection" and 11 investigation11 in section l04(a)) and 

that the term inspection is limited to detection of presently existing 

events only, we reject that rationale. First, the orders issued in this 

case arose from a section 103(i) "spot" inspection and from a regular 

quarterly inspection and, more importantly, as we held in Nacco, the 

term inspection is broad and includes inquiry into past as well as 

present events. Nacco, slip op. at 7-8. 

!±I See Greenwich Collieries, Div. of Pennsylvania Mines Corp., 

9 FMSHRC ~-' slip op. at 6, Nos. PENN 85-188-R, etc. (September 30, 

1987), as to the Secretary's policy regarding withdrawal of miners from 

a mine in those instances where section 104(d) orders are issued for 

violations no longer in existence. 

1582 
We therefore reverse the judge and vacate his modification of the 

section 104(d) orders to section 104(a) citations. Because the judge 

held that these orders were not properly issued under section 104(d). he 

did not reach the question of whether the alleged violations occurred as 

a result of the unwarrantable failure of the operator to comply with 30 

C.F.R. § 75.200. Therefore. we remand the matter to the judge for 

further proceedings consistent with this decision. 

L. Clair Nelson. Connnissioner 

1583 
Commissioner Lastowka, concurring: 

In this case the administrative law judge granted a motion by White 

County Coal Corporation for partial _summary decision. The judge's ruling 

involved a question of law raised by White County concerning whether an 

MSHA inspector properly could issue orders pursuant to section 104(d) of 

the Mine Act alleging violations that had occurred but were no longer in 

existence at the time of the MSHA inspection. The judge concluded that 

because "the inspector did not observe any violations being committed 

but ••• based his issuance of the [section] 104(d) orders ••• upon evidence of past violations", the orders were not properly issued pursuant 

to section 104(d). 8 FMSHRC at 923. Accordingly, the judge modified 

the orders to section 104(a) citations. Id. 

I agree with the majority that the judge's conclusion on the question 

of law at issue was erroneous and that a remand for further proceedings 

is necessary. I write separately in order to set forth the basis for my 

conclusion in the context of the particular circumstances of this case. 

In ruling on motions for summary decision the facts must be viewed 

in the light most favorable to the opposing party. United States v. 

Diebold, Inc., 369 U.S. 654 (1962). See 6 Moore's Federal Practice, 

§ 56.15[8] (1985). Cast in this ligh~the factual background underlying the question of law before us can be summarized as follows. On 

February 6, 1986, an MSHA inspector was conducting an inspection at White 

County's mine pursuant to section 103(i) of the Mine Act. 1/ While conducting this inspection the inspector observed a chalk line drawn on the 

roof of the mine in Room No. 6. The chalk line extended from the last row 

of roof support bolts to the coal face, a distance of about 13 feet. The 

miner who operated the coal drill admitted that he had drawn the chalk line 

and that in doing so he had placed himself under unsupported roof.]:_/ The 

1/ Section 103(i) provides: 

Whenever the Secretary finds that a coal or other mine 

liberates excessive quantities of methane or other explosive 

gases during its operations, or that a methane or other gas 

ignition or explosion has occurred in such mine which resulted 

in death or serious injury at any time during the previous five 

years, or that there exists in such mine some other especially 

hazardous condition, he shall provide a minimum of one spot 

inspection by his authorized representative of all or part of 

such mine during every five working days at irregular intervals., •. 

30 u.s,c, § 813(i). 

2/ The chalk line served as a guide to ensure that the coal face would 

be advanced in its .intended direction. See e.g., Deposition of Darrell 

Gene Marshall at 4. ----

1584 
miner's action in proceeding under unsupported roof violated mandatory 

standard 30 C.F.R. § 75.200. 

The MSHA inspector issued an order pursuant to section 104(d)(l) of 

the Mine Act charging the operator with a violation of section 75.200 

and finding that the violation resulted from an unwarrantable failure 

on the part of the operator to comply with the standard. 3/ 

Six days later, on February 12, 1986, the same MSHA inspector was 

conducting a regular quarterly inspection of the same mine, During this 

inspection the inspector observed footprints on the mine floor in an 

area of a crosscut that lacked roof support. The inspector was unable 

to obtain infonnation enabling him to attribute the footprints to a particular miner. He concluded, however, that the footprints established 

that a miner had been under unsupported roof in violation of 30 C.F.R. 

§ 75.200. Because the inspector further found that the violation was 

caused by White County's unwarrantable failure, and because he had issued 

a section 104(d)(l) order six days previously, this second violation of 

section 75.200 was alleged in an order issued pursuant to section 104(d)(2). 

30 U.S.C. § 814(d)(2). (The text of section 104(d)(l) and (2) is set forth 

in footnote 1 to the majority opinion). 

The legal challenge raised by the operator against the issuance of 

both orders is that because the inspector did not observe the violations 

being committed, i.e., he did not actually witness miners proceeding under 

unsupported roof but saw only physical evidence that they had done so, the 

violations could not be charged in orders issued pursuant to section 104(d). 

In another decision issued this date, the Commission has considered and 

rejected a challenge to the Secretary of Labor's authority to issue 

citations pursuant to section 104(d)(l) for violations that occurred but 

are not in existence so as to be observable at the time of an MSHA 

inspection. Nacco Mining Co., FMSHRC Docket Nos. LAKE 85-57-R, etc., 

September 30, 1987 (majority and concurring opinions). As explained 

below, White County's challenge to the issuance of orders pursuant to 

section 104(d) must be rejected for similar reasons. 

First, as in Nacco, part of the argument advanced by the operator and 

accepted by the administrative law judge concerns the presence of the word 

"inspection" and the absence of the word "investigation" in section 104(d) 

and the resulting impact, if any, on the Secretary's authority to charge 

violations under section 104(d) based on the results of an "investigation." 

As was the case in Nacco, it is unnecessary to address this quest~on in 

the present case, Section 104(d) provides that an MSHA inspector can 

undertake the enforcement action specified therein "upon any inspection of 

a , .. mine. 11 30 U.S. C. § 814 ( d) (1) (emphasis added) • The two section 

104(d) orders at issue in the present case were issued by the MSHA 

inspector upon a section l03(i) spot inspection and a section 103(a) 

3/ An order was issued pursuant to section 104(d)(l) because a citation 

had been issued to the operator, within the preceding 90 days, for a 

violation that MSHA found to be a significant and substantial violation 

caused by the operator's unwarrantable failure. 30 U.S.C. § 814(d)(l). 

1585 
regular quarterly inspection, respectively. Therefore, the question of 

whether MSHA can proceed under section 104(d) based upon the fruits of an 

ninvestigation" is not presented by this case and properly is left to a 

case in which that issue actually is presented. Nacco, slip op. at 14-15 

(concurring opinion). 

Second, because White County's arguments concerning the grammatical 

structure of section 104(d) parallel those of the operator in Nacco, I 

reject them for the reasons stated in my concurring opinion in Nacco. 

In particular, I conclude that a plain reading of section 104(d) permits the Secretary to cite the operator thereunder for violations that 

occurred prior to an MSHA inspector's arrival at the mine as well as for 

violations actually observed by the inspector. Nacco, slip op. at 15- · 

16 (concurring opinion). 

Third, as in Nacco, no damage is done to the enforcement logic underlying section 104(d) by upholding the Secretary's right to proceed under 

section 104(d) in citing the violations at issue. The distinguishing 

characteristic of section 104(d) is its focus on the operator's conduct 

in connection with a violation, i.e., did the operator act "unwarrantablyn. 

The nature of this inquiry and the manner in which it is determined are 

the same regardless of whether an MSHA inspector is present to observe 

the violative conduct. Nacco, slip op. at 17-18 (concurring opinion). 

Furthermore, an important safety purpose is served by upholding the 

Secretary's right to direct one of his "most powerful instruments for 

enforcing mine safety" against violative conduct occurring out of the 

sight of an MSHA inspector. Id. at 18-19, quoting UMWA v. FMSHRC & Kitt 

Energy Corp., 768 F.2d 1477,-Y479 (D.C. Cir., 1984-Y-:--As is the case with 

an observed violation, applying section 104(d)'s enforcement scheme against 

unobserved violations will serve to forcefully dissuade repetition of the 

violative conduct. Id. 

Fourth, no practical problem is presented by upholding the Secretary's 

right to proceed under section 104(d) in the circumstances of the present 

case, Even before the issuance of the section 104(d) orders challenged here, 

the operator already was under a section 104(d) probationary chain. See n. 3, 

supra (concurring opinion), The inspectorvs issuance of the first section 

104(d) order for a violation that the drill operator admitted he had just 

committed, and the issuance of the second section 104(d) order six days later 

for a violation that apparently had occurred only shortly before the inspector's arrival Deposition of MSHA inspector at 7), present none of the 

dire consequences claimed to be caused by permitting the citation under 

section 104(d) of violations not actually observed at the time of their 

commission, See, e, ., White Countyvs brief at 13-17. Prior to the issuance of the orders contested in this case, the operator knew that it was 

on a section 104(d) chain and was aware of the consequences that would flow 

from repetition of further unwarrantable violations. The violations alleged 

to have been caused by the operator's unwarrantable failure were cited by 

the inspector almost immediately after their occurrence. As was the case in 

Nacco, when measured against the record before us, the specter of abuse that 

the operator raises against the Secretary's right to proceed under section 

104(d) for violations not observed by an inspector proves far more theoretical 

than factual. 

1586 
Finally, the one facet of the enforcement of section 104(d) that 

distinguishes the present case from Nacco requires no difference in result. 

In Nacco the enforcement action taken by the Secretary was the issuance of 

a section 104(d)(l) citation. Here, the MSHA inspector issued section 

104(d)(l) and section 104(d)(2) orders. The course of the inspector's 

enforcement actions, however, was dictated by the statutory scheme, not by 

an exercise of discretion on his part. Once the inspector made the findings 

set forth in section 104(d) concerning the existence of the violations and 

the nature of the operator's conduct in connection with the violations, his 

issuance of orders pursuant to section 104(d) was mandated by the Mine Act, 

Thus, whether a citation or an order is to be issued under section 104(d) is 

determined solely by whether and where the operator is on a section 104(d) 

probationary chain, and the facts surrounding the violation. Insofar as the 

appropriate extent of the withdrawal of miners caused by the issuance of an 

order is concerned (See slip op. at 5 n,6 (majority opinion)), section 

104(d)(l) provides that the withdrawal order shall cover "all persons in 

the area affected by such violation.It 30 U.S.C. § 814(d)(l). The record 

in the present case provides absolutely no indication that the inspector's 

exercise of his authority to order withdrawal based on the violations at 

issue exceeded proper bounds. See, e.g., Oral Arg. Tr. at 5-6. 

Accordingly, I concur in the majority's reversal of the administrative 

law judge's grant of partial summary judgment and the remand for further 

appropriate proceedings. 

1587 
Chairman Ford, dissenting: . 

For the reasons stated in my dissent today in Nacco Mining Co., 9 FMSHRC 

(Sept. 30, 1987), I would affirm the decision of Administrative Law 

Judge Melick in this case. That dissent is, therefore, incorporated by 

reference herein. In my view, the Mine Act does not authorize the issuance 

of any unwarrantable failure sanctions, be they citations in Nacco or withdrawal orders here, when the violations in question are past, completed and 

not observed by the issuing inspector. 

Furthermore, as noted at p. 35 of my dissent in Nacco, supra, all necessary 

safety and health purposes would have been served, within the statutory framework, if the violations in this case had been cited under section l04(a). 

30 U.S.C. 814(a). Production would have been interrupted until the offending 

miners had been reinstructed in proper procedures regarding unsupported roof. 

Here, the imposition of one of the Secretary's more formidable enforcement 

tools served no additional purpose other than the hollow castigation of the 

mine operator. 

Accordingly, I dissent. 

At:::~ Chairman 

1588 
Distribution 

Ann Rosenthal, Esq. 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Thomas W. Meyers, Esq. 

United Hine Workers of America 

56000 Dilles Botton 

Shadyside, Ohio 43947 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Paul W. Reidle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

58th Floor, 6700 Grant St. 

Pittsburgh, Pennsylvania 15219 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1589 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 30, 1987 

EMERALD MINES CORPORATION 

v. 

SECRETARY OF LABOR, Docket No. PENN 85-298-R 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY: Backley, Doyle and Nelson, Commissioners 

This proceeding arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1982), and involves the issuance 

of a citation pursuant to section 104(d)(l) of the Mine Act by an 

inspector of the Department of Labor's Mine Safety and Health Administration C'MSHA11 ) as a result of an inspection conducted pursuant to 

section l03(g)(l) of the Act. ll Commission Administrative Law Judge 

Section 104(d)(l) states: 

If, upon an inspection of a coal or other mine~ an 

authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation is of 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he shall 

include such finding in any citation given to the 

operator under this [Act.] If, during the same 

inspection or any subsequent inspection of such mine 

1590 
Gary Melick held that the section 104(d) citation was not properly 

issued because the cited violative event had occurred several days 

before the inspector visited the mine. The judge concluded that, 

because the inspector had been engaged in an investigation of a past 

event rather than in an inspection of an existing condition, only a 

section 104(a) citation could be issued. 8 FMSHRC 324 (March 

1986)(ALJ). The Conunission granted the petition for discretionary 

review filed by the United Mine Workers of America ("UMWA") and heard 

oral argument. In another case decided this date, Nacco Mining Co., 

9 FMSHRC , Docket Nos. LAKE 85-87-R and 86-2 (September 30, 1987), we 

concluded~hat the Mine Act permits the issuance of a section 104(d)(l) 

citation under circumstances similar to those presented in this proceeding. For the reasons set forth in Nacco, we reverse and remand. 

The essential facts are not in dispute. On July 30, 1985, MSHA 

Inspector Joseph Koscho received a complaint pursuant to section 

103(g)(l) of the Mine Act (n. 1 infra). The complaint alleged that a 

within 90 days after the issuance of sue~ citation, 

an authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection (c) of this section to be 

withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the 

Secretary determines that such violation has been 

abated. 

30 u.s.c. § 814(d)(l). 

Section 103(g)(l) provides in part: 

Whenever a representative of the miners or a miner 

in the case of a ..• mine where there is no such 

representative has reasonable grounds to believe 

that a violation of this [Act] or a mandatory health 

or safety standard exists~ .•• such miner or 

representative shall have a right to obtain an 

immediate inspection by giving notice to the 

Secretary or his authorized representative of such 

violation •... Upon receipt of such notification, a 

special inspection shall be made as soon as possible 

to determine if such violation or danger exists in 

accordance with the provisions of this [Title]. If 

the Secretary determines that a violation or danger 

does not exist, he shall notify the miner or 

representative of the miners in writing of such 

determination. 

30 u.s.c. § 813(g)(l). 

1591 
violative accumulation of methane had occurred at the No. 1 Mine of 

Emerald Mines Corporation ( 11Emerald11 ), an underground coal mine located 

in Pennsylvania. 

On July 31, 1985, Inspector Koscho went to the mine and reviewed 

records with respect to the methane detectors and interviewed miners who 

were present when the alleged methane accumulation occurred. On August 

1, 1985, the inspector visited the site of the alleged accumulation, 

tested for methane, and found only a small amount. He also tested the 

methane monitor on the continuous mining machine used on July 29 and 

found it to be working. However, on the basis of statements of miners 

whom he interviewed, the inspector determined that on July 29 there had 

been a violation of mandatory safety standard 30 C.F.R. § 75.308 when, 

following the detection of methane accumulations of 2.5% to 2.6% in the 

002 section, the continuous mining machine was not immediately deenergized while changes were being made in the ventilation of the 

working places. ~/ 

On August 8, 1985, the inspector issued to Emerald a citation 

pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging 

a violation of section 75.308. The inspector also designated the 

violation as being of a "significant and substantial" nature. On August 

24, 1985, at the direction of his supervisor, Inspector Koscho modified 

the citation to a citation issued pursuant to section 104(d)(l) of the 

Act to reflect MSHA's assertion that the violation was caused by 

Emerald's unwarrantable failure to comply with section 75.308. 

Emerald contested the propriety of the section 104(d)(l) citation 

essentially on the basis that it was issued for a violation that no 

longer existed when detected by the MSHA inspector. Emerald then paid 

the civil penalty proposed by the Secretary for the alleged violation. 

In his decision, the judge found that Emerald's payment of the proposed 

penalty waived any contest of the violation itself and of the significant and substantial finding. 8 FMSHRC at 325. However, the judge also 

found that Emerald had tendered its payment under the mistaken 

impression that the citation was issued pursuant to section 104(a) of 

the Act rather than section 104(d)(l). The judge ruled that, in fairness, and to avoid any future detriment to the operator stemming from an 

inaccurate record of its history of violations, Emerald's challenge to 

~/ 30 C.F.R. § 75.308 states in part: 

If at any time the air at any working place, when 

tested at a point not less than 12 inches from the 

roof, face, or rib, contains 1.0 volume per centum 

or more of methane, changes or adjustments shall be 

made at once in the ventilation in such mine so that 

such air shall contain less than 1.0 volume per 

centum of methane. While such changes or adjustments are underway and until they have been 

achieved, power to electric face equipment located 

in such place shall be cut off ...• 

1592 
the unwarrantable failure finding survived. J/ 

With respect to the allegation of unwarrantable failure, the judge 

held that such a finding under section 104(d) must be based upon an 

inspection of the mine, and that the citation in this matter was not 

founded upon an inspection but rather upon an investigation conducted 

through subsequent interviews and the examination of records several 

days later. 8 FMSHRC at 328. This conclusion resulted from the judge's 

view that inspections pertain only to examinations of existing conditions and investigations pertain only to past events. Id. The judge 

then modified the section 104(d) citation to a citation issued pursuant 

to section 104(a) of the Act and dismissed the case. 8 FMSHRC at 328-

29. We conclude that the judge erred. 

We have held today in Nacco that the enforcement sanction of a 

section 104(d) citation is n~stricted to existing violations 

observed by the inspector. Rather, a citation issued pursuant to 

section 104(d)(l) may be applied to violations caused by the operator's 

unwarrantable failure to comply with mandatory standards -- regardless 

of whether the violations are in existence at the time that they are 

detected by an inspector. Nacco, slip op. at 5-10. We based this 

conclusion upon an examination of the text of section 104(d), its 

legislative history, the section's purpose of deterrence, and the 

overall enforcement scheme of the Mine Act. Id. We pointed 

specifically to the graduated enforcement scheme of section 104(d) that 

provides "increasingly severe sanctions for increasingly serious 

violations or operator behavior." Slip op. at 5, quoting Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 828 (April 1981). We held: 

The threat of th[e] "chain" of citations and 

orders under section 104(d) provides a powerful 

incentive for the operator to exercise special 

vigilance in health and safety matters because 

it is the conduct of the operator that triggers 

section 104(d) sanctions, not the coincidental 

timing of an inspection with the occurrence of a 

violation. Indeed, Congress viewed section 104(d) 

as a key element in the overall attempt to improve 

health and safety practices in the mining industry . 

... To read out of the Act the protections and 

incentives of section 104(d) because an inspector is 

not physically present to observe a violation while 

it is occurring distorts the focus and blunts the 

effectiveness of section 104(d). We discern no 

warrant for such a formalistic approach. 

Throughout section 104(d), enforcement action is 

11 No issue concerning this aspect of the judge's decision has been 

raised on review and we intimate no view as to the propriety of that 

ruling. 

1593 
consistently linked to the inspector's determination 

that a violation has resulted from the operator's 

unwarrantable failure to comply with a mandatory 

standard. The focus in section 104(d) is constantly 

upon the operator's conduct in failing to comply 

with the cited mandatory standard, not upon the 

current detection and existence of the violation. 

Slip op. at 6 (citations omitted; emphasis in original). 

As noted in Nacco, many violations, by their very nature, are 

unlikely to be observed until after they occur. Slip op. at 7. The 

violation at issue in this case presents precisely such a situation. 

The condition precedent to a violation of section 75.308 is the presence 

of 1% or more of methane in a working place. The transitory nature of 

methane accumulations and the vital necessity of immediately reducing 

the level below 1% makes it unlikely that an inspector would discover a 

violation of section 75.308 while it was occurring. Under the judge's 

decision, such a past violation, even though caused by an operator's 

unwarrantable failure, would escape the sanction and deterrent effect of 

section 104(d), which is designed to address unwarrantable failure. As 

we concluded in Nacco: "Were we to agree with the approach adopted by 

the judge, the statutory disincentive for [such] operator misconduct 

would be lost." Slip op. at 7. 

As we indicated in Nacco, the term "inspection" in section 104(d) 

of the Mine Act is not limited, for purposes of that section, to 

observation of presently existing circumstances but includes inquiry 

into past events as well. Slip op. at 7-8. The present case was 

initiated by a complaint of a possible violation made to MSHA pursuant 

to section 103(g)(l) of the Act. That section provides to representatives of miners the right to obtain an immediate "inspection" 

whenever the representative has reasonable grounds to believe that a 

violation exists. We stated in Nacco: 

There is nothing in the language of section 103(g) 

that requires the violation to be ongoing when the 

inspector arrives at the mine site. As a practical 

matter, the violation may have been corrected 

shortly after the request of the miners' representative and before the inspector reaches the mine. 

Yet the inspector is nonetheless on an "inspection" 

and, if he finds that a violation has occurred, he 

may cite it using the full panoply of sanctions 

available under the Act. 

Slip op. at 8. 

Arguments similar to those advanced by the operator in Nacco 

concerning the meaning of "investigation" and "inspection,!! the meaning 

of the term 11 finds 11 in section 104(d), and the asserted "present time" 

focus of section 104(d), have been raised herein by Emerald and are 

rejected for the reasons set forth in Nacco. 

1594 
In sum, we conclude that a section 104(d) citation resulting from 

a section 103(g)(l) inspection may be based upon a violation detected 

during an inspection occurring after the violation has ceased to exist. 

Thus, we hold that the judge erred in concluding that the citation was 

issued improperly under section 104(d) of the Mine Act. 

Accordingly, we reverse the judge and vacate his modification of 

the section 104(d) citation to a section 104(a) citation. Because the 

judge held that the section 104(d) citation was not issued properly, he 

did not consider the merits of the unwarrantable failure allegation 

included in the citation. Therefore, we remand this matter to the judge 

for further proceedings consistent with this decision. 

1595 
Commissioner Lasiowka, concurring: 

In this case the administrative law judge granted a motion by Emerald 

.'lines Corporation for partial summary decision. Although Emerald raised 

several alternative grounds upon which it believed summary decision was 

appropriate, the sole basis articulated by the judge for his grant of the 

motion was that because "the citation at bar was not based on an inspection 

of the mine but upon an investigation through subsequent interviews and the 

examination of records conducted by the inspector several days after the 

incidents giving rise to the violation'', the violation could not be properly cited under section 104(d). 8 FMSHRC at 328. See also Tr. at 

114-16. According , the judge modified the citation to one issued 

pursuant to section 104(a) of the Mine Act. Id. 

I agree with the ority that the judge's grant of partial summary 

decision was erroneous. I ·write separately to set forth the basis for my 

conclusion in the context of the particular circumstances of this case. 

Although the judge concluded that the citation was not properly issued 

pursuant to section 104(d) because it was not based "on an inspection" of 

Emerald's mine, the record flatly contradicts his premise. It is undisputed 

that the ~IS1L\ inspector was at Emerald's mine pursuant to a miner's report 

of an al violation of the Mine Act and his request for an inspection 

pursuant to section 103(g) of the Act. The miner's handwTitten report to 

~·fSHA stated: 

Exh. R-L 

July 30, 1985 

I am requesting a 103G [sic) at the Emerald Hine, 

Waynesburg Pa. of an incident that occured [sic) 

on July 29, 1985 in the 002 section on the Sam to 

.'.+pm shift. 

Amount of 2.6% [methane] was detected and the 

mine foreman did not take the appropriate action 

according to the law, but proceeded to make adjustments in air by ling out. 

Section l03(g) of the Mine Act, referenced in the miner's report to 

provides: 

enever a representative of the miners or a miner ... 

tas reasonable grounds to believe that a violation of 

this Act or a mandatory health or safety standard 

exists, or an imminent danger exists, such miner or 

representative s!iall have a to obtain an 

immediate inspection by giving notice to the Secretary or 1lis authorized representative of such 

violation or danger. Any such notice shall be 

1596 
reduced to writing, signed by the representative 

of the miners or by the miner, and a copy shall be 

provided the operator or his agent no later than at 

the time of inspection, except that the operator or 

his agent shall be notified forthwith if the complaint 

indicates that an imminent danger exists. The name 

of the person giving such notice and the names of 

individual miners referred to therein shall not appear 

in such copy or notification. Upon receipt of such 

notification, a special inspection shall be made as 

soon as possible to determine if such violation or 

danger exists in accordance with the provisions of 

this title. If the Secretary determines that a violation or danger does not exist, he shall notify the 

miner or representative of the miners in writing of 

such determination. 

30 U.S.C. § 813(g) (1) (emphasis added). Pursuant to this grant of statutory 

authority, the MSHA inspector conducted the requested inspection and, as 

a result, issued the contested citation. Therefore, the challenged enforcement action taken by the Secretary under section 104(d) was indeed taken 

"upon an inspection11 and the judge erred in finding otherwise. 

Although the judge did not discuss any further rationale for his grant 

of partial summary decision, he did cite several administrative law judge 

decisions, including that in Nacco Mining Co., 8 FMSHRC 59 (January 1986)(ALJ), 

in support of his disposition. Today, the Commission has issued its decision 

in Nacco reversing the judge's decision relied upon by the judge in the present 

case. Nacco, the majority and concurring opinions extensively discuss the 

reasons why, as a matter of law, it is not improper for MSHA to proceed under 

section 104(d) for violations that occurred but no longer exist at the time 

of an ~1SHA inspection. Because the arguments raised by the operator in the 

present case parallel, in all essentials, those raised and addressed in Nacco 

I reject them for the reasons stated in my concurring opinion in Nacco, s 

op. at 12-20. 

I also note that in the present case, as in Nacco and White County Coal 

Corp., D1SHRC Docket No. LAKE 86-58-R, etc., also issued this date, the 

record discloses no impediment to a logical application of the enforcement 

scheme provided for in section l04(d). The violation at issue was alleged 

to have occurred on aonday, July 29, 1985. It was reported to MSHA on 

Tuesday, July 30th. On Ju 31st and August 1st the MSHA inspector conducted 

a section 103(g) inspection at the mine concerning the reported violation. 

On August 8th he issued a citation pursuant to section 104(a) of the Mine Act, 

which citation also found the violation to be "significant and substantial". 

On t 24th, a further finding that the violation resulted from an unwarrantable failure on the part of the operator was made. All the necessary 

predicates for a section 104(d) (1) citation being met, the citation accordingly was modified to a section 104(d)(l) citation. With the issuance of 

this modification, Emerald was given timely notice that it was subject to 

a section 104(d) probationary chain and that further unwarrantable violations 

during the next 90 days would result in the issuance of withdrawal orders. 

159 7 
Thus, in the circumstances of this case, the Secretary's action in 

proceeding under section 104(d) in citing the violation at issue was procedurally proper and consistent with the intended purpose underlying 

section 104(d). As in Nacco, "no injustice to the operator or ••• perversion 

of section 104(d)'s enforcement scheme has been caused by the Secretary's 

actions." Nacco, slip op. at 20 (concurring opinion). 

Accordingly, I join the majority in reversing the judge's decision and 

in remanding for further proceedings. 

Commissioner 

1598 
Chairman Ford, dissenting: 

For the reasons stated in my dissent today in Nacco Mining Co., 9 FMSHRC 

(Sept. 30, 1987) I would affirm the decision of Administrative Law Judge 

Melick. That dissent, therefore, is incorporated herein by reference. In 

my view, sanctions issued pursuant to section 104(d), 30 u.s.c. 814(d) are 

limited to ongoing violations actually observed by inspectors in the course 

of their inspections. Here, the citation, originally issued pursuant to 

section 104(a), 30 U.S.C. § 814(a), specified that it was based upon an. 

investigation conducted in the course of several days after the violation 

was alleged to have occurred. Section 104(d) clearly limits unwarrantable 

failure sanctions to those violations discovered in the course of inspections, 

not investigations into past occurrences. 

Furthermore, the facts of this case raise the same issues with respect 

to the 90 day probationary period of section 104(d) as were raised in Nacco, 

supra. Here, the violation was alleged to have occurred on July 29, 1985. 

It was charged in a section 104(a) citation issued August 8, 1985. Twentyfive days after the violation was alleged to have occurred, the citation was 

modified August 23, 1985, on orders from the issuing inspector's superiors, 

to allege unwarrantable failure under section 104(d). 

As in Nacco, the majority gives no guidance as to how the 90 day period 

is now to be computed when the triggering citation can be issued post hoc, 

even though Emerald specifically raises the issue. Brief at pp. 17-18-.~ 

Does the probationary period begin on July 29, August 8, or August 23? 

If, as the Secretary argues, the latter date is correct, the operator in 

effect is subject to a 115 day probationary period and the statutory period 

of 90 days is jettisoned. See generally, Nacco dissent, supra at pp. 33-34. 

Lastly, on the facts of this case, it is apparent that the term 

"inspection" has now been thoroughly elasticized to encompass all Secretarial enforcement activity. The so-called finding of unwarrantability 

was in fact made by the issuing inspector's superiors who conducted no 

investigation let alone inspection with respect to the alleged violation. 

Such transparent bootstrapping so as to impose the unwarrantable failure 

chain for a past abated violation seriously compromises the voluntary 

compliance philosophy of the Act. See Nacco dissent, supra, p. 26. 

Accordingly, I dissent. 

Chairman 

1599 
Distribution 

Ann Rosenthal, Esq. 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Thomas W. Meyers, Esq. 

United Mine Workers of America 

56000 Dilles Botton 

Shadyside, Ohio 43947 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Paul W. Reidle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

58th Floor, 6700 Grant St. 

Pittsburgh, Pennsylvania 15219 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1600 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 30, 1987 

GREENWICH COLLIERIES, DIVISION 

OF PENNSYLVANIA MINES 

CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS 

OF AMERICA (UMWA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

v. 

GREENWICH COLLIERIES 

Docket Nos. PENN 85-188-R 

PENN 85-189-R 

PENN 85-190-R 

PENN 85-191-R 

PENN 85-192-R 

Docket No. PENN 86-33 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY: Backley, Doyle and Nelson, Commissioners 

This consolidated contest and civil penalty case arising under the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. 

(1982), presents us with a question of law, similar to that decided this 

date in Nacco Mining Co., 9 FMSH.RC ~' Docket Nos. LAKE 85-87-R and 

86-2 (September 30, 1987): May the Secretary of Labor, in the course of 

investigations, issue orders pursuant to section 104(d) of the Mine Act 

based upon violations that are detected after the violations have ceased 

1601 
to exist? l/ Commission Administrative Law Judge Roy L. Maurer held 

that such orders could not be issued. 8 FMSHRC 1105 (July 1986)(ALJ). 

For the reasons stated in our decision in Nacco, supra, we reverse and 

remand. 

The essential facts are as follows: On February 16, 1984, a 

methane ignition and explosion occurred at the Greenwich No. 1 mine, an 

underground coal mine operated by Greenwich Collieries, Division of 

Pennsylvania Mines Corporation ("Greenwich"), and located in southwestern Pennsylvania. Three miners were killed and eleven others were 

injured in the explosion. Representatives of the Department of Labor's 

Mine Safety and Health Administration ("MSHA") arrived at the mine, 

engaged in rescue and recovery efforts, observed conditions at the site, 

and began an investigation of the cause of the explosion. As part of 

its investigation, MSHA examined the entire mine between February 25 and 

April 5, 1984, and between March 27 and April 27, 1984, took sworn 

statements from numerous individuals who participated in the recovery 

operations or who had information regarding the conditions in the mine 

prior to the explosion. The Secretary's investigators concluded that 

the operator's unwarrantable failure to comply with five mandatory 

lf Section 104(d)(l) provides: 

If, upon an inspection of a coal or other mine, an 

authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation is of 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety and health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he shall 

include such finding in any citation given to the 

operator under this [Act]. If, during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection (c) of this section to be 

withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the 

Secretary determines that such violation has been 

abated. 

30 u.s.c. § 814(d)(l). 

1602 
safety standards contributed to the accident. Therefore, on March 29, 

1985, MSHA Inspector Theodore W. Glusko issued to Greenwich the five 

section 104(d)(l) orders of withdrawal at issue in this case. The 

orders alleged that violations of various safety standards had occurred 

in December 1983 and January and February 1984. Each of the section 

104(d)(l) orders indicated that they were based on a section 104(d)(l) 

citation issued to Greenwich on February 24, 1984. The orders also 

indicated that they were terminated at the time that they were issued. 

No miners were withdrawn from the mine as a result of the orders. 

Greenwich contested the orders and subsequently filed a motion for 

summary decision, arguing that the orders were not issued properly under 

section 104(d) because the inspector had not observed the violations 

during an inspection but had concluded that the violations occurred 

based on MSHA 1 s investigation after the violations had ceased to exist. 

In granting Greenwich 1 s motion, the judge relied upon certain unreviewed 

decisions of Commission administrative law judges, including two 

decisions that we reverse today. 2/ He held that the orders were 

invalid "because an order issued ~nder section 104(d) should be based on 

an inspection as opposed to an investigation and the above orders state 

on their face that the violations which had allegedly occurred are based 

on an investigation and no longer then existed.ti 8 FMSHRC at 1107. 

Consequently, the judge vacated the unwarrantable failure allegations 

included in the section 104(d) orders, modified the orders to citations 

issued pursuant to section 104(a), 30 U.S.C. § 814(a), and stated that 

further proceedings would be held to resolve the remaining issues. 8 

FMSHRC at 1107. Greenwich's motion for summary decision also contended 

that the orders did not meet certain procedural prerequisites of section 

104(d)(l) in that they were not issued within 90 days of the underlying 

section 104(d) citation and were not issued "forthwith.ti Given his 

disposition of the motion, the judge did not reach the merits of these 

contentions. 

The Secretary of Labor, joined by the United Mine Workers of 

America, which intervened in the proceeding, filed with the Commission a 

Petition for Interlocutory Review and a Motion to Stay Proceedings. We 

granted both the petition and the motion and heard oral argument. We 

conclude that the judge erred. In Nacco, supra, we set forth the proper 

interpretation and application of section 104(d). We held that the 

enforcement sanctions of section 104(d) are not restricted to existing 

violations observed personally by the inspector. Rather, these 

sanctions may also be applied to violations caused by the operator s 

unwarrantable failure to comply with mandatory standards - regardless 

of whether the violations are in existence at the time of their 

detection. Nacco, slip op. at 5-10. Accord: Emerald Mines, infra, slip 

op. at 4-6. We based this conclusion on the text of section l04(d), its 

legislative history, the section 1 s purpose of deterrence and the overall 

enforcement scheme of the Mine Act. We emphasized the importance of 

unwarrantable failure findings within the graduated enforcement scheme 

of section 104(d) that provides "increasingly severe sanctions for 

~/ Nacco, supra; Emerald Mines Corporation, 9 FMSHRC , Docket No. 

PENN-85-298-R (September 30, 1987). 

1603 
increasingly serious violations or operator behavior. 11 Nacco, slip op. 

at 5, quoting Cement Division, National Gypsum Co., 3 FMSHRC 822, 828 

(April 1981). We held: 

The threat of th[e] "chain" of citations and orders 

under section 104(d) provides a powerful incentive 

for the operator to exercise special vigilance in 

health and safety matters because it is the conduct 

of the operator that triggers section 104(d) 

sanctions, not the coincidental timing of an 

inspection with the occurrence of a violation. 

Indeed, Congress viewed section 104(d) as a key 

element in the overall attempt to improve health and 

safety practices in the mining industry •... To 

read out of the Act the protections and incentives 

of section 104(d) because an inspector is not 

physically present to observe a violation while it 

is occurring distorts the focus and blunts the 

effectiveness of section 104(d). We discern no 

warrant for such a formalistic approach. 

* 

Throughout section 104(d), enforcement action is 

consistently linked to the inspector's determination 

that a violation has resulted from the operator 1 s 

unwarrantable failure to comply with a mandatory 

standard. The focus in section 104(d) is constantly 

upon the operator's conduct in failing to comply 

with the cited mandatory standard, not upon the 

current detection and existence of the violation. 

Slip op. at 6 (citations omitted; emphasis in original). 

In addition, we rejected the suggestion that Congress intended to 

distinguish between enforcement actions based upon an inspection and 

those based upon an investigation, and held that inclusion of the terms 

Hinspection or investigation" in section 104(a) as compared to use of 

the term "inspection" alone in section 104(d) was without legal 

significance regarding enforcement pursuant to section 104(d). Slip op. 

at 7-8. We based this conclusion upon the fact that the terms are not 

defined in the Mine Act, and that "common usage does not limit the 

meaning of 1 inspection 1 to an observation of presently existing circumstances nor restrict the meaning of 'investigation' to an inquiry into 

past events. 11 Slip op. at 8. The varied use of these terms within the 

Act and its legislative history also support this conclusion. Slip op. 

at 8-9. 

Although the present case involves orders issued pursuant to 

section 104(d)(l), whereas Nacco involved a citation issued pursuant to 

that section, for the reasons stated in Nacco, we hold that orders 

issued under section 104(d)(l) can also be based upon prior violations 

not observed by the inspector at the time of occurrence. In another 

case decided today, we have reached an identical conclusion. White 

1604 
County Coal Corp., 9 FMSHRC ~' Docket Nos. LAKE 86-58-R and LAKE 

86-59-R (September 30, 1987). Further, as we held in White County, 

supra, in general and assuming the other prerequisites for their 

issuance have been met, "orders are the procedural vehicles both 

specified and required by the Mine Act for alleging violations involving 

unwarrantable failure once a section 104(d)(l) citation has been 

issued." Slip op. at 4. 

We noted in Nacco that many violations, by their very nature, are 

not likely to be observed or detected until after they occur. Slip op. 

at 7. This is particularly so where the violation is a failure to act 

as required or where the violation causes or contributes to the event 

being investigated. Both types of violation are present here. Two of 

the section 104(d) orders allege a failure to conduct required mine 

examinations, one being the pre-shift examination of the active workings 

and the other being the weekly examination of the mine's ventilation 

system. These examinations are designed to monitor potentially 

hazardous conditions, including the accumulation of excessive levels of 

methane. As such, they warn the operator of impending danger and are 

necessary to assure overall mine safety. Under the judge's decision, 

such critical violations, even though caused by an operator's 

unwarrantable failure, would escape the unwarrantable failure sanction 

established by Congress. 

The remaining contested orders allege an insufficient volume and 

velocity of air ventilating the mine, violations of the mine 1 s approved 

ventilation system and methane and dust control plan, and a failure to 

take required precautions when making changes in mine ventilation. 

These allegations arose out of the inspection and investigation that the 

Secretary was required to conduct in order to determine, among other 

things, the cause of the accident and whether there was compliance with 

mandatory health and safety standards. 30 U.S.C. § 813. One purpose of 

such inspections and investigations is to avoid future accidents. If 

the Secretary determines that violations contributing to an accident 

were caused by the operator 1 s unwarrantable failure to comply with 

mandatory health and safety standards, citation of the violations 

pursuant to section 104(d) may deter future unwarrantable failure by an 

operator to assure compliance with mandatory health or safety standards. 

Congress did not intend to limit the inspectors 1 power to sanction 

unwarrantable operator conduct by removing from the purview of sect~on 

104(d) violations that occurred prior to a disaster but which were 

discovered only after the disaster. As we noted in Nacco, "[t]he focus 

in section 104(d) is constantly upon the operator 1 s conduct in failing 

to comply with the cited mandatory standard, not upon the current 

detection and existence of the violation." Slip op. at 6. For purposes 

of section 104(d), Congress did not intend to make distinctions between 

the citation of past and presently existing violations when it used the 

words "inspection" and "investigation" in the Act. Slip op. at 7-8. 

Consequently, section 104(d) enforcement actions may result from 

"inspections" as well as "investigations." 

Finally, although Greenwich argues that requiring the withdrawal 

of miners for a violation that no longer exists violates due process 

1605 
considerations, no miners were withdrawn from the mine when the orders 

in this matter were issued. The Secretary asserts that under such 

circumstances the issuance of an order that does not require withdrawal 

is consistent with his enforcement policy. Tr. Oral Arg. 20-21. This 

policy is appropriate in such circumstances and in no small way has 

persuaded us to conclude that the operator's due process argument on 

this issue is not well founded. 

For the foregoing reasons, we reverse the judge's legal conclusion 

that the orders here are invalid because they were issued based upon an 

investigation and after the violations ceased to exist. As noted above, 

Greenwich also challenged the validity of the orders because they were 

not issued within 90 days of the section 104(d)(l) citation upon which 

they were based and were not issued "forthwith." Slip op. at 3. The 

judge did not reach these issues and on remand shall rule specifically 

on them. Further, there are other issues in this case regarding the 

merits of the alleged violations and the Secretary's unwarrantable 

failure allegations that should be resolved by the judge on remand. 

~c-£~,Cv~ Richard V. Backley, 

1606 
Commissioner Lastowka, concurring: 

In this case the administrative law judge granted in part a motion by 

Greenwich Collieries for summary decision. In its motion Greenwich challenged 

the validity of five orders issued by MSHA pursuant to section 104(d)(l) 

of the Mine Act. Greenwich specified three grounds upon which it believed 

summary decision was appropriate: 

(1) The orders were not issued as a result of, and the 

alleged violtions were not detected during, an inspection, as required by section 104(d)(l); on the contrary, 

MSHA concluded that the alleged violations had occurred 

based on an investigation after the alleged violations 

no longer existed; 

(2) the orders were not issued within 90 days of the 

issuance of the section 104(d)(l) citation upon which 

they were based; and 

(3) the orders were not issued "forthwith" as required 

by the Mine Act. 

Greenwich's Motion for Summary Decision at 2. 

The administrative law judge 

ground, finding it "dispositive." 

reach Greenwich's other arguments 

decision. 

granted Greenwich's motion on the first 

8 FMSHRC at 1107. Therefore, he did not 

in support of its request for summary 

I agree with the majority that the judge's decision granting summary 

decision must be reversed and the case remanded for further proceedings. I 

write separately to explain the basis for my conclusion in the context of the 

particular circumstances of this case. 

In ruling on motions for summary decision the facts must be viewed in 

the light most favorable to the opposing party, here, the Secretary. United 

States v, Diebold, Inc., 369 U,S, 654 (1962). See 6 Moore 1 s Federal Practice, 

§56.15[8](1985), In any event, the essential facts are undisputed and can be 

summarized as follows. On February 16, 1984, three miners were killed and 

several others were injured as a result of an explosion at the Greenwich 

No, 1 Mine, This incident triggered MSHAvs exercise of most of the various 

statutory responsibilities assigned to it under the Mine Act, MSHA participated in rescue and recovery efforts, conducted inspections of the mine, 

investigated the cause of the explosion, issued numerous citations and orders 

alleging violations of the Mine Act and issued a final report setting forth 

its findings and conclusions concerning the explosion. 

The particular action taken by MSHA that is challenged by the operator in 

the present case is the issuance of five orders pursuant to section 104(d)(l) 

of the Mine Act. Each of these orders allege a violation of a mandatory 

standard, which MSHA de~ermined contributed to the cause of the explosion. 

The orders were issued on March 29, 1985, thirteen and one-half months 

after the explosion. The orders state that the violative conditions were 

observed "during the investigation" of the explosion. 

1607 
The challenge to the procedural validity of these orders that was found 

by the judge to be dispositive in part concerns whether, as a matter of law, 

the Secretary properly can cite under section 104(d) of the Mine Act violations of the Act that occurred, but which were no longer in existence at the 

time of an MSHA inspection so as to be observable by an inspector. As to 

this aspect of the question of law before us, I agree with the majority that 

simply because a violation occurs out of the sight of an }1SHA inspector and 

the violative condition no longer exists at the time the inspector arrives 

at the mine, the Secretary is not precluded from charging the violation in 

a citation or order issued pursuant to section 104{d). For the reasons 

stated in my concurring opinions in Nacco Mining Co., White County Coal 

Corp., and Emerald Mines Corp., all issued this date, the Secretary's 

authority to proceed under section 104{d) in such circumstances is consistent with the plain language of section 104{d). Furthermore, as I 

emphasized in Nacco, White County and Emerald, depending on the particular 

circumstances involved, the citation of unobserved violations pursuant to 

section 104(d) can serve to accomplish that section's intended purpose 

without damaging its underlying enforcement logic and without creating 

impractical implementation problems. 

Greenwich's challenge to the orders at issue includes the further assertion that the Secretary properly cannot proceed under section 104(d) if his 

determination that a violation of the Mine Act occurred resulted from an 

MSHA "investigation", rather than an MSHA "inspection." This argument also 

was raised by the operators in Nacco, White County and Emerald. As 

explained in my concurring opinions in those cases, however, consideration 

of their argument was unnecessary because each of those cases involved MSHA 

enforcement activity under section 104(d) that was, in fact, undertaken 

"upon an inspection." 30 U.S.C. § 814(d)(l). The factual circumstances 

surrounding MSHA's enforcement action in the present case are fundamentally 

different from those in the other three cases and serve to better focus 

consideration of the "inspection/investigation" issue. };._/ 

Section 104(d)(l) of the Mine Act provides that the enforcement action 

specified therein can be undertaken by the Secretary "upon any inspection 

of a coal or other mine. 11 30 U.S.C. § 814(d)(l)(emphasis added). The operator 

argues, and the judge agreed 9 that because the word "inspection" and the word 11 investigation11 are both used in the Mine Act in referring to various statutory 

responsiblities of the Secretary, a distinctive impact on the nature of the 

Secretaryvs activities was intended depending on the particular word used in 

l/ Even in this case the Secretary suggests that consideration of the 

issue may be inappropriate because, he asserts, the violative conditions 

actually were observed by MSHA inspectors conducting post-accident 

inspections. Oral Arg. Tr. at 3-4; Sec. Br. at 11-12. It is clear, 

however, that the Secretaryis issuance of the orders some thirteen and 

one-half months after the explosion was, in large part, based on information 

derived from MSHA 1 s extensive investigation into the causes of the explosion. 

Therefore, the question of law reserved in the other cases is fairly p~esented in the present case. 

1608 
a particular statutory provision. See, e.g., sections 103(a), 104(a) and 

107(a)(inspections and investigations); sections 103(b) and 105(c)(2)(investigations); and sections 104(d) and (e) (inspections). As related to the 

particular circumstances of the present case, the argument advanced is that 

the challenged orders were all issued upon an "investigation", rather than 

an "inspection", and therefore were not properly issued under section 104(d). 

The varying uses in the Mine Act of the words "inspection" and 

"investigation" are too numerous to attribute simply to editorial oversight 

or imprecise draftmanship. The Mine Act does not define the words, however, 

requiring that common usage be the first resort to determine their meaning. 

2A Sutherland Statutory Construction, §§ 47.01, 47.28 (4th ed. 1984). In 

Webster 1 s Third New International Dictionary (1971) common definitions of 

the words are provided which suggest that there are shades of distinctions 

in their meanings, but which also suggest that the meanings of the two words 

overlap to a certain extent and are not mutually exclusive. 2/ As is stated 

in the majority opinion in Nacco, in common usage "[b]oth words can encompass 

an examination of present and past events and of existing and expired conditions and circumstances." Nacco, supra, slip op. at 8. 

The question therefore becomes whether the distinctions or the similarities in the meanings of the words are to be given emphasis in the context of 

section 104(d). If the distinctions in meanings are emphasized, then the 

operator is correct and the Secretary is not authorized to issue citations 

or orders pursuant to section 104(d) if his determination that a violation 

occurred is based on information derived from an investigation. Conversely, 

if the similarities in the meanings of the words are given emphasis, then 

violations determined to exist as a result of MSHA investigations properly 

may be cited under section 104(d). 

For the reasons stated below, I agree with the majority's discussion 

and conclusion in Nacco (slip op. at 7-9) that, in the particular context 

of section 104(d), the presence of the word "inspection" and the absence 

of the word "investigation" in referring to the Secretary's enforcement 

activities authorized therein was not intended to have the substantive 

effect on the Secretary 1 s authority argued for by the operator. 

The distinguishing feature of section 104(d) is its authorization of the 

Secretary to make a special finding that a violation was caused by an 

2/ Eog,, "inspection: a strict or close examination; • , . an 

~- examination or survey of a community, or premises, or 

an installation by an authorized person (as to determine compliance with regulations or susceptibility to 

fire or other hazards." 

"investigation: detailed examination: study, research; 

a searching inquiry, an official probe. 11 

Webster's, supra, at 1170, 1189. 
"unwarrantable failure" of the operator to comply with the Act or a mandatory standard, The particular importance of an unwarrantable failure finding 

stems from the probationary effect triggered by its presence in a citation 

or order. Once a citation containing an unwarrantable failure finding and 

a significant and substantial finding has been issued, any further violation 

also caused by an unwarrantable failure within 90 days requires issuance of 

a withdrawal order, as do still further violations until a complete, clean 

inspection of the mine has taken place. UMWA v. FMSHRC & Kitt Energy Corp., 

768 F.2d 1477, 1479 (D.C. Cir. 1984). ThUS:-the plain focus of section 

104(d)ts enforcement scheme is on the conduct of a mine operator in relation 

to the occurrence of a violation. If a violation results from an operator's 

unwarrantable failure, tithe statute requires that a higher toll be exacted 

from the operator than is exacted in situations where, although a violation 

has occurred, the operator has not acted unwarrantably." Nacco, slip op. 

at 18 (concurring opinion). 

Section 104(d) is one of "the Secretary's most powerful instruments for 

enforcing mine safety" (Kitt Energy, supra, 768 F.2d at 1479), and the construction of unnecessary impediments hindering the Secretary's ability to 

fully exercise this special authority should not be undertaken lightly. As 

described above the focus of section 104(d) is on the conduct of an operator in connection with a violation. In this regard it must be emphasized 

that the nature of an operator's conduct in relation to a particular violation will not change depending on whether MSHA discovered the fact of 

violation through an inspection or through an investigation. Acceptance of 

the operator's argument in the context of section 104(d) would mean that 

the enforcement procedure established by Congress to specifically address 

and deter unwarrantable conduct on the part of mine operators could not be 

invoked in a large number of instances simply because the operator's unwarrantable violation was discovered during an MSHA "investigation" rather 

than during an MSHA "inspection." 

Given the remedial purpose of the Mine Act, the deterrent purpose of 

section 104(d) in particular, the lack of special definitions of "inspectionn 

and in the Mine Act, the substantial overlap in the commonly 

understand meanings of the words and the lack of any overriding contrary 

indication in the legislative history as discussed by the majority and dissenting opinions in this decision and the other decisions issued this date, 

I conclude that the Secretary properly can proceed under section 104(d) of 

the Mine Act in issuing citations and orders for violations that MSHA 

determines, the course of an investigation, to have occurred at a 

mineo Therefore, I concur in the majority's reversal of the judge's contrary conclusion and in the remand for further appropriate proceedings. 

I note that the further proceedings in this case necessarily will 

encompass consideration of the operator's remaining challenges to the 

validity of the section l04(d) orders at issue which were not reached by 

the judge in his first decision. These arguments concern the effect, if 

any, on the validity of the section 104(d) orders caused by the lapse of 

time between the occurrence of the violations, MSHA's determination that 

the violations occurred and the date that the orders ultimately were issued. 

In rejecting those arguments of the operator discussed in this opinion, I 

intimate no view as to the merits of the remaining arguments. They too raise 

1610 
important questions that will have to be resolved in light of the language 

and purpose of section 104(d). the particular circumstances surrounding the 

violations and the manner in which the Secretary proceeded in issuing the 

contested orders. 3/ 

Commissioner 

3/ I believe that the majority's expression of opinion concerning the 

Secretary's policy of issuing withdrawal orders that have no idling effect 

is premature. Slip op. at 5-6. In my view, that aspect of this case requires 

full consideration in conjunction with the disposition of the important 

issues remaining in this case. 

1611 
Chairman Ford, dissenting: 

For the reasons stated in my dissent today in Nacco Mining Co., 9 FMSHRC 

(Sept. 30, 1987), I would affirm the decision of Administrative Law 

Judge Maurer in this case. That dissent is, therefore, incorporated herein 

by reference. In my view the statutory restrictions on the use of unwarrantable failure sanctions for past completed violations unobserved by the 

inspector apply equally to citations and orders issued under section 104(d). 

30 u.s.c. 814(d). 

Furthermore, as noted in my Nacco dissent, supra, at pp. 33-36, the 

majority's decision places no temporal restrictions on the imposition of 

section 104(d) sanctions. The majority suggests that a procedural challenge 

may lie where section 104(d) orders are issued 13 months after the issuance 

of an underlying 104(d)(l) citation. However, the surer remedy against such 

gross distortions of the unwarrantable failure uchain" would be to restrict 

the application of section 104(d) to extant violations observed by inspec- · 

tors in the course of their inspections. I firmly contend that the statute 

so provides. 

Unlike my colleagues, I am not persuaded that a closure order that 

closes no mine or part thereof - or that withdraws no miners - serves the 

Secretary's enforcement policy. As noted in my Nacco dissent at p. 15, 

such an enforcement action is a dead letter, or as Greenwich contends, a 

"sham. 11 Brief at p. 13. 

Accordingly, I dissent. 

~~ Chairm n 

1612 
Distribution 

Ann Rosenthal, Esq. 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Thomas W. Meyers, Esq. 

United Mine Workers of America 

56000 Dilles Botton 

Shadyside, Ohio 43947 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Paul W. Reidl, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

R. Henry Moore, Esq. 

Rose, Schmidt, Chapman, Duff & Hasley 

900 Oliver Bldg. 

Pittsburgh, Pennsylvania 15222 

Administrative Law Judge Roy J. Maurer 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1613 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

QUINLAND COALS, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

September 30, 1987 

Docket No. WEVA 85-169 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty case arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)(the "Mine Act"), and 

presents three issues: (1) whether substantial evidence supports 

Commission Administrative Law Judge William Fauver 1 s findings of 

violations of 30 C.F.R. § 75.200 and 30 C.F.R. § 75.303, and his finding 

of negligence with respect to the violation of section 75.200 ; (2) 

whether an allegation by the Secretary of Labor ("Secretary") that a 

violation was caused by an operator's unwarrantable failure to comply 

with a cited standard can be contested in a civil penalty proceeding, 

where the order itself was not contested pursuant to section 105(d); and 

(3) whether the judge erred in considering certain exhibits. For the 

reasons that follow, we affirm the judge's findings of violation and 

negligence, hold that the judge erred in failing to rule on the merits 

of the unwarrantable failure allegation, and conclude that the judge 1 s 

consideration of the exhibits was not improper. 

I. 

The No. 1 Mine operated by Quinland Coals, Inc. ( 11Quinland11 ) is an 

underground coal mine located in southern West Virginia. On October 11, 

1984, Ernest Thompson, an inspector of the Department of Labor's Mine 

Safety and Health Administration ( 11MSHA"), conducted an inspection of 

the mine in order to inspect seals located in the mine 1 s East Mains 

area. 1/ The alleged violations concern the roof conditions in the 

ll The seals are concrete block bulkheads notched at least six inches 

into the ribs and flush with the floor and the roof. They were 

constructed following a methane explosion. Their purpose is to seal off 

the area where the explosion occurred from the rest of the mine. 

1614 
entry in which the No. 7 seal is located. 

The entry was accessible from a crosscut. In the entry and near 

its intersection with that crosscut, the inspector observed a large roof 

fall and as he walked toward the seal, he observed approximately ten 

broken posts lying on the ground in the entry. The inspector also 

observed that one side of the seal was being crushed by the weight of 

the roof. He noted that the roof was cracked and that the cracks ran 

from the roof fall to and beyond the seal. The inspector testified that 

he heard hissing through the cracks and that his methane detector 

registered an atmosphere of more than 5% methane in the inunediate 

vicinity of the seal. 

The inspector found that these conditions constituted a violation 

of 30 C.F.R. § 75.200 in that the roof was not adequately supported to 

protect persons from falls. ~/ The inspector also found that this 

violation was the result of Quinland's unwarrantable failure to comply 

with section 75.200 and that the violation significantly and substantially contributed to a mine safety hazard. 30 U.S.C. § 814(d)(l). 

Because a citation had been issued to Quinland pursuant to section 

104(d)(l) of the Mine Act, within 90 days prior to the October 11, 1984 

inspection, the inspector cited the violation of section 75.200 in an 

order issued pursuant to section 104(d)(l). Id. }/ Quinland abated the 

Tr. 21. See also Bureau of Mines, U.S. Department of Interior, A Dictionary of Mining, Mineral, and Related Terms 975 (1968). 

~/ Section 75.200, which restates section 302(a) of the Mine Act, 30 

U.S.C. § 862(a), provides in part: 

Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof 

control system of each coal mine and the means and 

measures to accomplish such system. The roof and 

ribs of all active underground roadways, travelways, 

and working places shall be supported or otherwise 

controlled adequately to protect persons from falls 

of the roof or ribs. A roof control plan and 

revisions thereof suitable to the roof conditions 

and mining system of each coal mine and approved by 

the Secretary shall be adopted and set out in 

printed form .... 

(Emphasis added.) 

}/ Section 104(d)(l) of the Mine Act states: 

If, upon any inspection of a coal or other mine, 

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation is of 

such nature as could significantly and substantially 

1615 
section 75.200 violation by installing approximately 20 posts in the 

entry in order to support the roof. 

Following the underground portion of the inspection, the inspector 

returned to the surface and went to the mine office where he reviewed 

that portion of the preshift examination record book relating to the No. 

7 seal area. The inspector observed the word 11 clear 11 written in the 

book to describe the condition of the No. 7 seal area as found by the 

preshift examiner on October 11, 1984. The inspector found that the 

failure to record the condition of the roof and the presence of the 

methane indicated that the preshift examination on October 11 was 

inadequate and that it constituted a violation of 30 C.F.R. §75.303. ~/ 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he shall 

include such finding in any citation given to the 

operator under this [Act]. If, during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection (c) of this section to be 

withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the 

Secretary determines that such violation has been 

abated, 

~/ Section 75.303, which restates section 303(d)(l) of the Mine Act, 

30 U.S.C. §863(d)(l), provides in part: 

(a) Within 3 hours immediately preceding the 

beginning of any shift, and before any miner in such 

shift enters the active workings of a coal mine, 

certified persons designated by the operator of the 

mine shall examine such workings and any other 

underground area of the mine designated by the 

Secretary or his authorized representative. Each 

such examiner shall examine every working section in 

such workings and shall make tests in each such 

working section for accumulations of methane with 

means approved by the Secretary for detecting 

methane, and shall ..• examine seals and doors to 

determine whether they are functioning properly; 

examine and test the roof, face, and rib conditions 

in such working section •.. and examine for such 

other hazards and violations of the mandatory health 

1616 
The inspector also found that the inadequate examination was the result 

of Quinland's unwarrantable failure to comply with section 75.303 and 

significantly and substantially contributed to a mine safety hazard. 

Accordingly, the inspector issued a second section 104(d)(l) order of 

withdrawal. 

Quinland did not contest the section 104(d)(l) orders within 30 

days of their receipt. 30 U.S.C. §815(d). In March 1985, however, when 

the Secretary proposed civil penalties for the violations, Quinland 

requested a hearing. 30 U.S.C. §815(a). In answer to the Secretary's 

civil penalty assessment petition, Quinland denied that it violated the 

cited mandatory safety standards. In addition, Quinland asserted that 

"should a violation [of section 75.200] be found to exist ... the 

unwarrantable feature of the violation is improper." 

Following an evidentiary hearing, the administrative law judge 

concluded that Quinland violated both sections 75.200 and 75.303. 

8 FMSHRC 1175 (August 1986)(ALJ). The judge credited the testimony of 

the inspector and found that the condition of the roof was inadequate to 

protect persons from roof falls. 8 FMSHRC at 1178. Regarding the 

preshift examination, the judge found that the hazardous condition of 

the roof should have been reported by the preshift examiner on 

October 11, 1984, and that the failure to do so was a violation of 

section 75.303. 8 FMSHRC 1178-79. The judge held, however, that the 

failure of the preshift examiner to note the presence of methane did not 

violate the standard because the Secretary did not prove that methane 

was present at the time of the preshift examination. 8 FMSHRC at 1179. 

The judge found that both violations were of a significant and 

substantial nature, but made no finding as to whether the violation of 

section 75.200 was due to Quinland's unwarrantable failure to comply 

with the standard. The judge assessed civil penalties of $850 for the 

violation of section 75.200 and $450 for the violation of section 

75.303. We granted Quinland 1 s petition for discretionary review. 

II. 

Section 75.200 requires that roof and ribs 11 be supported or 

otherwise controlled adequately." Liability for an alleged violation of 

this standard is resolved by reference to whether a reasonably prudent 

person, familiar with the mining industry and the protective purpose of 

the standard, would have recognized that the roof or ribs were not 

adequately supported or otherwise controlled. Specifically, the 

or safety standards, as an authorized representative 

of the Secretary may from time to time require .•.. 

Upon completing his examination, such miner examiner 

shall report the results of his examination to a 

person, designated by the operator to receive such 

reports ..• before other persons enter the 

underground areas of such mine to work in such 

shift. Each such mine examiner shall also record 

the results of his examination with ink or indelible 

pencil in a book approved by the Secretary .... 

1617 
adequacy of particular roof support must be measured against what a 

reasonably prudent person, familiar with the mining industry and the 

protective purpose of the standard, would have provided in order to meet 

the protection intended by the standard. Canon Coal Co., 9 FMSHRC 667, 

668 (April 1987). Cf. Ozark-Mahoney Co., 8 FMSHRC 190, 191-92 (February 

1986); Great Wester-;-Electric Co., 5 FMSHRC 840, 841-42 (May 1983), U.S. 

Steel Corp., 5 FMSHRC 3, 5 (January 1983); Alabama By-Products Corp.-,~-

4 FMSHRC 2128, 2129 (December 1982). Measured against this test, we 

conclude that substantial evidence supports the judge 1 s conclusion that 

the roof support in the area of the No. 7 seal was inadequate. ~/ 

In holding that Quinland violated section 75.200, the judge 

credited the testimony of the inspector that the roof support in the No. 

7 seal entry was inadequate to protect persons from roof falls. 

8 FMSHRC at 1178. The inspector's testimony regarding the conditions of 

the roof was detailed and essentially uncontradicted. The inspector 

described the roof fall, the broken posts, the damage to the No. 7 seal 

caused by the weight of the roof, and the cracks in the roof. The 

inspector stated that the roof had "dropped down approximately an inch 

•.• [and] ... was leaning on what supports they had in there and the 

seal." Tr. 26. The inspector believed that the weight on the roof 

caused the posts to break. Dust on some of the broken posts indicated 

to the inspector that the posts had been broken for perhaps a month or 

two and that the deterioration of the roof was progressive. 

We have recognized that a "judge 1 s credibility findings ... should 

not be overturned lightly." Robinette v. United Castle Coal Co., 

3 FMSHRC 803, 813 (April 1981). Accord, Bjes v. Consolidation Coal Co., 

6 FMSHRC 1411, 1418 (June 1984). Quinland's witnesses did not dispute 

the condition of the roof as described by the inspector. Indeed, they 

confirmed generally what the inspector had seen. The mine foreman 

stated that the area in which the seals were located had "bad top" in 

places. Tr. 124. Quinland's preshift examiner acknowledged that some 

broken posts had not been replaced. Tr. 200. Both agreed that some 

posts had been broken for a month or more. 

Thus, in view of the inspector 1 s detailed testimony describing the 

conditions in the area of the No. 7 seal, the mine foreman's 

acknowledgement that the roof was bad generally and the pre-shift 

examiner 1 s acknowledgement that some broken posts had not been replaced, 

we conclude that substantial evidence supports the judge 1 s finding of a 

violation of section 75.200. Further, given this evidence establishing 

that the violation of section 75.200 was visually obvious and had 

existed for a protracted time, we find that substantial evidence also 

supports the judge 1 s conclusion that Quinland was negligent in allowing 

the violation of section 75.200 to exist. 

~I Quinland 1 s assertion that the Secretary is estopped from alleging 

a violation of section 75.200 because MSHA inspectors had found 

previously that the roof in the area of the No. 7 seal was adequately 

supported is rejected. King Knob Coal Co., Inc., 3 FMSHRC 1417, 1421-22 

(June 1981); See also Burgess Mining and Construction Co., 3 FMSHRC 296, 

297 (February 1981). 
We also affirm the judge's finding that Quinland violated section 

75.303. The preshift examiner was aware of the conditions but did not 

report them. As held above, a reasonably prudent person would have 

concluded that the roof was not adequately supported. Section 75.303 

requires the preshift examiner to report hazardous conditions and 

violations of mandatory safety standards such as inadequately supported 

roof. In failing to report that condition, the preshift examiner 

violated the standard. 

III. 

The inspector found that the violation of section 75.200, as cited 

in the section 104(d)(l) order, was the result of Quinland's unwarrantable failure to comply with the mandatory standard. As noted, Quinland 

did not contest the validity of the order pursuant to section 105(d) of 

the Mine Act. 6/ Instead, in contesting the Secretary's penalty 

proposal pursu;nt to section 105(a) of the Act, Quinland contended 

specifically that the unwarrantable failure finding was improper. ZI 

QI Section 105(d) states in part: 

If, within 30 days of receipt thereof, an operator 

of a coal or other mine notifies the Secretary that 

he intends to contest the issuance or modification 

of an order issued under section 814 of this [Act], 

or citation or a notification of proposed assessment 

of a penalty issued under subsection (a) or (b) of 

this section, or the reasonableness of the length of 

abatement time fixed in a citation or modification 

thereof issued under section 814 of this [Act], or 

any miner or representative of miners notifies the 

Secretary of an intention to contest the issuance, 

modification, or termination of any order issued 

under section 814 of this (Act], or the 

reasonableness of the length of time set for 

abatement by a citation or modification thereof 

issued under section 814 of this [Act], the 

Secretary shall immediately advise the Commission of 

such notification, and the Commission shall afford 

an opportunity for a hearing (in accordance with 

section 554 of title 5, but without regard to 

subsection (a)(3) of such section), and thereafter 

shall issue an order, based on findings of fact, 

affirming, modifying, or vacating the Secretary's 

citation, order, or proposed penalty, or directing 

other appropriate relief .•.. 

30 U~S.C. § 815(d). 

ZI Section 105(a) states in part: 

If, after an inspection or investigation, the 

Secretary issues a citation or order under section 

1619 
The judge did not address this argument. On review Quinland argues that 

the judge erred in failing to rule on the merits of its challenge to the 

unwarrantable failure finding. The Secretary responds that under these 

circumstances the issue of whether a violation is caused by an 

unwarrantable failure may be considered only in a section lOS(d) 

proceeding to review a citation or order, and not in a section lOS(a) 

penalty proceeding. ~/ We hold that the validity of such findings is a 

proper subject for review in a penalty proceeding. 

The contest provisions of section 105 are an interrelated whole. 

We have consistently construed section 105 to encourage substantive 

review rather than to foreclose it. See, ~· Energy Fuels Corp., 

1 FMSHRC 299, 309 (May 1979). The statutory scheme for review set forth 

in section 105 provides for an operator's contest of citations, orders, 

and proposed assessment of civil penalties. Generally, it affords the 

operator two avenues of review. Not only may the operator immediately 

contest a citation or order within 30 days of receipt thereof, 30 U.S.C. 

§815(d), but he also may initiate a contest following the Secretary 1 s 

subsequent proposed assessment of a civil penalty within 30 days of the 

Secretary 1 s notification of the penalty proposal. 30 U.S.C. § 

[104] of this [Act], he shall, within a reasonable 

time after the termination of such inspection or 

investigation, notify the operator by certified mail 

of the civil penalty proposed to be assessed under 

section [llO(a)] of this [Act] for the violation 

cited and that the operator has 30 days within which 

to notify the Secretary that he wishes to contest 

the citation or proposed assessment of penalty. A 

copy of such notification shall be sent by mail to 

the representative of miners in such mine. If, 

within 30 days from the receipt of the notification 

issued by the Secretary, the operator fails to 

notify the Secretary that he intends to contest the 

citation or the proposed assessment of penalty and 

no notice is filed by any miner or representative of 

miners under subsection (d) of this section within 

such time, the citation and the proposed assessment 

of penalty shall be deemed a final order of the 

Commission and not subject to review by any court or 

agency .... 

30 U.S.C. § 815(a), 

~! Several unreviewed decisions of various Commission administrative 

law judges reflect disagreement on this issue. Two decisions hold that 

the merits of an unwarrantable failure finding may be reviewed in a 

civil penalty proceeding. C. F. & I. Steel Corp., 4 FMSHRC 1776, 1786, 

(September 1982) (ALJ Carlson); Price River Coal Co., 3 FMSHRC 1766, 

1771-73 (October 1983) (ALJ Vail). Three decisions reach the opposite 

conclusion. Turner Brothers, Inc., 6 FMSHRC 2125, 2130 (September 1980) 

(ALJ Koutras); Clinchfield Coal Co., 2 FMSHRC 290, 292 (February 1980) 

(ALJ Moore); Windsor Power House Coal Co., 6 FMSHRC 1739, 1740-41 (July 

1980) (ALJ Melick). 

1620 
815(a). 9/ 

The interrelationship between a contest proceeding and a civil 

penalty proceeding has, in the past, been a source of confusion and 

dispute over the issues that may be raised properly in each proceeding 

and over their preclusive effect once raised. In resolving these 

arguments we have afforded a wide latitude for review and eschewed 

preclusion. For example, in Energy Fuels, supra, we rejected the 

Secretary1 s argument that review of a violation and special findings 

contained in an abated citation is available only in a civil penalty 

proceeding. We found that the language of the Act did not so limit 

review and that the purposes of the Act and the interests of those 

subject to it are best served by permitting an immediate contest. 1 

FMSHRC at 309. 10/ Here, the Secretary argues that failure to seek an 

immediate contest of the order containing the alleged violation bars the 

operator from challenging the validity of special findings in a 

subsequent civil penalty proceeding. We reject once again a restrictive 

interpretation of section 105. Because under the Mine Act a special 

finding is a critical consideration in evaluating the nature of the 

violation alleged and bears upon the appropriate penalty to be assessed, 

we conclude that the Act does not preclude the review of special 

findings in a civil penalty proceeding and that the purpose of the Act 

and the interests of those subject to it are best served by permitting 

review. 

There is no dispute that the fact of violation may be placed in 

issue by the operator in a civil penalty proceeding regardless of 

whether the operator has availed itself of the opportunity to contest 

the citation or order in which the allegation of violation is contained. 

The Commission also has held that the procedural propriety of the 

issuance of a withdrawal order does not affect the allegation of a 

violation contained in the order. Island Creek Coal Co., 2 FMSHRC 279, 

280 (February 1980); Van Mulvehill Coal Co., 2 FMSHRC 283, 284 (February 

21 The procedures followed by the Secretary in proposing penalties 

for violations usually result in an operator 1 s receipt of the 

Secretary 1 s notice of proposed penalty at a time substantially after the 

expiration of the 30-day period within which the operator may contest a 

citation or order. 

10/ The special findings of "unwarrantable failure 11 and "significant 

and substantial 0 are found in sections 104(d) and 104(e) of the Act. 30 

U.S.C. §§814(d), 814(e). Under section 104(d), an inspector's finding 

that a violation is the result of "unwarrantable failure" to comply with 

a mandatory standard and is "significant and substantial" leads to the 

issuance of a section 104(d) citation, and subsequent findings of 

unwarrantable failure may lead to a "chain" of withdrawal orders until 

an inspection of the mine discloses no further violations based on 

unwarrantable failure. 30 U.S.C. §§814(d)(l) & (2). Under section 

l04(e) where an operator has been given written notice by the Secretary 

that a pattern of "significant and substantial" violations exists, 

further significant and substantial violations may lead to a similar 11 chain11 of withdrawal orders. 30 U.S.C. §814(e). 

1621 
1980). The allegation of violation survives and if proven must be 

subject to the assessment of a civil penalty. 30 U.S.C. §820(a); Tazco, 

Inc., 3 FMSHRC 1895, 1896-98 (August 1981); See also Co-op Mining Co., 2 

FMSHRC 3475, 3475-76 (December 1980). Similarly, since the alleged 

violation survives, findings incidental to the violation survive as 

well. 

It is apparent from the language of section 104(d) that special 

findings are made incident to the finding of violation. In addition to 

the finding of violation, the inspector must find that "such violation" 

is of a significant and substantial nature and that "such violation" is 

caused by the operator's unwarrantable fail~re to comply with the cited 

standard. 30 U.S.C. §814(d)(l) (emphasis added). As the Commission has 

held, these findings fully describe the nature and the characteristics 

of the violation. Consolidation Coal Co., 6 FMSHRC 189, 192 (February 

1984). 

The allegation of a violation contained in a citation or order is 

an initial step in the enforcement of the Mine Act and of its mandatory 

health and safety standards. The civil penalty assessed for the 

violation must reflect the surrounding facts and correlate with the 

nature of the violation through application of the statutory penalty 

criteria. 30 U.S.C. §820(i) .. Accordingly, in assessing a penalty, 

consideration of all incidents of a violation, including the special 

findings, is appropriate. The Commission has stated: 

The validity of the allegation of violation and of 

any special findings made in connection with the 

alleged violation, all bear upon the appropriate 

penalty to be proposed by the Secretary prior to 

adjudication and to be assessed by the Commission if 

a violation is ultimately found ••.. 

Old Ben Coal Coo, 7 FMSHRC 205 207-08 (February 1985)(emphasis added), 

In previous cases where the Secretary has charged an operator with 

a violation in a citation issued pursuant to section 104(a) of the Mine 

Act, 30 U.S.C. §814(a), and has made special findings in the citation, 

the validity of the special finding at issue has been addressed in the 

penalty proceedings albeit without specific discussion of the issue 

addressed here. Cement Division, National Gypsum Company, 3 FMSHRC 822 

(April 1981)~ See also Consolidation Coal Co., supra, 6 FMSHRC at 191-

192. The Commission also has recognized that the statutory penalty 

criterion of negligence and the special finding of unwarrantable 

failure, although not identical, are based frequently upon the same or 

similar factual circumstances. Black Diamond Coal Co, 7 FMSHRC 1117, 

1122 (August 1985). 11./ In addition, the Secretary 1 s regulatory 

procedures governing his proposed assessment of civil penalties reflect 

1JJ In like manner, the 11 gravity11 penalty criteria and a special 

finding of "significant and substantial, 11 although not identical, are 

based frequently upon the same or similar factual circumstances. 30 

u.s.c. §§820(i), 814(d). 
the interrelationship between special findings and the appropriate 

penalty to be assessed. 30 C.F.R. §100.5(b) provides in part that 11MSHA 

may elect to waive the regular assessment formula (§ 100.3) or the 

single assessment provision (§100.4) if the agency determines that 

conditions surrounding the violation warrant special assessment}' The 

regulation further provides that 11 (a]ccordingly, the following 

categories [of violations] will be reviewed individually to determine 

whether a special assessment is appropriate: ... (b) Unwarrantable 

failure to comply with mandatory health and safety standards .... 11 30 

C.F.R. §100.5(b). Because of the interdependent nature of special 

findings and the penalty assessment provisions of the Mine Act, it is 

appropriate to allow contest of such findings in a civil penalty 

proceeding and not to preclude this challenge because the operator 

failed to contest the validity of the order in which the findings are 

contained within 30 days of its issuance. 

Most mine operators who immediately challenge a citation or order 

containing a special finding are concerned with the withdrawal 

consequences of an order or its 11 chain11 implications. Conversely, those 

that elect to forego the immediate contest of an order that includes 

special findings will not be concerned primarily with such consequences. 

We expect that by delaying contest of an order and the special findings 

contained therein until the civil penalty proceeding is instituted, an 

operator's concern will be the deletion of the special findings and a 

reduction of the civil penalty. Indeed, this is the relief requested in 

the present case. We recognize that if a special finding is vacated by 

a judge, in some instances it may be appropriate for the judge to order 

modification or vacation of the order in which the special finding is 

contained. Such a circumstance most likely would arise when such 

modification or vacation would bear upon pending litigation involving a 

"chain" of which the order was a part. See generally Consolidation Coal 

Co., 4 FMSHRG 1791, 1793-95 (October 1982). This case does not require 

discussion of all conceivable collateral effects that might arise from 

the vacation or modification of an order containing special findings. 

Resolution of such questions can await cases in which they are 

specifically presented. 12/ Whatever the collateral effects may be, 

they arise from the right to review provided to operators by section 105 

of the Act. 

We therefore conclude that the judge erred in failing to consider 

Quinland 1 s challenge to the unwarrantable failure finding associated 

with the violation of section 75.200. 

12/ We note that the Secretary has the power to propose more quickly a 

penalty for citations and orders and thus lessen the chances for ripple 

effects that may result from vacation of the underlying order. 

1623 
IV. 

The final issue raised by the operator is whether the judge erred 

in considering copies of Quinland 1 s preshift examination reports 

submitted to the judge by counsel for the Secretary following briefing 

of the case. The judge requested summaries of the reports in order to 

evaluate the veracity of Quinland 1 s preshift examiner with respect to 

the frequency of his reports of hazardous conditions. The information 

was relevant and material to the issue of credibility. In submitting 

copies of the reports themselves, the Secretary's counsel failed to 

follow literally the procedure ordered by the judge. However, 

acceptance of the copies did not prejudice Quinland because they 

confirmed the examiner's statement that he frequently noted hazardous 

conditions during his preshift examinations. Tr. 205-06. Furthermore, 

the judge did not rely on the reports in concluding that Quinland 

violated section 75.303. Consequently, even if acceptance of the 

reports was erroneous, the error was harmless. 

1624 
v. 

For the foregoing reasons, we hold that substantial evidence 

supports the findings of the judge that Quinland violated section 75.200 

and section 75.303 and that the violation of section 75.200 was the 

result of Quinland 1 s negligence. We further hold that the judge erred 

in failing to address whether the violation of section 75.200 was the 

result of Quinland 1 s unwarrantable failure. Finally, we hold that the 

operator was not prejudiced by the judge's acceptance of copies of 

preshift examination reports. Accordingly, the contested findings of 

violation and negligence are affirmed, as is the civil penalty 

assessment for the violation of section 75.303. The matter is remanded 

to the judge to determine whether the violation of section 75.200 was 

the result of Quinland 1 s unwarrantable failure to comply with that 

mandatory safety standard and for such further proceedings as are then 

appropriate. 

~~ 

.. Richard ~t'~AA~ V. Backley, C~r ~ 

~oyce 

b1u_,q, A. Doyle, Commissio~ ~~0 

ames A. Lastowka, Commissioner 

~~~ L. Clair Nelson, Commissioner 

1625 
Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Robert D. Cline, Jr., Esq. 

Shaffer & Shaffer 

330 State Street 

Madison, West Virginia 25130 

William Stover, Esq. 

41 Eagles Road 

Beckley, West Virginia 25801 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review CommisE?ion 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1626 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 30, 1987 

ODELL MAGGARD 

v. 

CHANEY CREEK COAL CORPORATION 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of ODELL MAGGARD 

v. 

DOLLAR BRANCH COAL CORPORATION 

and CHANEY CREEK COAL COMPANY 

Docket No. KENT 86-1-D 

Docket No. KENT 86-51-D 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

On August 25, 1987, the Commission issued its decision in this 

matter. On September 15, 1987, the Commission received from counsel for 

respondents a Motion for Reconsideration and a Motion to Amend Petition 

for Discretionary Review. Oppositions to both motions have been 

received from complainant Odell Maggard and from the Secretary of Labor. 

The operators request the Commission to reconsider its denial of their 

motion seeking dismissal o.f Dollar Branch Coal Corporation 

Branch") as a party on the asserted grounds that Dollar Branch 

had no direct employment relationship with Maggard. Upon consideration 

of the motions and the oppositions, the motions are denied. 

We previously ruled that we were barred as a matter of law by the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. 

(1982), from considering this issue because it was not included in the 

operators' petition for discretionary review. Odell Maggard v. Chaney 

Creek Coal Corporation, etc., 9 FMSHRC ~-'Nos. KENT 86-1, etc., slip 

op. at 2 n. 2 (August 25, 1987). We adhere to that ruling. We note 

that the operators also failed to raise this issue before the Connnission' s administrative iaw judge, and we conclude that counsel for the 

1627 
operators has failed to show why the facts asserted by Dollar Branch 

relating to its involvement in this case cculd not have been ascertained 

and acted upon in a timely manner. 

Richard V. Backley, 

.·~ 

Commissioner 

1628 
Distribution 

Thomas C. Marks, Esq. 

Miller, Griffin & Marks 

Suite 700, Security Trust Bldg. 

Lexington, Kentucky 40507 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

1629 
1630 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

GARRY GOFF 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 19, 1986 

Docket No. LAKE 84-86-D 

YOUGHIOGHENY & OHIO COAJ, COMPANY 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding concerns a discrimination complaint filed by 

Garry Goff pursuant to the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (1982) (the "Act"). Following a previous 

determination by--rhe Commission that Goff's complaint stated a cause 

of action under section 105(c)(l) of the Act, the matter was remanded 

to Commission Administrative Law Judge Melick. The purpose of the 

remand was to determine whether Goff was discriminatorily discharged by 

the Youghiogheny and Ohio Coal Company ("Y&O") because he was "the subject 

of medical evaluation and potential transfer" under the standards set 

forth in 30 C.F.R. Part 90. 1/ 7 FMSHRC 1776 (November 1985). On remand, 

the judge examined that issue and found that Goff was not discharged in 

violation of section 105(c) (I). 2/ 8 FMSHRC 741 (May 1986) (ALJ). The 

Commission granted Goff's petition for discretionary review. For the 

reasons that follow, we affirm. 

}:_/ Under 30 C.F.R. Part 90, a miner determined by the Secretary of 

Health and Human Services to have evidence of the development of pneumoconiosis is given the opportunity to work without loss of pay in an area 

of the mine where the average concentration of respirable dust in the 

mine atmosphere during each shift to which that miner is exposed is 

continuously maintained at or below 1.0 milligrams per cubic meter of 

air ( 11mg/m3 n). 

2/ Section lOS(c)(l) of the Act provides in part as follows: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination against 

or otherwise interfere with the exercise of the statutory rights of 

any miner .•. in any coal or other mine .•• because such miner ..• 

is the subject of medical evaluations and potential transfer under 

a standard published pursuant to section [lOlJ of this [Act] •..• 

30 U.S.C. § 815(c)(l). 

1860 (Vol. 8, No. 12) reprint 
This proceeding began when Goff filed a complaint of discrimination 

with the Department of Labor's Mine Safety and Health Administration 

("MSHA"). Following investigation of the complaint, MSHA determined 

that a violation of section 105(c)(l) of the Act had not occurred. Goff 

then filed a complaint in his own behalf with this independent Commission 

alleging that his discharge violated the Act. Y&O moved to dismiss the 

complaint for failure to state a cause of action. The administrative 

law judge concluded that Goff's complaint was based on an allegation 

that Goff was discriminated against because he suffers from Rlack Lung 

(pneumoconiosis) and that such a complaint could be resolved only under 

section 428 of the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. 

(1982)("BLBA"). Therefore, the judge granted the motion to dismiss. 

6 FMSHRC 2055 (August 1984). On review, we reversed the judge's decision, 

holding that a miner may state a cause of action under section lOS(c)(l) 

of the Mine Act by alleging discrimination based upon the miner being 

"the subject of medical evaluations and potential transfer" under Part 

90 and remanded the proceeding to the judge to determine whether Goff 

had been discharged unlawfully. 

Our task on review is to determine whether the judge properly 

concluded that Goff was not discriminatorily discharged in violation of 

section lOS(c)(l) of the Act. A number of collateral issues were raised 

by the complainant which lie outside the scope of our review and which 

we do not address; for example, whether Goff in fact had pneumoconiosis, 

which of the various doctors seen by Goff correctly diagnosed his medical 

condition, and whether Y&O's leave policies were reasonable. Further, 

our review in no way addresses any separate remedy Goff may be seeking 

under section 428 of the BLBA. 30 U.S.C. § 938. 3/ 

I. 

Goff worked as a supervisory foreman for Y&O from September 1976 

until January 20, 1984. In August 1982, while employed at Y&O's Allison 

Mine, Goff's doctor diagnosed him as having pneumoconiosis and Goff 

thereafter was assigned to work primarily outside the mine" In October 

1983, Goff again was diagnosed by his doctor as having pneumoconiosis. 

3/ The BLBA is administered by the Employment Standards Administration 

("ESA") of the Department of Labor" The Department of Labor is charged 

with the duty under both the Mine Act and the ELBA to investigate pneumoconiosis-related discrimination complaints. Accordingly, the Department's 

MSHA and its ESA have entered into a Memorandum of Understanding ("MOU") 

to coordinate their investigations and to clarify their jurisdictio~1 and 

procedures. 44 Fed. Rego 75952 (Dec. 21, 1979)" 

Under the MOU, ESA makes the determination as to whether a violation 

of section 428 of the ELBA has occurred and MSHA makes a determinatton 

whether a violation of section lOS(c) of the Mine Act has occurred. If 

the aggrieved person proceeds with complaints under both sections, MSHA 

proceeds first with the section 105(c) complaint and ESA may then proceed 

with the section 428 complaint. The MOU reflects that the two sections 

may provide different remedies. 

1861 (reprint) 
In January 1984 Y&O closed the Allison Mine and Goff was transferred 

to an underground job as a labor foreman at Y&O's Nelms Mine, effective 

January 9, 1984. As a labor foreman Goff would work primarily in the 

less dusty outby areas but would work near or at the face when necessary. 

Upon reporting to work on January 9, 1984, Goff gave Charles Wurschum, 

the Nelms mine manager, copies of slips from his doctor stating that he 

had pneumoconiosis and should not work underground. On January 12, 

1984, •}off called in sick to John Ronevich, his immediate supervisor. 

Goff went to his doctor and was diagnosed as having bronchitis and 

advised not to return to work for two weeks or until he recovered. 

After Goff relayed this advice to Ronevich, he was requested by Y&O to 

undergo a medical examination at the Wheeling Park Hospital. The next 

day Goff reported for that examination. He was given a battery of 

medical tests, had chest x-rays taken, and was examined by a certified 

"B" reader of chest x-rays. 4/ The results of his examination were not 

immediately available. l._/ -

On January 14, 1984, the day after his medical examination at the 

Wheeling Park Hospital, Goff mailed a Part 90 application and chest 

x-rays to MSHA. These x-rays had been taken at a local clinic in October 

1983. Goff's application requested a determination by MSHA of his 

eligibility for participation in the Part 90 transfer program. 

On January 16, 1984, Goff wrote a letter to Donald Weber, Y&O's 

director of personnel, calling attention to his chest x-rays of August 

1982 and October 1983 and stating that he was unable to perform his 

duties as a labor foreman due to pneumoconiosis and that he should not 

be working underground in the dust. Goff further stated that until he 

had a job out of the dust, he would be off work under doctor's advice, 

but was willing to return to work with his doctor's release. The letter 

made no reference to Part 90 status. On January 19, 1984, Goff met with 

Weber and Wurschum and was advised that review of the medical report 

from Wheeling Park Hospital indicated that there was nothing preventing 

Goff from working underground as a supervisor, and that if he did not 

4/ A 11B11 reader is a person possessing the highest qualifications to 

read chest x-rays for evidence of pneumoconiosis by the National Institute 

of Occupational Safety and Health, 

5 Goff states that while awaiting his examination, he was asked by a 

nurse whether he wanted to complete a Part 90 application and have the 

application and his x-rays sent to MSHA fo~ a Part 90 status determination, 

Goff states that he completed the application but that the application 

and the Wheeling Park Hospital x-rays were not sent to MSHA. Tr. 

196-97, 200, On review, Goff alleges that Y&O prevented the mailing of 

the application and the x-rays. There is, however, no evidence in the 

record which supports even an'inference to support this allegation. 

1862 (reprint) 
return to work the next day, he would be discharged. ~/ Goff testified 

that he told Weber and Wurschum that he would be unable to work until 

his doctor authorized his return. Goff did not report to work on January 20, 

1984. On January 21, he received a letter from Y&O dated the previous 

day informing him that he was discharged for failing to report to work. 

The letter stated that Goff's "allegation of not being able to work has 

not been documented by medical certification" and noted that the results 

of Goff's medical examination on January 13 did not intlicate any reason 

that would prevent Goff from working underground. On January 30, 1984, 

Goff took a medical release dated January 24, 1984, to Weber, who indicated 

that Y&O was not hiring. 

On July 2, 1984, Goff received a letter from HSHA stating that 

based on the chest x-ray reports he had sent to MSHA on January 14, 

pneumoconiosis was indicated and he was eligible under Part 90 to work 

in an area of the mine with an average concentration of respirable dust 

at or below 1.0 mg/m3 of air. On August 8, 1984, however, Goff was further 

advised by MSHA that because he no longer was employed at an unrlerground 

coal mine, ~art 90 status was not applicable to him. 

II. 

In concluding that Y&O did not discharge Goff unlawfully, the judge 

noted that for Goff to establish a violation of section lOS(c)(l}, Goff 

had to prove that he engaged in protected activity and that his discharge 

was motivated in any part by the protected activity. 8 FMSHRC at 743. 

(Citing to Secretary on behalf of Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786, 2799 (October 1980), rev'd on other grounds sub. nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir, 1981).) 

With respect to the motivational issue, the judge indicated that there 

was no evidence that any Y&O personnel knew, prior to Goff's discharge, 

that he had filed a Part 90 application. 8 FMSHRC at 743-44. In addition, 

the judge concluded that Y&O officials could reasonably have given 

greater weight to the medical evidence they obtained from the Wheeling 

Park Hospital medical evaluation of Goff, which indicated that Goff did 

not have pneumoconiosis and was capable of working. 8 FHSHRC at 744. 

6/ Dr, Elliott stated in his medical report: 

Chest x-ray was within normal limits, No evidence of pneumoconiosis was seen, 

There was no evidence of any significant respiratory or 

pulmonary disease physiologically. 

I find no medical reason at this time that would prevent ~r. 

Goff from being able to work underground as a supervisor. 

8 FMSHRC at 742-43. 

1863 (reprint) 
Finally, the judge found that even if Y&O had known that Goff 

applied for Part 90 status, Y&O would not have been motivated to discharge 

him on that basis because Part 90 status would not have affected Goff's 

work assignment as a labor foreman. 8 FMSHRC at 744. Under Part 90, a 

qualifying miner is entitled only to transfer to a dust reduced area where 

concentrations of respirable dust are at or below 1.0 mg/m3 of air, 

and the judge noted that Wurschum believed the dust concentrations in 

the entire Nelms Mine were less than 1.0 mg/m3 of air. The judge further 

noted that in 1984 the average respirable dust concentration in the 

outby areas of the mine, where Goff ordinarily would have worked, was 

0.55 mg/m3 of air and that even near the face the average concentration 

was less than 1. 0 mg/m3 of air. 8 FMSHRC at 244: The judge concluded 

that Goff had "failed in his burden of proving that Y&O was motivated in 

any part in discharging him because he was 'the subject of medical 

evaluation and potential transfer' under Part 90." 8 FMSHRC at 745. 

III. 

For the reasons that follow, we affirm the judge's conclusion that 

Goff's discharge did not violate the Act. A complaining miner establishes 

a prima facie case of prohibited discrimination under the Mine Act by 

proving that he engaged in protected activity and that the adverse 

action complained of was motivated in any part by that activity. Pasula, 

2 FMSHRC at 2797-2800; Secretary on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity occurred 

or that the adverse action was not motivated in any part by protected 

activity. Robinette, 3 FMSHRC at 818 n. 20. See also Donovan v. 

Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. 

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the 

Commission's Pasula-Robinette test). 

The medical examinations and procedures to which Goff was subjected 

in this case were intended to determine whether he suffered from pneumoconiosis, an initial step in obtaining Part 90 status, and as such, were 

protected activities. Further, Goff engaged in protected activity in 

applying to MSHA for a determination of his eligibility for Part 90 

status. Like the medical evaluations, the application process is a 

necessary preliminary step and comes within the statutory protection 

afforded miners who are the "subject of medical evaluations and potential 

transfer" under Part 90. 

We conclude, however, that although these events constituted protected 

activities, Goff did not establish that Y&O was motivated i'l any part by 

knowledge of such protected activities. 

Direct evidence of actual discriminatory motive is rare. Short of 

such evidence, illegal motive may be established if the facts support a 

reasonable inference of discriminatory intent. Secretary on behalf of 

Chacon v .. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-11(November1981), 

rev'd on other grounds sub. nom. Donovan v. Phelps Dodge Corp., 709 

1864 (reprint) 
F.2d 51 (D.C. Cir. 1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 

1398-99 (June 1984). The present record contains no direct evidence 

that Y&O was illegally motivated, nor does it support a reasonable 

inference of discriminatory intent. 

In examining the record for instances in which discriminatory 

intent could be inferred, we note that, with respect to Goff's medical 

evaluations of August 1982 and October 1983, Y&O did not discharge Goff 

because of these evaluations. To the contrary, the record indicates 

that Y&O accommodated Goff by assigning him work primarily on the surface. 

Not until the Allison Mine closed in early January 1984, approximately a 

year and a half after Goff's first diagnosis of pneumoconiosis, was he 

transferred to underground work. 21 

Similarly, no inference of discriminatory intent can be inferred 

from Y&O's response to Goff's medical evaluation of January 1984. 

Substantial evidence supports the judge's conclusion that Y&O reasonably 

relied upon Wheeling Park Hospital's January 1984 evaluation of Goff 

which, based upon specific medical tests and x-rays, indicated that Goff 

was fit to return to work. 

With respect to Goff's Part 90 application, we affirm the judge's 

finding that Y&O did not know prior to his discharge that Goff had filed 

a Part 90 application. There is no evidence that Goff told supervisory 

personnel at Y&O that he had applied or was going to apply for Part 90 

status. Goff states that he told mine manager Wurschum on January 1984, 

that he wanted to take one or two days off to "get x-rays taken" to 

settle the situation concerning his pneumoconiosis. Goff Dep. 58, Tr. 

188. According to Wurschum, Goff asked only whether he was going to be 

allowed to take some days off and Goff said nothing about having x-rays 

taken or applying for Part 90 status. Tr. 401. We note that Goff 

actually filed his application on January 14, 1984. After that date 

Goff easily could have notified Y&O personnel that he had filed for Part 

90 status (for example: in his January 16, 1984, letter to Weber or at 

the January 19, 1984, meeting). Goff did not do so, We hold that the 

record therefore supports the judge's finding that there is no irevidence 

that any Y&O personnel knew, prior to his discharge, that [Goff] had 

filed a Part 90 application. 11 8 FMSHRC at 744, 

7/ Goff also argues that Y&O interfered with his section 105(c)(l) 

rights by failing to report his illness as required by 30 C.F.R, Part 50 

when Y&O first became aware that he had been diagnosed with pneumoconiosis. 

We do not agree. Under Part 50, an operator is required to report 

illness, including pneumoconiosis, to the appropriate MSHA District 

Office and to the MSHA analysis center in Denver. 30 C.F.R. §§ 50.20 

and 50.20-6. Failure to report as required may be a violation of Part 

50, but it does not constitute discrimination. The purpose of reporting 

a miner's illness under Part 50 is to gather occupational illness statistics, 

not to effectuate the rights of medical evaluation and transfer inherent 

in Part 90 and protected by section lOS(c)(l). 

1865 (reprint) 
Moreover, substantial evidence supports the judge's conclusion that 

even if Y&O had known that Goff applied for Part 90 status, it is not 

reasonable to believe it would have been motivated to discharge him on 

that basis because Part 90 status would not have affected Goff's work 

assignment. The Nelms Mine manager testified that during 1984 the 

average concentration of respirable dust in areas outby the faces was 

0.55 mg/ms of air, and the average concentration in inby areas was less 

than 1.0 mg/ms of air. That testimony was not disputed. 8/ Nevertheless, 

Goff stated in his letter to Weber that on the advice of his doctor, he 

would be off work until he had a dust free job. Neither the Act nor Part 

90 gives a miner with evidence of the development of pneumoconiosis the 

right to work in a mining environment that is totally free of respirable 

dust. Rather, section 203(b)(2) of the Act, 30 U.S.C. § 843(b)(2), and 

30 C.F.R § 90.3(a) give a miner with evidence of the development of 

pneumoconiosis the right to exercise an option to transfer to an area of 

the mine with an average respirable dust concentration at or below 1.0 

mg/ms of air, not to cease work altogether. 

There is no proof in this record that Goff would have encountered 

excessive and impermissible respirable dust concentrations in his underground assignment. As previously indicated, there is persuasive evidence 

that during 1984 the average concentration of respirable dust in areas 

outby the faces was 0.55 mg/ms of air and the average concentration in 

inby areas was less than 1.0 mg/ms of air. 

By refusing to report to work until he was assigned a dust-free 

job, Goff acted beyond the purview of section 203 of the Act and 30 

C.F.R. Part 90. As such, his work refusal was not protected by the 

statute. 

8/ Although the mine manager 1 s testimony was based on the results of 

respirable dust samples taken pursuant to 30 C.F.R. Part 70, the results 

are indicative of the respirable dust concentrations that Goff could 

expect to encounter. They reflect average concentrations of respirable 

dust in areas where Goff ordinarily would be expected to work. Tr. 355-56. 

1866 (reprint) 
We find that Goff did not establish that the protected activity, 

being "the subject of medical evaluation and potential transfer", in any 

way motivated Y&O to discharge him. Rather, Y&O discharged Goff because 

he refused to report for work as ordered. We therefore affirm the 

judge's dismissal of Goff's complaint. 

Distribution 

Garry Goff 

57920 Rocky Fork Road 

Jacobsburg, Ohio 43933 

Gerald P. Duff, Esq. 

Hanlon, Duff & Paleudis Co., LPA 

46770 National Road West 

P.O. Box 77 

St. Clairsville, Ohio 43950 

Richard V. Backley, Commission 

/l. ~ A1 //' 

//!'--<-~ (/·,, d~.Cg J~ A: Doyle, CommissiOr 

Administrative Law Judge Gary Melick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1867 (reprint) 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

333 W, COLFAX AVENUE, sum -'00 

DENVER. COLORADO 80204 SEP 8 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

GEORGE A. JONES, 

Complainant 

v. 

DEE GOLD MINING COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 85-131-DM 

MD 85-11 

Dee Gold Mine 

DECISION 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Complainant; 

Jay W. Luther, Esq., Chickering & Gregory, San 

Francisco, California, 

for Respondent. 

Before: Judge Lasher 

This proceeding involves a discrimination complaint brought 

by the Secretary of Labor on behalf of George A. Jones (herein 

'

6

Complainant") " The Secretary's complaint, as amended, alleges 

that Complainant was discharged (laid off) for engaging in protected safety activities in violation of Section 105(c) of the 

Feder _Mine Safety and Health Act of 1977v 30 UoSoC. § 815(c) 

( 19 8 2) o.:/ 

The Secretary contends that Complainant Jones, a maintenance 

employee in Respondent 1 s ball mill at the time of his dischargef 

was terminated because of protected safety activities occurring 

primarily in the last month of his employment. Respondent 

contends that as a result of a "Feasibility Capital Cost Study 11 

(herein referred to as the Kilburn Report) a reduction-in-force 

(herein RIF and layoff) was called for and planned, and Complainant, because of inferior work performance ("slow workman 

ship", "productivity" and other problems) was one of two 

1/ The hearing was held during a period of four days, October 

21, 22, 23, and 24, 1986. For each day of hearing there is a 

separate transcript beginning with page one. Accordingly, 

transcript citations will be prefac~d wiLh »1 11 , "II", "III", and 

"IV", respectively, in this manner "I-T __ ", "II-T. __ ", etc. 

1631 
employees who were properly laid off in the RIF to bring the mill 

maintenance crew down from a complement of 6 employees to 4 as 

called for by the Kilburn Report (III-T. 25-32)0 

Untimely Filing of the Secretary's Complaint. In raising this 

threshold issue, Respondent contends that there was "a delay of 5 

months beyond the statutory maximum. 11 

A chronology of most pertinent events was the subject of a 

stipulation between the parties (Court F.x. l; I-T. 42-45). Based 

thereon and other evidence the following sequence is found to 

have occurred. 

October 11, 1984 Complainant was terminated (I-T. 45) 

October 12F 1984 Complainant filed "an informal complaint" 

with MSHAo Although not critical to this 

issue, I find that this filing complies 

with the 60 day filing requirement for 

individual miners contained in section 

105(c) of the Act, even though such complaint is not filed on a particular 

standard form provided by the Secretary 

of Labor. 

November 13, 1984 Complainant filed a "formal complaint" 

with MSHA on an MSHA form. 

December Su 1984 The Secretary (MSHA) commenced its investigation of the complaint. 

April 24, 1985 The Secretary's written determination 

that a violation occurred was issued. 

2., 1985 The Secretaryus Complaint was filed- according to the date stamp thereof in the 

official Commission file folder" The 

parties' stipulation that such was filed 

on or about June 25, 1985, is rejected 

in view of the more precise information 

reflected in the file" 

It is clear that Complainant Jones was prompt with the 

filing of his complaint with the Secretaryo Respondent 1 s bone of 

contention is the Secretary's delayo In Secretary Vo 4-A Coal 

Companyv Incov 8 FMSHRC 905 (1986)v the Commission delineated the 

various obligations of the Secretary in processing discrimination complaints~ 

~The Mine Act requires the Secretary to proceed with 

expedition in investigating and prosecuting a miner's 

discrimination complaint. The Secretary is required to act 

within the following time frames: (1) The investigation of a 

miner's complaint "shall commence within 15 days" of receipt 

of the miner's complaint (30 u.s.c. § 815(c)(2)); (2) the 

1632 
Secretary "shall notify" the miner, in writing, of his 

determination as to whether a violation of section 105(c)(l) 

of the Mine Act has occurred "[w)ithin 90 days" of receipt 

of the miner's complaint (30 u.s.c. § 815(c)(3)); and (3) 

if the Secretary determines that there has been a violation 

of the Act, "he shall immediately file a complaint with the 

Commission." 30 U.S.C. § 815(c)(2). (Emphasis added 

throughout.) Finally, section 105(c){3) of the Act 

specifically states, "Proceedings under this section shall 

be expedited by the Secretary and _the Commission." 30 u.s.c. 

§ 815(c)(3). 

While the language of section 105(c) leaves no doubt that 

Congress intended these directives to be followed by the 

Secretary, the pertinent legislative history nevertheless 

indicates that these time frames are not jurisdictional 

xxx xxx xxx xxx 

" 

Related passages of legislative history make equally clear, 

however, that Congress was well aware of the due process 

problems that may be caused by the prosecution of stale 

claims. See Legis. Hist. at 624 (discussion of 60-day time 

limit for the filing of miner's discrimination complaint 

with the Secretary). The fair hearing process envisioned by 

the Mine Act does not allow us to ignore serious delay by 

the Secretary in filing a discrimination complaint if such 

delay prejudicially deprives a respondent of a meaningful 

opportunity to defend against the claim. 

Accordingly, we hold that the Secretary is to make his 

determination of whether a violation occurred within 90 days 

of the filing of the miner's complaint and is to file his 

complaint on the miner 1 s behalf with the Commission 

"immediately'' thereafter -- i.e., within 30 days of his 

determination that a violati'Oi10f section 105(c)(l) occurred" 

If the Secretaryas complaint is late-filed, it is subject to 

dismissal if the operator demonstrates material legal 

prejudice attributable to the delay. 

"Applying these principles to the present record, there is 

no question that the Secretary seriously delayed in filing 

the complaint. Nevertheless, the record before the judge 

did not establish that the Secretary's delay prejudiced 4-A. 

In the absence of this requisite foundation, the judge erred 

in granting 4-A's motion to dismiss.n 

Respondent 1 s basis for dismissal of the complaint is set 

forth at pages 38 and 39 of its post-hearing brief: 

"In a great many cases, a delay of 5 months beyond the 

statutory maximum would not cause prejudice. This case, however, 

is different because of the critical nature of precise times. 

Thus, among the facts that have been helpful to Dee Gold's 

defense have been the time of the decision to layoff Mr. Jones1 

1633 
the times at which certain incidents, particularly the hydrostroke feeder and AR incidents were committed by Mr. Jones in 

relation to the time that Mr. Nameth was placed in charge of mill 

maintenance; the time at which it was decided that layoffs would 

occur at all; the time at which the ball mill was in the process 

of being repaired; (to a minor extent) the time at which Mr. 

Nameth announced at the meeting of October 9 that layoffs were to 

occur: and the dates upon which the events in the Jensen 

memorandum took place. These are likely to be contested in one 

fashion or another in the Government's brief, due to the 

occasionally ambiguous and uncertain testimony of various 

witnesses on the subject of precise dates, or timing. Where all 

the pertinent dates in a case occur in a relatively short period, 

it is much easier for prejudice to occur, and Respondent would 

submit that it has occurred in this case. Had this Complaint 

been brought 4 to 6 months earlier, recollections could have been 

more quickly canvassed, and a better record prepared." 

It is concluded that Respondent has not established that the 

Secretary's delay prejudicially deprived it of a meaningful 

opportunity to defend itself in this matter. There is no 

allegation of any specific prejudice it sustained in pretrial 

preparation or in the trial of this matter. The general 

allegation that the memory of witnesses may have been impaired by 

the delay is insufficient to meet the burden of establishing a 

material legal prejudice; there is no articulation of the process 

by which Respondent was prejudiced. It is also noted that the 

delay of approximately 5 1/2 months here is significantly less 

that that - 2 years - involved in 4-A Coal Company, Inc., supra. 

There being no basis in argument or in the record to conclude 

that Respondent was materially prejudiced, its contention that 

the complaint should be dismissed for untimely filing is rejected. 

It should finally be mentioned that (1) a considerable portion of 

the time which elapsed between the allegedly discriminatory act 

and trial was accounted for by the extensive pre-trial procedures 

and settlement negotiations engaged in by the parties, and (2) 

Respondentv as 11 be shown withinu on the day it laid off 

Complainant was put on notice of possible litigation and began 

taking steps to prepare therefor (See Exs. J-2 and J-3)0 

General Matters 

Respondentu Dee Gold Mining Companyu was at all material 

times a Nevada partnership engaged in gold and silver mining 

(III-To 61)0 

Complainantr age 34 at the time of hearing, commenced 

employment with Respondent on March 26, 1984 (Ex. R-2), as a mill 

maintenance mechanic (I-T. 69, 73, 75}. His immediate supervisor 

was Allen 11 Al" Jensen, mi'll maintenance foreman ( I-T. 70) • Some 

of Cornplainant 1 s basic duties were repair, fabrication, welding, 

pipefitting, crusher repair and pump repair (I-T. 77, 82). 

Various of these duties were performed on or about mills near the 

mine which separated the gold ore from waste material. 

1634 
Complainant was laid off at the end of his day shift on the 

afternoon of Friday October 11, 1984, the last day of his work 

week (I-T. 105, 106; III-T. 114-116, 156). Thus, the total term 

of Complainant's employment with Respondent was less than seven 

months. 

Sometime in May or June of 1984 Complainant received a 

written evaluation from Al Jensen rating him as excellent in 

every category (I-T. 80-81).2/ He received no other ratings 

prior to his layoff. -

While Complainant's work performance was commendable in the 

beginning, it thereafter deteriorated. A decline in his speed 

and attitude was noted by his immediate supervisor, Jensen, 

following management's refusal to grant the mill maintenance 

crew's request for a raise CIII-T. 132-134). 

With respect to Complainant's attitude, Jensen testified 

that: "he would throw things, get a little bit angry about not 

having something to work with." Jensen also noted that 

Complainant complained about changes in the work schedule about 

this time, since he was building a house and that his hours began 

to drop. The records on overtime show that the high point on 

Complainant's overtime occurred in July, with 40 hours of 

overtime, and dropped to half that in both August and September. 

(See Exhibit R-2.) By contrast, during the same period Ingle 

worked 66 hours of overtime in July, 56 hours of overtime in 

August and 71 hours of overtime in September. 

Mr. Jensen, following Complainant's termination, and in 

accordance with usual procedure~, filled out a Dee Gold standard 

Payroll Change Notice Form, Joint Exhibit 1, which reflected his 

views on Complainant's ability as of the date that he filled it 

oute October 16v 19840 Complainant's 11 conduct 11 and "production" 

were listed as u'poor ~" while his ua initiative 11 was listed as only 

"fair." There were no "excellents" in the rating. 

In the summer of 1984, the mill maintenance crew 3/ 

consisted of Cornplainantu Wayne Overholser, Joseph P. Timko, Dick 

Eisenbarthe Mike Ingle and Mitch Geyer. All but Geyer were "mill 

maintenance mechanics". The sixth mill maintenance employeev 

mechanic Wayne Overholserv worked for only part of the summer of 

1984v before he transferred to the truck shop around September 1 5 

1984 (II-T. 2lv 88u 122-124v 136-138u III-T. 15, 42-43, 66). 

Another employeev Kenneth Kohlesu was promoted to and began 

working in mill maintenance, on or about September 1, 1984 (Ex. 

~/ Respondent contends that Complainant's work performance 

deteriorated after this time. 

3/ The record with respect to the number and composition of the 

crew was confused, possibly because of different employees coming 

in and out of the crew. 

1635 
J-8) before the layoffs CII-T. 110, 152; III-T. 44, 65, 

16 3 -16 7 ) • ~/ 

Dick Eisenbarth and Joseph Timko were hired subsequent to 

Complainant- Timko in June and Eisenbarth in July 1984 CI-T. 82). 

Ingles was hired before Complainant - on October 26, 1983 CII-T. 

79); Geyer was hired before Complainant also - on February 6, 

1984, but as a "helper" or laborer (II-T. 122); Geyer became a 

mill maintenance employee in August 1984 CII-T. 125). Timko 

commenced his employment with Respondent on June 11, 1984. Mr. 

Timko was elected mill maintenance safety representative 

(spokesman) sometime during the period July-September 1984 CI-T. 

124-126; II-T. 141). Certain of Respondent's management was 

aware he held this position (I-T. 125-126). Mr. Timko was laid 

off on October 9, 1984 (III-T. 109) shortly after a meeting on 

the same date- which was called to discuss complaints (including 

safety complaints) - was conducted with the mill maintenance crew 

by mill superintendent Steve Nameth. s; Mr. Timko, like 

Complainant, testified that he understood when he was hired that 

it was to be a permanent position CI-T. 122). Crew member Mike 

Ingle who was favored over Complainant and Timko in the RIF, 

however, was told when he was hired that there might be a layoff 

"after things were going" (II-T. 99) and that Jensen told him he 

was "afraid to hire too many people because of the layoffs" CIIT. 99) . 

Protected Activities 

At some indeterminate time prior to the start-up of the mill 

in September 1984, Complainant registered a verbal complaint to 

his immediate foreman, Al Jensen, concerning not having a grinding shield. Jensen replied that he would "put some on order" 

(I-T. 78)o 

Complainant also complained (1) to Larry Turner, Safety 

Directorv and Al Jensenu that he needed a respirator since he was 

working with cyanide acid and gasses (I-T. 79, 86-87> on or about 

September 25, 1984 (I-T. 87), and (2) about an acid plate (I-T. 

88-89)0 

Complainant engaged in various activities which Respondent 

was aware of in connection with his dissatisfaction with 

!:./ It thus appears that during the summer of 1984 and up to the 

layoffs in October 1984, the mill maintenance crew by and large 

did number six employees¢ This supports Respondent 1 s position 

that a layoff of 2 employees was called for to effect compliance 

with the Kilburn Report. 

~/ The October 9 meeting was a significant event in the context 

of this proceeding and is discussed more fully within. 

1636 
Respondent's so-called "lockout" procedure at the ball mill. 

complainant initially appraised this problem as follows: 

"A The first time that I was informed that they had an 

emergency and Al Jensen said you've got to go into the mill 

and fix a liner. I said fine, where do you want me to put 

my lock on the motor? Al said well, we can't lock the motor 

out and I said why is that. He said they don't want to lock 

out the motor and you can lock out the air clutch but I 

didn't like the way to find the ball mill to lock out the 

air clutch as opposed to the locking out the motors. If the 

chair for a person who is working in the mill and air motor 

is still running there is a possibility the clutch could 

engage by itself, by outside means and the mill would turn. 

Q. And what would happen if anyone was in the mill? 

A. The person would be dead. 

Q. What would kill him? 

A. Fifty or sixty tons of steel balls that would crush him 

to death. 

Q. What did Al Jensen say when you told him you thought the 

mill should be locked out? 

A. He said he had to do what he was told. 

Q. Who did he say told him that? 

A. Name th." 

( I-T. 89-90). 

Thereafterv on or about September 25, 1984v Complainant 

engaged in a conversation with Wayne Dillon, a safety 

representative of the State of Nevada who had been conducting a 

safety class at the mine, and Larry Turner, Respondent 1 s Safety 

Director, in which Complainant asked Dillon if Respondent's 

mechanical lockout procedure was in compliance with State or MSHA 

regulationso Complainant 0 s account of this conversation follows~ 

~Q. And what did Mr. Dillon say? 

A. He said absolutely not. 

Q. What did Mr. Turner say? 

A. Turner didn't say anything. 

Q. Did you make any complaints to Mr. Turner about the 

lock out procedure? 

A. I told Mr. Turner Mr. Dillon is right here standing 

beside you and he said the mechanical lock out or air clutch 

lock out is not acceptable. 

1637 
Q. What did Mr. Turner say in response to that? 

A. He was dumbfounded; didn't say anything." 

(I-T. 91; II-T. 24-29). 

Prior to October 1, 1984, Mr. Turner told Complainant that 

Bob Morley, an MSHA investigator said it was "okay for Dee Gold 

to have a mechanical lock out on the ball mill's air clutch." 

(I-T. 92). After this, on October 1, Complainant went to MSHA's 

Reno, Nevada office and discussed the matter with Joe Frazier, 

supervisor of mine inspectors, who Complainant understood was 

Morley's "boss." Frazier, according to Complainant, stated: 

"He said it was unacceptable to MSHA to have a mechanical 

lock out only the air clutch. He said it was a violation 

of standards& He read me the quotation in the regulation 

that all energized equipment will be de-energized before 

any worker will work on that equipment." 

(I-T. 93; See also II-T. 30) 

On Wednesday morning, October 3, 1984, Complainant advised 

Mr. Turner that" ••• a mechanical lock out was not acceptable to 

the Reno office." Mr. Turner indicated that he would look into 

it when he got the time (I-T. 94, II-T. 32). Both on October 4 

and October 5 Complainant asked Turner if he had called Reno and 

Turner hadn't CII-T. 33). Complainant advised Joe Timko, the 

minersu elected mill maintenance safety representative, that he 

would not go into the ball mill under existing conditions (I-T. 

95-96). He also confirmed to Al Jensen that he would not enter 

the ball mill CI-T. 97). This constitutes a refusal to work 

because of an asserted unsafe condition. 

Complainant gave this account of a final safety complaint 

which occurred on the morning of October llu 1984, the afternoon 

of which he was laid off: 

0

'Qo Between the time of the Timko lay off and your lay off 

did you make any safety complaints? 

Ao Yes u I dido 

Qc When did you make any complaints? 

Ac I think I believe it was Thursday morningv the day I 

was fired" 

Qo When were you fired? 

Ao I was fired that afternoon. 

Q. What was the nature of your complaint? 

A. First thing in the morning Al Jensen told me to move my 

welding table approximately ten feet to one side. I 

objected immediately. 

1638 
Q. What was the basis for your objection? 

A. Well it was a collection area. The floor had one foot 

rise of concrete and would collect water and slurry. I 

would have to be on the sump pump side of slurry side which 

was a danger of electrocution was always very dangerous. 

Q. Who did you say you made a complaint too? 

A. Al Jensen. He said this was what Steve Nameth wanted 

and this is what he is going to get. 

Q. Who informed you of your lay off on the eleventh? 

A. No one actually informed me of my lay off. 

Q. How did you learn about it? 

A. Al Jensen had me do an emergency pipefitting job. He 

set a pipefitting job where I had to put a water line into 

the feed chute of the rod mill. When I was all done with 

this job I went back to put time on my time card and my time 

card was not in the slot. I went to Al Jensen and said, 

well, where is my time card. I asked and he said I could 

tell you in an hour and I asked him if I was laid off. 

Q. What did you then? 

A. I went into Steve Nameth's office. 

Q. What did you say to him? 

A. Said I am the least productive employee? He said I am. 

Q" What did you say? 

A. I said I am going to fight it even with my record and 

evaluations I have in my record I am still not the least 

productive employee. 

Q. Did you say on what basis? 

A.. No. I just said I am going to fight it." 6/ 

(I-T. 106-107) -

It is thus clear in the record and found here that 

Complainant engaged in various safety activities which in the 

abstract were of a nature sufficient to invoke the protection of 

the ~ct. Respondent for the most part concedes, and the record 

6/ It is of some significance in this conversation Complainant 

did not specifically protest that hf felt he was being laid-off 

due to his safety activities. 

16 39 
in any event establishes, that Respondent's management were aware 

of these various activities prior to Complainant's layoff on 

October 11, 1984. 

The record, however, also shows that none of Complainant's 

safety complaints were received by his foreman or other of 

management's personnel with overt resentment, hostility or other 

discernible angry or anti-safety reaction. Also, during the 

summer of 1984, all the mill maintenance crew members were making 

complaints (I-T. 157; II-T. 56, 88, 128, 149). No one seemed to 

be making more complaints than any other (II-T. 88, 128, 140, 

149). Furthermore, all of the mill maintenance crew refused to 

enter the ball mill with the motor running CII-T. 141, 157, 161). 

The October 9 Meeting. 

After a rumor circulated that Mill Superintendent Steven J. 

Nameth was to issue a company policy that the air clutch lock 

out would be sufficient and all employees would abide by such 

policy (I-T. 97, 98), Complainant told Timko that "we should have 

a meeting" with Arthur J. Schwandt, General Manager for the 

project and Nameth's supervisor CI-T. 98). Other maintenance 

employees asked Al Jensen for such a meeting CII-T. 89). 

The meeting was held sometime between 9 a.m. and 11:30 a.m. 

in Steve Nameth's office CI-T. 99, 141; III-T. 101). The mill 

maintenance crew at that time consisted of Complainant, Joseph P. 

Timkov Dick Eisenbarth, Mike Ingle, Mitch Geyer and as previously 

noted, Kenneth Kohles (I-T. 99, 103, 141-142; II-T. 88, 162~ 

III-T. 65, 166-167). 

Joseph Timko, the safety representative, considered calling 

a meeting with Al Schwandt but did not do so after he learned of 

the "very close" friendship between Schwandt and Nameth (I-T. 

136-137)" The meeting in any event was called by Nameth after he 

was told by foreman Al Jensen that the men wanted a meeting with 

Schwandt to discuss ''complaints'' (II-To 98-100~ III-To 99v 102). 

Narneth reported the request to Schwandt who told Nameth "he was 

busy'1 and told Nameth to conduct the meeting (III-T. 100). 

The meeting was held in Nameth"s office (III-T. 101) and was 

attended Namethv Jensenr Complainantv Timko 7 Ingle and 

Eisenbarth. Mitch Geyer and Kohles did not attend the meeting 

(II-T. 129i; III-To 100). 

At the beginning of the meeting, Complainant said something 

to the effect that the men would like Art Schwandt present at the 

meeting (II-T. 91; III-T. 135) and Steve Nameth indicated that 

Schwandt would not be present but that he (Nameth) would give 

Schwandt all the pertinent information from the meeting. Nameth 

then opened up the discussion and Timko raised the subject of pay 

raises (II-T. · 36-37). Thereafter, work procedures and non-safety 

subject matters were brought up and discussed CI-T. 100; II-T. 

37-42, 90; III-T. 77). 

1640 
Thereafter, either Complainant or Timko, probably Complainant, raised the question of the lockout procedure (II-T. 90; 

III-T. 135). 

Those in attendance at this meeting gave differing accounts 

of it at the hearing. With the exception of Complainant, most of 

their remembrances of it were sketchy, sometimes remarkably 

contradictory, and for the most part lacking in detail. Other 

than Complainant's version the most inclusive account-with one 

inaccuracy as to when the "lockout" discussion occurred - was 

that of Nameth: 

"The way I remember it, Jones started to speak. I interrupted and said I have an announcement to make. I said 

we were going to have a lay off that week. Somebody spoke 

up and said, who is going to be laid off. I said the least 

productive employee. They wanted names or somebody said who 

and I don't think I mentioned the name. Then Jones started 

complaining about various things in the mill. I'll see if 

I can remember some of them. He complained about wage 

rates, he complained about work schedules, he complained 

about a job he had done in the rock mill making some kind of 

complaint. If I had done it his way we could have made it 

in four days but my way took 16 days. He complained about 

the use of the thickness of hard plates we were using for 

wear plates and of course he complained about the ball mill 

and rock mill lockout procedure. Before he got to that, 

Jones-- not Jones, I'm sorry-- Mr. Timko spoke up rebuking 

Jones and saying what's all this about. I thought we were 

going to talk about lockout procedures and well then, Jones 

started talking about lockout procedure. He said tt was not 

safe. It was inadequate. We checked with Bob Morley and 

Bob Morley said it was safe and we were legal. Jones then 

pulled out a card, I've been to see Bob Morley's boss. He 

mentioned the man as nameF I think some district director and 

I think his name was Frazier and Frazier said it is not 

acceptableo I said I donut know anything about thato It 

was Bob Morley who said it was acceptableo Jones said 

here's his card, call him right now and I said I would look 

into it. He said-- kept repeating, call him right now, call 

him right nowo He kept repeating and I said if you have 

nothing further we better go back to work and the meeting 

broke up about that time. 

Q. Do you recall anything else about that meeting? Let me 

withdraw that question. Was there a specific number of 

people as being identified as people who would be laid off 

at the meeting? 

A. No. 

Q. I couldn't quite hear when you were speaking and did you 

say it was going to be the least productive employee or 

least productive employees going to be laid off? 

1641 
A. It was plural. 

Q. Did the lay off in fact take place that day? 

A. Yes. 

Q. Who was laid off that day? 

A. Joe Timko. 

Q. Was anybody laid off later that week? 

A. Yes, George Jones was laid off two days later. 

Q. Why was it Timko was laid off first and then Jones? 

A. Wellu the work Jones was-- Timko was on was not critical 

to the operation of the plant. Jones was working on a pipeline that was critical." (III-T. 77-79). 

Nameth 1 s version of the October 9 meeting is at variance 

with the accounts of all others as to the time when he made the 

announcement that there would be layoffs. According to Nameth, 

he interrupted Complainant at the beginning of the meeting to say 

he had an announcement to make, i.e., that there would be a layoff. Nameth's rendition appears faulty in this one respect and I 

find that the layoff announcement did occur after the "lockout" 

discussion (I-T. 103; III-T. 155). Nevertheless, in all other 

respects, Nameth 1 s recollection of the October 9 meeting appears 

more lu~~d and detailed than the others and not being in great 

variance from Complainant's version it is accepted. 

Before the "lockout" discussion, two other safety matters 

were discussed, "face shields" and "hooks welded on a handrail" 

(I-T. 100-1013 III-To 136)" It is clear, however, that subjects 

other than safety matters were also brought up, such as pay 

raisesv wage ratesf work schedules, and work matters such as 

plate weldsv etco (II-To 36,, 38-423 III-To 103v 136). 

As noted above it appears that Complainant brought up the 

lockout procedure issue, saying it was not safe. Nameth replied 

that MSHA Inspector Bob Morley had said Respondent's lockout 

method was safe at which point Complainant produced a business 

card from his pocket and said he had gone to Morley 1 s 

boss-Frazier- who said it was not safe. Nameth said he was not 

aware of that (III-To 103-104) o Complainant said 11 here 1 s his 

card, call him right nowo ui Nameth said he would look into it and 

Complainant kept repeating "Here's his card, call him right now." 

According to Nameth, Respondent's safety director thereafter 

contacted Frazier and after some procedural processing MSHA 

determined Respondent's method was unsafe and that Respondent had 

to lock out the motor (III-T. 104-105). 

Following the meeting, ~ameth reported to Schwandt. Nameth 

testified: 

1642 
"A. Immediately after the meeting I went to Mr. Schwandt's 

off ice and I stated that we could not terminate these people 

now as we had previously planned and he said why not and I 

said because they have gone to MSHA. 

Q. What was said then? 

A. He said we had planned to lay these people off before 

they went to MSHA so let's go ahead with the reduction in 

force." CIII-T.89). 

Schwandt confirmed Nameth's account of this conversation 

( III-T. 36) • 

On October 9 after discussing the matter with Schwandt, 

Nameth checked with Al Jensen to "find out what jobs Jones and 

Timko were on". Nameth determined that Timko's job was not 

critical to the operation to be completed that day and that the 

job Complainant Jones was on was critical. He decided to let 

Timko go that day and to let Complainant go at the end of his 

work week on October 11 CIII-T. 110, 116). 

Later in the afternoon of October 9, 1984, Nameth told 

Jensen that Timko was to be terminated that day. Nameth was not 

present when Timko was told by Jensen he was to be laid off 

(III-T. 109-114). 

Following the layoffs (!II-T. 139-140), Nameth asked Jensen 

to prepare a memorandum (Ex. J-2) with respect to Jones and Timko 

which Nameth testified "was intended to be seen by myself and Mr. 

Schwandt in case we had problems as we are having right now" 

(III-T. 80) and in anticipation of future litigation (III-T. 95). 

Schwandt also asked Nameth to prepare such a memo to describe the 

incidents that led Nameth to believe Complainant Jones and Timko 

should be discharged (Ex. J-3 0 III-T. 80-81)0 

Respondentus Positiono 

Prior to the opening of the mine an engineering firm 

(Kilburn) prepared an authentication of Respondent's preliminary 

capital and operating budgets entitled the Kilburn Feasibility 

Capital Cost Study andu as previously noted, referred to herein 

as the Kilburn Report (III-T. 23). 

Excerpts from this Report were introduced into evidence as 

Ex. R-lo Such reflect that a total crew of four, 2 mill 

maintenance mechanics and two helpers, were contemplated as the 

nproper number" for the mill when its construction was completed 

and it came under "operating conditions." (III-T. 23-25, 135) 

More mill.maintenance employees were needed and hired during the 

period prior to the time the mill began operating CIII-T. 26, 31) 

in approximately September 1984 CI-T. 76). 

Sometime around the end of August 1984, shortly after the 

time Steve Nameth took over the supervision of the mill 

1643 
maintenance function, the Mine General Manager, Arthur J. 

Schwandt, discussed with him the size of the mill maintenance 

crew with the conclusion that the crew size should be four with 

the possibility that they might get by with less and that two 

should be laid off CIII-T. 26-29, 30, 31-34, 42, 90). In a 

meeting in mid-September between Schwandt and Nameth it was 

decided that Timko and Complainant would be the ones who would be 

laid off in the reduction-in-force CIII-T. 29, 31-33, 34, 47), 

the time of which would be contingent on the mill's "operation" 

and was anticipated to be "around" the first week of October 1984 

(III-T. 48, 50-51). 7; Al Jensen was in agreement that Timko and 

Complainant were the-two who should be laid off (III-T. 80). 

In this connection, Jensen, who himself had been laid off 

and was not employed by Respondent at the time of the hearing, 

testified: 

"Q. In your view who were the least productive workers of 

the group at the time of his determination? 

Ao I had three, George Jones, Joe Timko and Mike Ingle. 

Q. In ranking among those three who would you have laid 

off? 

A. If I had to do it because George and Joe because Mike 

Ingle was senior of the two. 

Q. Now, in-- why was it you regarded Mr. Jones as one of 

the least productive in the unit? 

A. I think it had to do a lot-- seemed like he slowed down, 

you couldn't prove this but it seemed like he had slowed 

down an awful lot in his work; his temperament had been 

very; very bad-- cussingu throwing things aroundo 

Qo What was the reason that you gave him a poor conduct in 

the general payroll change notice form? 

Ao Tempera 

Jones? 

Ao Ohu Joneso It was temper, getting mad at any little 

thingot• (emphasis added) (III-To 138) 

After he took charge of the mill maintenance crew in August 

1984u 11 Superintendent Nameth told the foreman, Al Jensen, to 

tell the crew that "we were overstaffed and we were going to have 

to cut two or three people off." He also told Jensen to "keep a 

7/ According to General Manager Schwandt, employees who were to 

be laid off (RIF:d) in all cases were not given advance notice 

(III-T.37). 

1644 
close eye" so that they would get "rid of the least productive 

people". CIII-T. 67). ~/ Around the time Overholser transferred 

out of the mill maintenance crew (September 1, 1984), Jensen was 

asked by the crew about the transfer and they told him they had 

"a lot of work". Jensen told them that he "had been told we 

already still have too many people now." CIII-T. 134, 148). 

Complainant Jones was present at this time (III-T. 134-135). 

The decision to terminate Complainant as one of the two to 

be laid off in the reduction-in-force was made by Mill Superintendent Nameth with the approval of General Manager Arthur J. 

Schwandt, in late August 1984 CIII-T. 90, 96, 117-119, 122-124, 

156). The actual date it was determined that Complainant would 

be laid off on October 11, 1984, was October 9, 1984 CIII-T. 122). 

At the time of the layoffs of Complainant and Timko on October 9 

and 11, 1984, respectively, Mr. Nameth was the person in management's hierarchy who effectively decided to hire, discharge and 

layoff employees in the mill maintenance unit CIII-T. 60, 96). 

In his testimony, Nameth described at length the reasons for 

laying off Complainant Jones {and Timko) and the process by which 

this decision was reached as follows: 

"A. The AR plate where Jones put in more than was necessary? 

A. Yes. 

Q. That would have been about the twenty-seventh or twentyeighth of August. 

Q. How important was that particular incident to you in 

reaching a conclusion? 

Ao The importance was that it was becoming apparent that 

Jones wouldn 1 t follow instructions. Also important in the 

fact he wasted a lot of expensive AR plateo 

Q. When did the incident with the two by four pieces occur? 

A. Sometime in July, early August. 

Q. And how did you hear about that? 

~/ Although Complainant alleges, and various of the crew who 

testified said, that the crew had no "advance notice" of the 

layoffs, Nameth's testimony that he told Jensen that two or three 

of the crew were to be "cut" is supported by the testimony of one 

crew member (Geyer) that there was "hearsay going around" that 

there was to be a reduction (II-T. 132). Also, as noted above, 

Ingle conceded he was told when he was hired that there might be 

layoffs after things got "going" (II-T. 99). These two 

evidentiary items lend support to Respondent's position. 

1645 
A. The carpenter involved told me about it. The carpenter 

was working for me. I believe at the time Jones was probably reporting to Bernie Carter through Jensen. 

Q. Were you in a position at that point to take any disciplinary action? 

A. I didn't. 

happened." 

I found OQt about it a day or so after it 

(III-T. 85-86). 

xxx xxx xxx xxx xxx 

"A. He was apparently deliberately slowing down. He was 

slow getting to the job. He always complained about stuff 

he had to work with." ( III-T. 87) • 

xxx xxx xxx xxx xxx 

"Did you have authority to reduce the force on your own 

authority? 

A. Probably, I am sure I would have discussed it with Mr. 

Schwandt. 

Q. Did you discuss it with Mr. Schwandt? 

A. Yes, I did. 

Q. When was that? 

A. The function was turned over to me on the twenty-fifth. 

The following Monday would have been the twenty-seventh and 

I would-- I'm sure I would have met with him on the twentyseventh. 

Q. What was said during that meeting? 

A. I mentioned the fact that we had too many people in that 

department and told him of the other operations that I had 

been on. He mentioned that there was some kind of study by 

Kilburn that indicated we were supposed to have four 

mechanics after the operation started up. 

Q. Were any people discussed as candidates for a reduction 

in force? 

Ao YeSo 

Q. Who was discussed? 

A. Joe Timko and George Jones. 

Q. What was said about them by each of you? 

A. I mentioned the fact they looked like they were dragging 

their feet. They weren't giving us an honest days work. 

1646 
There were several incidents which showed this. I think 

the-- I had an incident with George Jones on the cone 

crusher discharge chute where I told Al Jensen to put the 

discharge chute with no instructions (sic) because we were 

going to encounter a lot of clay and the chute should be 

without obstructions. George put the plate in there with 

protective obstructions and to protect the bolt heads. 

Somebody had to go back in there and cut them out. That 

added a lot of time to that job. 

Q. Did you mention this to Mr. Schwandt? 

A. I don't remember whether I did or not. 

Q. I am just trying to find out what you mentioned to him 

during this meeting? 

A. One of the things I mentioned to him, I could see 

crackers put in the plant, put in the chutes. They didn't 

put in wear plates and we had an incident with George Jones 

where what he was instructed to do was braze resistant 

plates. It's expensive. He had instructions to put in the 

hard plate to a certain length and he exceeded that and 

wanted it his own way-- I don't understand that level and 

when I questioned-- George doesn't know to follow instructions. He likes to do things his own way. 

Q. Did you tell that to Mr. Schwandt? 

A.. Yes, I did. 

Q. Did you tell anything else to Mr. Schwandt concerning 

these two employees or either of them in this meeting you've 

just described? 

Ao You are talking about the meeting of the twenty-seventh? 

QQ I am talking about the meeting of the week of August 

twenty-seventh. 

Ao Actual incidents, no: with the exception of the fact 

that both Jones and Timko were very slow getting away from 

the tool room,, Where most of the other mechanics would be 

off in 10 or 15 minutes to their jobs, Jones and Timko very 

of ten would be there 30-35 minutes after we started the 

shift,, 

Q" Now, did Mr. Schwandt have anything to say with respect 

to either of those employees? 

A.. I think Mr. Schwandt made some comments about Joe Timko's 

work. I don't think he said anything about Mr. Jones. 

Q. Do you recall whether he mentioned any particular Incidents with Timko? 

1647 
A. He mentioned it everytime he noticed Mr. Timko that he 

was-- I don't remember his exact words, but he was-- but 

that he was moving in slow motion. 

Q. Do you recall whether he said anything else on some 

particular incident? 

A. No, it was a long time back. 

Q. Was there any decision made at that time to have a reduction in force? How did the meeting conclude? 

A. There was no question at that time we were going to have 

a reduction in force. We had made a tentative decision that 

it wo~ld be Jones and Timko but I decided I would watch both 

of them and see if there was any change in attitude and behavior. 

Q. There were no incidents that occurred that week with 

Mr. Jones? 

A. Yes, there was an incident of the hydrostroke cylinder. 

Mr. Jones and Mr. Timko were both assigned to remove the 

hydrostroke cylinder because it had malfunctioned. We had 

to take it apart to where it had malfunctioned. It took 

Jones and Timko about eight hours to remove that and replace 

it. I felt that was much too long a time. 

Q. Was that reported to Mr. Schwandt at anytime during the 

week? 

A. Sometime during the week, yes. I think it was-- may have 

been Mr. Schwandt had walked by that job that particular day 

and observed some of it. 

Q. And who was involved in-- with that particular job? 

A. Mr. Jones and Mr. Timko. Somebody said that Mike Ingle 

was there part of the time, but I don't recall seeing him. 

(III-T. 68-72) 

xxx xxx xxx xxx 

Qo Did you have any subsequent meetings with Mro Schwandt 

on the subject of the reduction in force? 

Qo When? 

A. Sometime during the week of September 16th or 17. I 

believe 16th-- early in the week. 

Q. What was said during that meeting? 

A. I walked in his off ice and told him I wanted to reduce 

these guys, let these guys go now. 

1648 
Q. What did Mr. Schwandt say? 

A. Mr. Schwandt said we still have a lot of work to do; 

don't cut your nose off to spite your face. Let's wait a 

few more weeks. 

Q. Had there been any event that took place other than the 

hydrostroke cylinder that had brought you to that conclusion 

or what was it? 

A. In the case of Mr. Jones-- I'm sorry, Mr. Timko, had done 

a job on me number four conveyor belt skirting. He had 

fabricated the skirting, it was all wrong, had to be redone. 

That was sometime during that period. 

Q. What about Mr. Jones, did anything happen to him other 

than the hydrostroke cylinder incident? 

A. No specific things I can remember except for the fact I 

observed them apparently working at a slow pace, getting 

away from the tool room late, having coffee breaks." 

(III-T. 68-73; See also III-T. 117-118). 

On cross-examination, Mr. Nameth reiterated his reasons for 

selecting Complainant and Timko as the two mill maintenance 

employees who should be laid off, and pointed out that his 

decision was made before the "lockout" matter arose: 

Q. " ... as of the twenty-seventh, what in Mr. Jones conduct 

led you to conclude that he would be a candidate for favor 

to be reduced in force? 

A. His general conduct about dragging his feet, taking a 

long time to leave the tool room to go to his jobv the cone 

crusher charge chute incident that I described-- that was 

some of it. 

Q. Nowv how did you observe his general conduct the fact 

that it took him a long time to leave the tool shed? Were 

you standing there watching? 

~. Their starting time was 6~30. I would come up to the 

mill area about that time. I noticed other mechanics were 

off on their jobs and Timko and Jones were still in that 

area gathering up toolsv getting ready to be-- to go to a 

job. 

Q. You didnut say anything to him? 

A. I would deal with him through Mr. Jensen. I would complain to Mr. Jensen·about it. 

xxx xxx xxx xxx xxx 

1649 
Q. Now you as of the twenty-seventh felt Mr. Jones' performance was unacceptable; is that correct? 

A. Yes. 

Q. You didn't feel it incumbent upon yourself to give him a 

chance to improve himself? 

A. Before I took over from Bernie Carter, since I was going 

to have responsibility of that plant, I was out in the field 

quite often where Jones and Timko were working. I observed 

their work habits at that time but I wasn't directly responsible for them at that time. I forme1 conclusions. 

Even at that time I had suspicions, yes. I talked to Al 

about their performance and their performance did not improve from the day I took over. It seemed to get worse but 

it wasn't all that good up until that time. 

xxx xxx xxx xxx xxx 

Q. When did you learn that Mr. Jones had refused to enter 

the ball mill under the lockout procedure that you had instituted? 

A. You look for an exact date? 

Q. Approximately? 

A. It would have been about the twentieth or twenty-first 

of September. 

Q. And this was after you had already formed the conclusion 

that he would definitely be terminated? 

would think sov yes. (III-To 90-94) 

xxx xxx xxx xxx 

Qo I believe you mentioned something about a two by four 

that Mro Jones had thrown on the floor? 

Ao No it wasn't one two by four-- a carpenter was working 

at a table" He had cut a number of two by fours for a job 

that he was doing and Mr. Jones came along and asked him if 

he could have one or some of the two by fours and the carpenter said no, I need all that I 9 ve got. Mro Jones in a 

fit of temper swept everything off the table. 

Q. And did this help you to reach a conclusion that he 

should be terminated? 

A. It didn't help Jones case any. (III-T. 97) 

xxx xxx xxx xxx xxx 

1650 
Q. There was other evidence of Mr. Jones sweeping two by 

fours on the floor? 

A. No. There were other reports of Mr. Jones not being able 

to get along with some of the other people around there. 

Q. Second hand reports? 

A. Yes. 

Q. But you never checked those out did you? 

A. No, I didn't. CIII-T. 98). 

CONCLUSIONS AND DISCUSSION 

The Discrimination Formula. 

In order to establish a prima f acie case of discrimination 

under Section 105Cc) of the Act, a complaining miner bears the 

burden of production and proof to establish Cl) that he engaged 

in protected activity and (2) that the adverse action complained 

of was motivated in any part by that activity. Secretary on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2797-2800 (October 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir., 1981); and 

Secretary on behalf of Robinette v. United Castle Coal Co., 3 

FMSHRC 803, 817-18 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no part motivated by 

protected activity. If an operator cannot rebut the prima facie 

case in this manner it may nevertheless affirmatively defend by 

proving that (1) it was also motivated by the miner's unprotected 

activities, and (2) it would have taken the adverse action in any 

event for the unprotected activities aloneo The operator bears 

the burden of proof with regard to the affirmatively defense. 

Haro v. Magma Copper Co., 4 FMSHRC 1935u 1936-38 (November 1982). 

The ultimate burden of persuasion does not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Boich v. 

FMSHRC, 719 F.2d 194u 195-96 {6th Cir. 1983); Donovan v. Stafford 

Const., COou 732 F.2d 954, 958-59 (D.C. Ciro 1984) {specifically 

approving the Commissionus Fasula-Robinette test); and Goff Vo 

Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 (December 1986). 

In terms of the required prima facie case in discrimination, 

Complainant clearly established the first elements thereof, i.eo 

that had engaged in protected safety activit and that 

Respondent 1 s management was aware thereof prior to the time he 

was laid off. 

Discriminatory Motivation 

The first of the two salient issues posed here are whether 

the adverse action (layoff) taken by Respondent against 

Complainant was "in any part" motivated by Complainant's pro1651 
tected activities. Respondent contends that it was not so motivated in either laying off two of the mill maintenance crew or in 

selecting C~aplainant as one of the two to be laid off. 

Respondent's second line of defense, the affirmative defense 

provided under the Commission's discrimination formula, then 

frames the second issue: Assuming arguendo that Respondent was in 

part motivated by Complainant's protected activities, was it also 

motivated by his unprotected activities and would it in any event 

have laid him off for his unprotected activities alone. 

Under the 1977 Mine Safety Act, discriminatory motivation is 

not to be presumed but must be proved. Simpson v. Kenta Energy, 

Inc. and Jackson, 8 FMSHRC 1034, 1040 (1986). Complainant, in 

order to carry the burden of establishing discriminatory motivation, seeks to have an inference thereof drawn from various 

circumstantial factors. From gleaning and organizing these 

points from this difficult record and briefs, several are set out 

and discussed below. It is noted that three of these factorswhich are found to lack significant merit - are listed in the 

amended complaint and constitute part of the foundation for Complainant's theory of discrimination. 

(a) The Secretary argues that Complainant and Timko were 

shown in the record and characterized by Jensen CIII-T. 150) as 

the two biggest "complainers" and that these were the same two 

Respondent selected to lay off. 

I construe this characterization by Jensen to at least 

include safety complaints as well as other work-related 

non-safety complaints. Nevertheless, various other factors take 

the edge off this particular argument. The other members of the 

mill maintenance crew also complained of safety and other 

matters, also refused to enter the ball mill to do repair work 

unless the motor was locked outu specifically complained about 

the lock out procedure, and had arguments ("discussions") with 

Nametho 

As far as Timko was concerned, Nameth denied CIII-T. 127), 

and it was not otherwise established, that he had knowledge that 

Timko had been elected the crew 1 s "safety representative." I 

thus draw no carry-over inference that had it been established 

that Timko was discriminated againstp such discriminatory intent 

should be attributed to Respondent's purposes in also laying off 

Complainant. It is noted (1) that the Secretaryvs discrimination 

case on behalf of Timko was settled and not litigated and (2) 

that the record in this matter does not independently contain 

sufficient evidence from which a determination can be made 

whether or not Timko was discriminated against, or more specifically, whether or not Respondent was discriminatorily motivated 

in laying off Timko. 

Respondent credibly established good and sufficient reasons 

related to the work performance of Complainant for picking him to 

be one of the two to be laid off in accordance with the Kilburn 

1652 
Report 1 s staffing plan after the construction phase was completed 

and the mill was operating. 

(b) In the Amended Complaint, Complainant alleges that 

Nameth became irritable at the October 9 meeting after the "lock 

out" problem was raised and after it became apparent that Complainant had gone to the MSHA off ice in Reno and complained about 

Respondent's lock out procedure. 

Nameth's demeanor at this meeting was the subject of 

numerous descriptions, conflicting even among Complainant's own 

witnesses, one of whom said that Nameth was irritable even when 

he came into the meeting CII-T. 90). After careful scrutiny of 

the record, I find no credible, probative evidence that Nameth's 

demeanor at the October 9 meeting was any different than his 

customary demeanor which the crew members described in such terms 

as "belligerent", 11 hostile," "irritable", "angry," etc. CI-T. 81, 

90, 93, 134, 151). I find no reliable evidence and I am unable 

to conclude that any irritability shown by Narneth during the 

October 9 meeting was traceable to or a reaction to the lock out 

discussion or the expression of safety complaints. The record 

demonstrates there is both consistency and reliability in (1) 

Respondent's position and the testimony of its various witnesses 

that the layoff decision was made between Schwandt and Nameth 

some two to three weeks prior to this meeting, and (2) the bases 

established by Respondent (heretofore discussed) for the layoff 

of two crew members and Complainant and Timko in particular. 

(c) Another factor urged by Complainant for inferring discriminatory motivation is that there was no "advance notice" 

announcement, communication or other specific notification to the 

employees at any time that their employment was to be temporary 

or that there would be a layoff at a future time (Complainant 1 s 

brief , p. 2 2 ) • 

Based on prior findingsu I conclude that this contention has 

no merit and should not be considered part of any basis for 

inferring discriminatory motivation. Although Complainant 

testified that he was not advised at the time of hiring that the 

position was temporary, Ingle was so advised. Geyer testified 

that there was a layoff rumor going around which is consistent 

with Namethis testimony that he told Jensen to tell the crew that 

a cut of two or three mill maintenance employees would have to be 

made. It is also consistent with Jensen 1 s testimony that he told 

the crew that he "had been told that we already still have too 

many people.ui I do infer from this evidence that the crew was 

aware that a layoff was coming prior to the October 9 meeting in 

view of the small size of the crew and their poignant sensitivity 

to employment concerns shown in the record. 

(d) Complainant alleges: "As justifications for the alleged 

early decision to terminate Jones and Timko, Nameth complained 

that Jones had wasted a lot of expensive AR plate and that Jones 

and Timko were slow in getting away from the tool room. In fact, 

1653 
Nameth complained that Jones and Timko would of ten remain from 30 

to 35 minutes after the start of the shift (III-T. 70). Both of 

these complaints involved the wasting of company assets (either 

money or time). It must be remembered that Jones and Timko, 

although marked for termination as of the end of August, were to 

remain on the job until sometime in October. It is inconceivable 

that a manager could observe employees wasting half an hour at 

the start of the shift, consider it important enough to be a 

factor in a decision to terminate the employees, and never 

complain or take any steps to see that it did not continue for 

the next six weeks of their employment." (Complainant's Brief p. 

18) • 

As with many of Complainant's assertions, I find little 

merit in this contention. Nameth's failure to take direct 

disciplinary or corrective action himself is consistent with 

Respondent's intention of laying off employees in the near term. 

Also Nameth testified that he was "sure" that he expressed a 

complaint through Jensen about Complainant's and Timko's 

tardiness (III-T. 30, 91, 93). It is also apparent that shortly 

thereafter in mid-September, Nameth asked Schwandt to trigger the 

layoff immediately CIII-T. 73). According to Nameth, whose 

testimony I find generally persuasive and reliable, Schwandt 

replied: " ••• we still have a lot of work to do; don't cut your 

nose to spite your face. Let's wait a few more weeks." CIII-T. 

7 3) 0 

Had Complainant- and Timko- been punitively discharged for 

"wasting" company "time and money", this argument would have more 

strength. However, with a layoff planned in the foreseeable 

future, Nameth's actions are not inconsistent with Respondent's 

general position, nor are they seen as demonstrating a discriminatory frame-of-mind. By contrast, Complainant's work performance here is seen as providing a business justification for 

respondent us decision to select him for the layoff o 

Ce) Complainant argues that various work and staffing 

decisions by Respondent were not 11 consistent with a business need 

to reduce the number of maintenance employees." Various of these 

points which are frequently general and not particularly 

probative to begin withff are that~ 

(i) Kenny Kohlesv an inexperienced 19-year old who had 

been hired as a janitor in May 1984, was promoted to the 

mill maintenance crew around September 1: 

(ii) After the layoffs, the crew members who remained 

were required to work considerable overtime; 

{iii) An outside contractor (Western General Contractors) 

was brought in to do maintenance work which could have 

been performed by.employees of Dee Gold; 

(iv) Complainant and Timko were the only two workers laid 

off in 1984. 

The record reflects that Respondent did get by with two less 

mill maintenance employees after the layoffs and after the mill 

1654 
began operating; that the complement of 6 crew members prior to 

the mill start-up was reduced in accordance with Respondent's 

Kilburn Report staffing plan (III-T. 25, 27, 32) which was 

conceived before Complainant (and Timko) were hired; that Kohles 

was brought in to replace Overholser who requested a transfer out 

of the crew because of "friction" and that such replacement kept 

the size of the crew constant until such time as the layoff was 

called for. Kohles, according to Schwandt, was a "very hard 

working young fellow" (III-T. 43) and was "proficient in heavy 

equipment operation" (III-T. 65). 

Respondent also credibly explained that the reduction in its 

mill maintenance force was called for even though there was no 

reduction in other sections of the mine, and that such was due to 

the fact that "we had more people than we had budgeted for" 

(III-T. 62). Respondent then established that it was "cheaper to 

pay a premium for" overtime than to have extra workers due to the 

cost of fringe benefits, such as health benefits (III-T. 40, 41), 

and that the work performed by Western General Contractors was 

within the framework of its contract and not a diversion of work 

from the mill maintenance crew CII-T. 153; III-T. 37-39). 

(f) Complainant contends the after-the-fact written statements of Jensen (Ex. J-2) and Nameth (Ex. J-3) were prepared as 

part of a pretextual business justification for the layoff of 

Complainant and Timko. Here Complainant contends (Complainant's 

Briefv p. 24)~ 

It is only after the (October 9) meeting, after the terminations and after Jones informs Nameth that he is going to 

fight his termination, that Jensen is instructed to write 

anything negative he can think of relating to the employment 

history of Jones and Timko. Likewise, the self-serving 

memorandum from Nameth to Schwandt only occurs after Jones 

informs Nameth that he is going to fight. This is almost a 

classic scenario of an ex post facto attempt to fabricate a 

factual justification for a prohibited action already 

taken." 

There is no contention -- in this argument-- that any of the 

deficiencies of Complainant and Timko contained in the written 

statements of Jensen and Nameth did not occur. The point sought 

to be made is that such were fabricated and after-the-fact of the 

layoffs and thus should be the basis for an inference of 

discriminatory intent or animus. The response to this contention 

appearing at page 14 of Respondent 1 s brief is found to have 

rneri~. ·~ 

nJ-2 was not a routine document, rather one prepared for 

the purposes of the litigation. Specifically, it was 

prepared by Mr. Jensen pursuant to Mr. Nameth's request to 

list all of the problems that he, Jensen, had experienced 

with Messrs. Jones and Timko. 

1655 
Mr. Schwandt asked Mr. Nameth to prepare, and to have Mr. 

Jensen prepare, memoranda justifying Mr. Jones' termination • 

.•. This memorandum was intended entirely for the internal 

purposes of Dee Gold, and was not intended for distribution 

to third parties .••• The only reason the Government obtained it was because it asked for it in its discovery and 

it was dutifully produced. There is no suggestion in the 

record that the memorandum was relied upon by any parties 

in terminating Mr. Jones (although some of the incidents 

recounted in it are pertinent); indeed, it is perfectly 

plain that it was made following his termination." 

I find nothing irregular, suspicious, or nefarious in the 

fact that Respondent attempted to make a record for its own 

purposes after the layoffs in anticipation of future litigation 

(III-T. 54-57). Respondent effected no pretense that such statements were prepared prior to the layoffs. This contention is rejected. 

At page 16 of its brief, Complainant expresses a related 

concern~ 

9

'There is no dispute that management was aware of Jones' 

safety complaints during the month of September. If, in 

fact, they had decided in September to terminate Jones and 

were, in fact, fearful of "repercussions" would it have not 

been logical to prepare these memoranda at the time the 

decision was made and while Jones was still employed? The 

timing of these memoranda is additional evidence that the 

allegations contained therein were pretextural justif ications for decisions made in October which had nothing to 

do with ability or productivity." 

The record firmly establishes that all members of the mill 

maintenance crew had expressed safety and other complaints during 

the summer of 1984 and were apparently not reluctant in doing so. 

~t appears- and the probative evidence establishes-that 

Respondent had acquired real reason to anticipate litigation 

following both the October 9 meeting and the "I'll fight it" 

conversation between Nameth and Complainant after Complainant was 

laid off on October llv 1984e The fact that Respondent did not 

°'document •i Complainant as deficiencies earlier is not ill0gical 

but it is consistent with the position Respondent has taken in 

this matter that Complainant was laid off in a long - anticipated 

reduction-in-forcev and was not punitively discharged for unsatisfactory work performance or other reasons. An inference 

that the timing of the obtaining of the Jensen and Nameth statements is indicative of "pretextual justifications" will not be 

drawn" 

(g) As part of the mosaic from which Complainant urges the 

inference of discriminatory motivation be drawn, Complainant 

points out that approximately three months after he was hired, 

Complainant Jones received a written evaluation rating him 

1656 
"excellent" in all categories and he received no subsequent 

ratings or reprimands until his discharge. 

Respondent credibly established and I have hereinabove found 

that Complainant's performance deteriorated thereafter in various 

respects. Respondent's evidence in this respect is reliable and 

persuasive and its determination to select Complainant for layoff 

is found to be reasonably attributable-by virtue of the preponderant probative evidence-to the justifications asserted and 

not to complainant's protected activities. 

( h) 

plainant 

plainant 

reflects 

The most questionable circumstances raised by Comarose out of the October 9 meeting and from which Commaintains that the timing of the layoff announcements 

anti-safety or retaliatory animus. Thus: 

a. the meeting was called for the purpose of discussing 

complaints, including safety complaints; 

b. safety complaints were indeed expressed at the meeting, including the "lock out" problem, and; 

c. after such, and Complainant's revelation that he had 

reported the lock out problem to MSHA, Nameth announced 

the layoffs; 

(d) Nameth incorrectly testified that he announced the 

layoffs before the lock out issue and Complainant's 

revelation were brought up. 

Respondent, however, credibly established that it had 

previously planned the layoffs to take place around the time the 

October 9 meeting was held. Also, as previously shown, 

Complainant's belief and contention that Respondent had not 

previously planned, had no justification for, and had made no 

prior indication to the crew as to, the reduction in crew size 

was shown to be in error. Further, the quality of this record 

does not provide any reliable or persuasive basis to conclude (a) 

Nameth showed irritability at the meeting or (b) even assuming 

that he did, that was a reaction traceable to the voicing of 

any safety complaint or complaintso 

Respondent, on the other hand, persuasively established that 

the layoffs were planned long before Complainant was hired and 

that there existed good and sufficient reason for the selection 

Complainant for the reductiono 9; In addition, as previously 

shown, various of the bases for Complainantns assertion of 

discriminatory motivation, tenuous to begin with, did not stand 

up well under scrutinyo 

~/ In Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982) the 

Commission pointed out: "Our function is not to pass on the 

wisdom or fairness of such asserted business justifications, but 

rather only to determine whether they are credible and, if so, 

whether they would have motivated the particular operator as 

claimed." 

1657 
In reaching the conclusion that the Secretary failed to 

establish that Complainant's layoff was discriminatorily motivated, consideration has been given to the fact that the record 

is barren with respect to ancillary or background factors 

which would reflect a disposition on the part of Respondent's 

management personnel, singularly or collectively, to engage in 

such conduct. A prior history of, or contemporary action 

indicating, antagonism or hostile reaction to the expression of 

safety complaints was not demonstrated. There was no evidence of 

retaliation against other employees who had expressed safety 

complaints either in the mill maintenance crew or other 

departments. 

The record in this proceeding contains no admissions or 

other statements, oral or written, from the management personnel 

involved indicating an anti-safety reporting animus. Indeed, the 

record reflects that none of the employees were threatened or 

subjected to retaliation for expressing safety concerns or, in 

connection with the lock out issue, for not working inside the 

ball mill. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub. nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d (D.C. Cir. 1983); Sammons 

v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). The 

present record contains no direct evidence that Respondent was 

illegally motivated, nor does it support a reasonable inference 

of discriminatory intento 

Ultimate Conclusionso 

It is concluded that Respondent's motivation in selecting 

Complainant for layoff was for his several unprotected activities 

and the business justifications asserted by its management 

personnel, Schwandtp Nameth and Jensen, and that such decision 

was justified. It is further found that the adverse action 

complained of (layoff) was not in part discriminatorily motivated. Thus, the Secretary failed to establish a prima facie 

case of discrimination under Section 105Cc) of the Act. 

Even assuming arguendo that it were established by a preponderance of the evidence that Complainant's discharge was 

motivated in part by his protected activities, Respondent showed 

by a clear preponderance of the reliable, probative evidence that 

it was motivated by Complainant's unprotected activities and that 

it would have taken the adverse action in any event for such. 

See Gravely v. Ranger Fuel Corp., 6 FMSHRC 799 (1984). 

1658 
ORDER 

Complainant having failed to establish Mine Act discrimination on the part of Respondent, the Complaint herein is found 

to lack merit and this proceeding is dismissed. 

~~~~~~~. /~.fc;hael A. Lasher, fr. 

Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, 10th Floor, San Francisco, CA 

94119-3495 (Certified Mail) 

Jay W. Luther, Esq., Chickering & Gregory, Three Embarcadero 

Center, 23rd Floor, San Francisco, CA 94111 (Certified Mail) 

/bls 

1659 
F~DERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEIL SPRAGUE, 

Respondent 

SEP 81987 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-129-M 

A.C. No. 05-02666-05504 

Trupp Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

Citation No. 2638675 was issued on December 1, 1986, for 

Respondent's failure to provide for an elevated haulage road. On 

January 28, 1987, a Section 104Cb) Withdrawal Order (Failure to 

~bate Order No. 2637460) was issued since the Respondent failed 

to provide the berm within the time period provided in the 

Citation and its extension. In issuing the Withdrawal Order, the 

Inspector noted that the Order was written to "replace" the 

Citation "which was not complied with." 

In the parties' joint motion for approval of the settlement, 

the Petitioner moved to vacate the Order since preparation for 

the hearing "revealed that the failure to build a berm was caused 

by adverse weather conditions." As part of the settlement the 

administrative penalty originally sought by MSHA was reduced from 

$195 to $300 The reduction appears justified in view of the 

inference to be drawn from the fact that the Withdrawal Order 

has been withdrawn. I conclude that this reflects a change in 

Petitioner 1 s initial belief that Respondent did not proceed in 

good faith to promptly abate the violation after notification 

thereof. It also appears that this is a small operator (8800 

hours worked per year) who had a record of but 3 violations in 

the preceding 24-month period. 

In the prernisesv the settlement is approved. 

ORDER 

1. Withdrawal Order No. 2637460 is vacated. 

2. Citation No. 2638675 is affirmed. 

1660 
3. Respondent, if it has not previously done so, shall pay 

the Secretary of Labor within 30 days from the date of this 

decision the sum of $30.00 as and for the civil penalty for the 

violation described in Citation No. 2638675. 

~~~~£' d- ~~/fi- /-'f~hael A. la~her, Jr. 

Administrative Law Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Arkins Park Sone, Mr. Neil C. Sprague, 5975 North County Road 27, 

Loveland, CO 80538 (Certified Mail) 

/bls 

1661 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

PAULA L. PRICE 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

SEP 101987 

DISCRIMINA'rION PROCEEDING 

Docket No. LAKE 86-45-D 

VINC CD 85-18 

MONTEREY COAL COMPANY 

Respondent 

Monterey No. 2 Mine 

ORDER 

The attached Amerrded:necision is hereby issued pursuant to 

Commission Rule 65(c), 29 C.F.R. § 2700.65(c) to corr. t clerical 

mistakes in the decision in this case issued on Sept.~ er 3, 

1987. I ~ 

1 

Judge 

Distributiong 

Linda Krueger MacLachlanu Esq. 1 314 North Broadway, Suite 1130, 

St. Louis, MO 63102 (Certified Mail) 

'I'homas Co Means v Esqo f Crowell & Moring, 1100 Connecticut Ave. v 

NoW., Washington D.C. 20036 (Certified Mail) 

npt 

1662 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

PAULA L. PRICE 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 10 1987 previously issued Sept. 3, 1987 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. LAKE 86-45-D 

VINC CD 85-18 

MONTEREY COAL COMPANY 

Respondent 

Monterey No. 2 Mine 

AMENDED DECISION 

Appearances: Linda Kruege~ MacLachlan, Esq., St. Louis, 

Missouri for the Complainant; 

Thomas c: Me~ns, Esq., Crowell & Moring, 

Washington, D.C. for the Respondent. 

Before: Judge Melick 

On July 28, 1985, Paula L. Price filed a complaint of 

discrimination with the Secretary of Labor under Section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et. seq., the "Act"l/, alleging inter alia that 

Monterey Coal-Company (Monterey)-discriminated against her in 

violation of Section 105(c)(l) of the Act by suspending her for 

refusing to wear metatarsal safety boots provided by Monterey. 

Mso Price maintains that the boots did not fit, caused foot 

injuries and presented a health and safety hazard. 

~/Section 105(c)(2) of the Act provides as followsg 

Any miner or applicant for employment or representative 

of miners who believes that he has been discharged, 

interfered with 9 or otherwise discriminated against by 

any person in violation of this subsection may, within 

60 days after such violation occurs, file a complaint 

with the Secretary alleging such discrimination. Upon 

receipt of such complaint, the Secretary shall forward 

a copy of the complaint to the respondent and shall 

cause such investigation to be made as he deems 

appropriate. Such investigation shall commence within 

15 days of the Secretary's receipt of the complaint, 

and if the Secretary finds that such complaint was not 

frivolously brought, the Commission, on an expedited 

basis upon application of the Secretary, shall order 

1663 
Thereafter, on January 7, 1986, the Secretary's 

representative responded to the Complaint. The letter reads as 

follows: 

Your complaint of discrimination under section 105(c) 

of the Federal Mine Safety and Health Act of 1977 has 

been investigated by a special investigator of the Mine 

Safety and Health Administration (~SHA). 

A review of the information gathered during the 

investigation has been made. On the basis of that 

review, MSHA has determined that your complaint of 

discrimination has been satisfied and that no further 

pursuit of the complaint is required. 

fn.l/ (cont'd) 

- the immediate reinstatement of the miner pending final 

order on the complaint. If upon such investigation, 

the Secretary determines that the provisions of this 

subsection have been violated, he shall immediately 

file a complaint with the Commission, with service upon 

the alleged violator and the miner, applicant for 

employment, or representative of miners alleging such 

discrimination or interference and propose an order 

granting appropriate relief. The Commission shall 

afford an opportunity for a hearing; (in accordance 

with section 554 of title 5, United States Code, but 

without regard to subsection (a)(3) of such section) 

and thereafter shall issue an order, based upon 

findings of factv affirming, modifyingr or vacating the 

aecr •s proposed order, or directing other 

appropriate relief o Such order shall become final 30 

days after its issuance. The Commission shall have 

authority in such proceedings to require a person 

committing a violation of this subsection to take such 

affirmative action to abate the violation as the 

Commission deems appropr , including, but not 

limited to, the rehiring or reinstatement of the miner 

to his former position with back pay and interest. The 

complaining miner, applicant, or representative of 

miners may present additional evidence on his own 

behalf during any hearing held pursuant to this 

paragrapho 

1664 
If you should disagree with MSHA's determination, you have 

the right to pursue your action and file a complaint on your 

own behalf with the Federal Mine Safety and Health Review 

commission at the following address: 

Federal Mine Safety and Health Review Commission 

1730 K Street N.W. 

Washington, D.C. 20006 (202} 653-5629 

Section 105(c) provides that you have the right, within 30 

days of this notice, to file your own action with the 

Commission. 

After further unsuccessful efforts to have the Secretary 

represent her under section. 105(c)(2) of the Act, Ms. Price filed 

the instant proceedings under Section 105{c)(3) of the Act and 

under what was then Co:rrrmission Rule 40(b).~/ 

In her initial request to the Commission Ms. Price stated in 

part as follows: 

I would like to file a complaint in my own behalf 

concerning discrimination under section 105(c) of the 

Federal Mine Safety and Health Act of 1977. MSHA has 

determined my complaint has been satisfied. I feel it 

has only been partially satisfied. 

2/ Commission Rule 40{b), 29 C.F.R. § 2700.40(b), 

then provided as follows: 

complaint of discharge 9 discrimination or interference 

under section 105(c) of the Act may be filed by the 

complaining miner, representative of miners, or 

applicant for employment if the Secretary determines 

that no violation has occurred, or if the Secretary 

fails to make a determination within 90 days after the 

miner complained to the Secretary. 

1665 
Subsequently, in a decision issued on August 25, 1987, a 

majority of the Commission invalidated Rule 40(b) in part and 

stated as follows: 

Section 105(c} does not provide that complainants may 

file complaints on their own behalf if the Secretary 

has not determined whether a violation has occurred 

within 90 days of the filing of the complaint. To the 

contrary section 105(c)(3) expressly provides that the 

complainant may file his private action only after the 

Secretary has informed the complainant of his 

determination that a violation has not occurred: 

Within 90 days of the receipt of the 

complaint filed under [Section 105Cc)(2)J, 

the Secretary shall notify, in writing, the 

miner •.• of his ~etermination whether a 

violation has occurred. If the Secretary, 

upon investigatiGn, determines that the 

provisions of [section 105(c)] have not been 

violated, the complainant shall have the 

right within 30 days of the Secretary's 

determination, to file an action on his own 

behalf before the Commission, charging 

discrimination or interference in violation 

of [section 105Cc)(l)]. 

Gilbert v. Sandy Fork Mining Company Inc. and Secretary on 

behalf of Gilbert v. Sandy Fork Mining Company Inc., Dockets No. 

KENT 86-49-D and KENT 86-76-D, slip opinion p.11. 

In that decision the majority also held that its ruling 

th n was applicable to any individual discrimination complaint 

then pending before the Cornmissiono 

In light of the above it is clear that I am now without 

legal authority to continue the instant proceeding under section 

105(c)(3) of the Acto The Secretary has not informed the 

Complainant her n of a determination that a violation has not 

occurredo~/ Accordingly I have no choice but to dismiss this 

caseo 

3/ On the contrary, testimony at hearings in this case 

indicates that the Secretary's representatives found that there 

was a violation of section 105{c) but decided that in light of 

th8 purportedly small amount of damages involved and the heavy 

caseload in the Solicitor's office the case was not significant 

eiwugh ior the Secretary to pursue. Tr. 2589-2590. 

1666 
ORDER 

Discrimination Proceeding Docket No. LAKE 86-45 is hereby 

dismissed. 

Judge 

Distribution: 

Linda Krueger MacLachlan, Esq., 314 North Broadway, Suite 1130, 

St. Louis, MO 63102 (Certifie~ Mail) 

Thomas c. Means, Esq., Crowell & Moring, 1100 Connecticut Ave., 

N.W., Washington, D.C. 20036 (Certified Mail) 

npt 

166 7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ARNOLD SHARP, 

Complainant 

v. 

BIG ELK CREEK COAL CO., 

INC., 

Respondent 

SEP 151987 

. . DISCRIMINATION PROCEEDING 

Dodket No. KENT 86-149-D 

No. 1 Surface Mine 

SUPPLEMENTAL DECISION 

Appearances: Leon L. Hollon, Esq., Hazard, Kentucky, for 

Complainant;~ Stephen C. Cawood, Esq., 

Pineville, Kentucky, for Respondent. 

Before: Judge Fauver 

A decision on liability was entered on July 22, 1987, 

holding that Respondent discharged Complainant in violation of 

§ lOS(c}(l) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq., on May 28, 1986. The decision provided 

that the parties should meet in an effort to stipulate the amount 

of back pay, interest and litigation expenses due the 

Complainant, and to subm~t a proposed order for relief. 

\. 

The parties have submitted a proposed orderv agreed to by 

Complainant and the attorneys for Complainant and Respondentu 

with their motion for approval of the settlement reflected by the 

proposed ordero 

Paragraphs one through six of the proposed order? with minor 

changesv are approvedv but paragraphs seven and eight are not 

deemed to be appropriate in an order for relief under the 

statuteo 

ORDER 

Based upon the proposed order as approved herein, it is 

ORDERED thatg 

1. Within three days following receipt of this Order 

Respondent shall pay to the Complainant the total sum of $45,000, 

representing past wages, together with interest and all 

1668 
reimbursible expenses incurred by Complainant in connection with 

this pending matter. 

2. Respondent shall reinstate the Complainant to his 

previous job as a rock truck driver at the Respondent '·S No. 1 

Surface Mine in Leslie County, Kentucky, at that mine's 

prevailing rate for said classification {or $9.00 per hour), said 

reinstatement to be effective immediately upon receipt of this 

Order. 

3. At the conclusion or termination of Respondent's 

operations or services for Blossom Coal Company at Respondent's 

No. 1 Surface Mine, Respondent shall transfer the Complainant, or 

cause the Complainant to be transferred, to either a mining 

operation conducted by Red Star Coal Company or a mining 

operation conducted by Golden Oak Mining Compay, in a job 

classification to be determined by the Respondent, provided, 

however, that Complainant shall receive for such job 

classification the prevailing pay scale for rock truck drivers at 

the mining operation to which he is transferred. 

4. Should a rock truck driver's job become available at 

such new mine location, Respondent shall off er such rock truck 

driver's job to Complainant, if he remains in the Respondent's 

employment at the time such rock truck driver's job becomes 

available. 

5. Respondent shall retain Complainant in Respondent's 

employment for a period of at least one year from the date of his 

reinstatement under this Order, provided, however, that 

Complainant shall satisfactorily perform his job and comply with 

Respondent 1 s work rules and provided that Respondent or its 

affiliates remain in the coal business in Eastern Kentuckyo 

6. Respondent shall pay to Leon Lo Hollon, Esq., counsel 

for the Complainant, a reasonable attorney 1 s fee to be approved 

by the Judge. 

The decision entered on July 22v 1987v shall not be made 

final until an order is entered herein approving an attorney 1 s 

fee for Complainantvs attorney. 

ti)~~'"'~ William Fauver 

Administrative Law Judge 

1669 
AGREED TO: 

~~ Complainant 

Distribution: 

Leon L. Hollon, Esq., P.O. Drawer 779, Hazard, KY 41701 

(Certified Mail) 

Stephen c. Cawood, Esq., Cawood & Fowles, P.O. Drawer 280, 

Pineville, KY 40977 (Certified Mail) 

slk 

1670 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 18 1987 

LOCAL ONION 1810, DISTRIC'r 6, 

UNITED MINE WORKERS OF 

Ai.'\1ERICA ( UMWA) I . . COMPENSATION PROCEEDING Docket No. LAKE 87-19-C 

Complainant 

v. 

NACCO MINING COMPANY, 

Respondent 

Powhatan No. 6 Mine 

DECISION 

Appearances: Earl R. Pfeffer, Esq., Washington, DC, for 

Complainant; 

Thomas C. Means, Esq., Washington, DC, for 

Respondent. 

Before: Judge Fauver 

SUPPLEMENTAL DECISION ON COMPENSATION 

This proceeding was brought by the UMWA under § 111 of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seqof for compensation for miners idled by a 

modificatTOi1 of a 104(d)(2) order. 

A decision on the merits was entered on August 4, 1987v 

holding that Complainant is entitled to the compensation claimed. 

The decision provided the parties an opportunity to stipulate the 

amount of compensation and provided thatp "This Decision shall 

not be made final until a Supplemental Decision on Compensation 

is entered herein.~ 

Based upon the record as a whole, including the partiesv 

posthearing stipulation of the compensation due under the earlier 

decision, this Supplemental Decision awards compensation and 

orders payment of the compensation due plus interest. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay a total of 

$30,424.08 in compensation due the individuals shown in 

Attachment A to this Supplemental decision, plus interest on the 

amounts shown computed in accordance with the Commission's 

decision in Arkansas Carbona, 5 FMSHRC 2042 (1983). 

1671 
The August 4, 1987, decision is hereby made FINAL along with 

this Supplemental Decision. 

lJJJu 'w--?/r- "(A... William Fauver 

Administrative Law Judge 

Distribution: 

Earl R. Pfeffer, Esq., United Mine Workers of America, 900 15th 

St., N.W., Washington, D.C. 20005 (Certified Mail) 

Thomas c. Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave., 

N.W., Washington, D.C. 20004 (Certified Mail) 

kg 

72 
ATTACHMENT A 

WAGES OF 87 HOURLY PERSONNEL PLACED 

ON LAYOFF STATUS OCTOBER 6, 7, 8, - 1986 

CHECK NO. & NAME 

4250 C. Neff 

4322 W. Wain 

4366 G. Palmer 

4373 H. Cox 

4490 R. Parish 

4681 K. Roe 

4504 P. Barath 

4617 G. Makara 

4629 T. Ackerman 

4682 D. Dixon 

4267 R. Betts 

4337 K. Neal 

4365 J. Holskey 

4307 J. Jeffers 

4603 R. Wiggins 

4362 R. ·Basham 

4402 J. Thornton 

4484 R. Shreve 

4422 T. Bri 11 

4437 M. Mccollum 

4311 R. Jeager 

4622 J. Grear 

4558 M. Ackerman 

4657 T. Myers 

4206 D. Cunningham 

4220 J. Graham 

4344 F. Keylor 

4408 J. Warner 

4478 D. Huohes 

4358 L. Pa1mer 

4243 T. Cunningham 

4340 S. Gossett 

4684 J. Douglass 

4550 S. Benson 

4429 R. Kline 

4394 J. Scott 

4238 T. Lowe 

4395 P. Scott 

4498 J. Broemsen 

4246 G. Cline 

11547 'Ii. "yers 

4616 J. Thoburn 

431G J. Mellott 

4269 0. Campbell 

4430 M. Garten 

4658 t. Parker 

4470 T. Watson 

4240 R. Major 

4621 B. Hoski~son 

4273 J. Faldoski 

4320 G._Selmon 

4391 J. Mercer 

4359 R. Clift 

4435 M. Bigelow 

4202 L. Wise 

4205 E. Bartnicki 

1673 

TOTAL 3-DAY WAGES 

$ 372.36 

372. 36 

372.36 

346.74 

346.74 

346.74 

346.74 

346.74 

346. 74 

346. 74 

348.48 

348.48 

372.36 

372. 36 

353.82 

372. 36 

372 .36 

353.82 

372.36 

372. 36 

372.36 

372.36 

353.82 

362.76 

362.76 

362.76 

337.14 

337.14 

337.14 

338.88 

337.14 

337.14 

337.14 

337.14 

337.14 

337.14 

337.14 

337.14 

337.14 

345. 84 

362. 76 

362.76 

344.22 

344.22 

362.76 

344. 22 

344.22 

362.76 

362.76 

362. 76 

362.76 

362.76 

344.22 

337.14 

369.96 

369. 96 
CHECK NO. & NAME TOTAL 3-DAY WAGES 

4420 G. Schuster $ 369. 96 

4625 G. Edwards 369.96 

4555 R. Wil 1 lamson 351.42 

4660 B. Loo9 351.42 

4264 J. Yanos i k 351.42 

4317 J. Mowery 369.96 

4449 R. Wits berger 344. 34 

4546 R. Swa 11 i e 344.34 

4225 M. Goddard 344.34 

4403 B. Clary 344. 34 

4483 G. Garczyk 344 .34 

4551 B. Stacy 344. 34 

4552 B. Evans 344. 34 

4557 R. Jones 344. 34 

4607 s. Bos ton 344. 34 

4506 J. Eichhorn 360.24 

4505 D. Eichhorn 344. 34 

4413 E. Christman 369.96 

4627 K. McF ar 1 and 351.42 

4553 o. Davis 351.42 

2869 G. Goddard 369. 96 

4469 c. Thompson 369.96 

4618 M. Vo leek 369.96 

4492 J. Arbogast 369.96 

4319 w. Hol 1 and 351.42 

4619 R. Homan 351.42 

4272 s. Hayes 351.42 

4436 M. Zaborek 351.42 

4361 B. Knight 351. 42 

4411 c. Carpenter 346.08 

TOTAL $30,424.08 

1674 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 18 \987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONSOLIDATION COAL COMPAN¥, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Respondent 

Doc'ket No. WEVA 87-66 

A. C. No. 46-01433-03736 

Loveridge No. 22 Mine 

CONTEST PROCEEDING 

Docket No. WEVA 87-8-R 

Order No. 2841392~ 9/9/86 

Loveridge No. 22 Mine 

DECISION 

and 

ORDER OFJ5ISMISSAL 

Appearances: 

Before: 

Therese I. Salus, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, nennsylvania, for the Petitioner/Respondent; 

Michael R. Pee sh, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent/Contestant. 

Judge Koutras 

Statement of the Proceedings 

The captioned civil penalty proceeding concerns a proposal 

for assessment of civil penalty led by the petitioner against 

the respondent pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(a), seeking a 

civil penalty assessment of $750 for an alleged violation of 

mandatory safety standard 30 C.F.R. § 75.400, as stated in a 

section 104 (d) (2} "S&S" Order No. 2841392 served on the respondent on September 9, 1986. The order was issued after the 

inspector observed accumulations of float coal dust on the mine 

1675 
floor along a conveyor belt haulage entry. The companion contest proceeding concerns Consolidation Coal's challenge to the 

legality of the order. 

The respondent/contestant filed a timely answer and contest, 

and the cases were consolidated for hearing with several other 

cases in Morgantown, West Virginia, during the hearing term 

August 25-26, 1987. However, when the cases were called for 

trial, the parties advised me that they had reached a settlement in the civil penalty case, and that upon apprqval of the 

settlement, the contestant will withdraw its contest. Under the 

circumstances, the parties were afforded an opportunity to present oral arguments on the record in support of their proposed 

settlement (Tr. 3-8). The proposed settlement was approved from 

the bench, and my decision in this regard is herein re-affirmed. 

Discussion 

In support of the. prqposed settlement of the civil penalty 

case, the parties presented information 9ertaining to the six 

statutory criteria found in section llO(i) of the Act. They 

also discussed and disclosed the facts and circumstances with 

respect to the issuance of the violation, and a reasonable 

justification for a reduction of the original proposed civil 

penalty assessment. The proposed settlement requires the 

respondent to pay a civil penalty assessment of $450 for the 

contested violation in question. 

Conclusion 

After careful review of the pleadings filed by the parties, 

and upon consideration of the arguments made in supoort of the 

proposed settlement of the civil penalty case, I conclude and 

nd that the settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the settlement is APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty assessment in 

the amount of $450 in satisfaction of the violation in question 

within thirty (30) days of the date of this decision and order, 

and upon receipt of payment by the petitioner, the civil penalty 

proceeding is dismissed. In view of the settlement dispositionof the c penalty case, contestant's request to w~thdraw its 

contest IS GRANTED, and it IS DISMISSED. 

~Koft~ Administrative Law Judge 

1676 
Distribution: 

Therese I. Salus, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Bldg., 3535 Market St., Philadelphia, 

PA 19104 {Certified Mail) 

Michael R. Peelish, Esq., ConsolidatioR Coal Company, 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

1677 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 8020.4 SEP 211987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FREEMAN UNITED CO~L MINING 

COMPANY, 

Respondent 

and 

UNITED MINE WORKERS OF AMERICA, 

LOCAL UNION NO. 1591, 

Intervenor 

: 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. L~KE 86-67 

A.C. No. 11-00599-03631 

Orient No. 6 Mine 

Appearances: Rafael Alvarez, Office of the Solicitor, 

u.s. Department of Labor, Chicago, Illinois, 

for Petitioner; 

Harry M. Coven, Esq., Gould & Ratner, 

Chicago, Illinois, 

for Respondent; 

Larry G. Eubanks, United Mine Workers of 

America, Local Union 1591, Benton, Illinois, 

for Intervenor. 

ore Judge Morris 

The Secretary of Labort on behalf of the Mine Safety and 

Health Administration, charges respondent with violating a safety 

regulation promulgated under the Federal Mine Safety and Health 

Actff 30 U.S.C. § 801 et seq.v (the Act)o 

A hearing on the merits took place in St. Louisv Missouri on 

March lOu 1987. 

Issues 

The issues are whether a violation occurred. If a violation 

occurredv was it of a significant and substantial nature& Finally, 

if the citation is affirmed what penalty is appropriate. 

1678 
Contested Order 

Order Number 2823383, issued under Section 104(d)(2) of the 

Act, alleges respondent violated 30 C.F.R. § 75.316. The cited 

regulation reads as follows: 

§ 75.316 Ventilation system and methane 

and dust control plan. 

[Statutory Provisions] 

A ventilation system and methane and dust 

control plan and revisions thereof suitable 

to the conditions and the mining system of 

the coal mine and approved by the Secretary 

shall be adopted by the operator and set out 

in printed form on or before June 28, 1970. 

The plan shall show the type and location 

of mechanical ventilation equipment installed 

and operated in the mine, such additional or 

improved equipment as the Secretary may require, the quantity and velocity of air 

reaching each working face, and such other 

information as the Secretary may require. 

Such plan shall be reviewed by the operator 

and the Secretary at least every 6 months. 

Stipulation 

At the hearing the parties stipulated as follows: 

1) The Federal Mine Safety and Health Review Commission 

has jurisdiction over these proceedings. 

(2) Freeman United Coal Mining Company is a subsidiary of 

Material Service Corporation. 

(3) Material Service Corporation is a subsidiary of General 

Dynamics Corporation. 

(4) Freeman United Coal Mining Company owns and operates the 

Orient Noo 6 mineo 

(5) The Orient No. 6 mine is an underground mine, which 

extracts bituminous coal. 

(6} The Orient No. 9 mine extracted 1,429,622 tons of coal 

from February 26, 1985 to February 26, 1986. 

1679 
(7) Respondent extracted 6,471,856 tons of coal from 

February 26, 1985 to February 26, 1986. 

(8) Respondent's business affects commerce. 

(9) Respondent's business will not be affected by the payment 

of the proposed assessment of $950.00. 

(10) Orient No. 6 is a gassy mine. 

(Tr. 8, 9, 68). 

Summary of the Evidence 

Secretary's Evidence 

John D. Stritzel and Larry Eubanks testified for the 

Secretary. 

JOHN D. STRITZEL, a ventilation specialist, has been a coal 

mine inspector with MSH~ since 1971. His specialty includes 

reviewing plans and checking their adequacy (Tr. 15, 16). His 

expertise includes training in Beckley, West Virginia (Tr. 16, 17). 

Prior to working for MSHA he started the safety division for 

respondent and served as a foreman trainee (Tr. 16-18). 

On December 11, 1985 he conducted a technical ventilation 

inspection at the Orient No. 6 mine (Tr. 18). The inspection team 

consisted of Stritzel's immediate supervisor, Mark Eslinger, as 

well as Larry Eubanks of the UMWA; Howard Hill represented 

respondent (Tro 19 9 23) o 

The inspector took notes and drew a map of the area (Tr. 20u 

23v Exo P3)" He stopped between room 31 and room 32 at the last 

open crosscut in the intake entry. As he passed through the pullthrough curtain he observed a shuttle car being loaded at the face 

(Tr" 24, 54)" He also observed the curtain down in the corner of 

room 31" There was about a three-foot gap in the plastic curtain" 

He did not know how long the gap had existed. He then began to 

take an air reading after first turning on the scrubber (Tr. 26-28, 

64, 65)" The air reading was taken with an anemometer. ~/ 

~/ An anemometer is a device that measures the flow of air in feet 

per minute (Tr. 29}. 

1680 
The inspector then directed the miners not to rehang the 

curtain until he took his air reading {Tr. 29, 30). He calculated 

the air flow at 1662.5 cubic feet per minute, {cfm), at the end of 

the line curtain (Tr. 30, 31). He then advised Paul Little, the 

section foreman, that a violation existed (Tr. 31). Little said he 

thought there should be an air velocity of 3000 cfm in the entry. 

Mark Eslinger said 5000 cfm was required (Tr. 32). An order was 

issued~ the ventilation plan requires 5000 cfm (Tr. 33, Ex. P4). 

The order was issued because the condition they found shortcircuited the air from the face area. The inspector issued a 

104(d){2) 2/ order because the section foreman didn't know how much 

air was required. The inspector believed it constituted an unwarrantable failure for the company to put in a man who did not 

know the air requirement in the gassy mine {Tr. 34, 35). Little 

stated this was his second day in the working section. His prior 

experience was as a belt and construction foreman for 15 years 

(Tro 35). 

The company abated the violation by having the entire crew 

repair the hole and reposition the curtain. They then had 5800 cfm 

(Tr. 36). 

The inspector concluded that the violation was S & S because 

the volume of air was approximately a third of the required amount. 

But he did not know how long this condition existed. An ignition 

would possible if a buildup of methane gas occurred in this 

gassy ne (Tro 41Q 42v 45)0 The inspector further t that the 

gravity of the violation could affect the two miner operators and 

the buggy runnero In additionv the operator 1 s negligence was high 

(Tr. 42 u 43) o 

In considering whether a violation is S & s, various factors 

to be considered include the duration and the seriousness of the 

condition (Tro 45u 46). The inspector felt the condition described 

in his order sted for probably two minutes (Tro 46)o 

2/ The parties stipulated that a predicate 104(d) order was issued 

(Tr. 38, Ex. PS). 

1681 
The methane concentration in the section was not dangerous1 

it measured one-tenth of one p~rcent (Tr. 47, 49). 

It was necessary to turn the scrubber on so they would know 

how much air was coming out at the end of the line curtain. The 

scrubber pulls out about 1000 cfm {Tr. 62). 

The shift started at 8:00 a.m. and the inspector's air reading 

was taken at 9:35 a.m. (Tr. 63). 

No reading was taken between the time the three-foot opening 

was closed and the repositioning of the curtain (Tr. 65}. The 

inspector had not observed any excessive gaps in the curtain before 

it was repositioned. The three-foot hole and the minimal air at 

the end of the line curtain were the only violations (Tr. 66}. 

LARRY G. EUBANKS is a coal miner for respondent. He is 

presently a laborer and pit committeeman for the UMWA (Tr. 71). 

The witness was a member of the inspection team (Tr. 73). 

While underground he made notes during the investigation (Tr. 75, 

Ex. P7). During the inspection Little said the required air was 

3000 cfm. 

Eubanks saw the hole in the curtain. The air reading was 

1662 cfm (Tr. 76, 78). 

Respondent's Evidence 

Robert Newton and Howard o. Hill testified for respondent. 

ROBERT NEWTONu a shuttle car operator for respondenty is 

presently unemployed" On December 11, 1985 0 he was unloading coal 

from the continuous miner" With his on-side standard shuttle car 

he took coal to the tail belt (Tr. 88, 89, Ex. R2, R4) The offside car will become entangled and will tear down curtains when 

there is a lot of air coming through (Tr. 89). 

The off-side buggy follows a different route than the on-side 

buggy (Tr. 9lu Ex. R4). 

It takes about four or five minutes between the time the buggy 

is filled and until it unloads at the belt tail. When operating 

the buggy the witness always looks back to be sure the curtain 

hasngt been torn down. The off-side car operator doesn't have this 

advantage (Tr. 94). On his trip to the belt tail the curtain was 

in good shape (Tr. 96). After dumping his load and returning to 

the mining machine he was sitting in the crosscut waiting for the 

other buggy to leave room 31. 

1682 
While in that position he heard a "big snap." The other buggy 

operator had to stop and unroll some of his cable (Tr. 97). Just 

as the shuttle car passed in front of him he heard a noise like a 

tear and the witness saw that the curtain was gone. In about three 

seconds the witness then stopped his buggy, got his hammer and 

nails and he was going to rehang the wadded-up curtain. At that 

point the inspector directed him not to rehang the curtain (Tr. 98, 

99, 101-104, 113, 115). About 16 or 18 feet of curtain had been 

torn down. Newton estimated he could rehang the curtain in three 

or four minutes (Tr. 99, 100). The cable of the off-side machine 

will frequently become entangled with the curtain (Tr. 100). 

Newton identified the position of the tear on Exhibit R4 

(Tr. 112, Ex. R4). If he had not been stopped by the inspector, 

the curtain would have been down no more than five or six minutes 

(Tr. 122). 

HOWARD O. HILL, a field ventilation engineer, is a retired 

employee of respondent (Tr. 123). The witness, who helped develop 

the ventilation plan, producted the pre-shift and shift reports 

covering December 11, 1985 (Tr. 124, 125, 158). The reports indicated all of the faces and entries had been determined to be safe. 

No indication of methane gas was found (Tr. 126, 127). The ventilation in the intake entry was 14,400 cfm and 12,000 cfm at the 

point of return (Tr. 127, 129, Ex. R6). 

The witness accompanied the inspection team and observed that 

16 to 20 feet of the curtain was down. 

The inspector's initial air reading was about 1600 cfm: the 

next one was almost 6,000 cfm (Tr. 139). Mr. Stritzel and Eubanks 

both said there was a 2- to 3-foot opening in the curtain. The 

smaller opening would still leave enough air at the end of the 

line curtaino But a 16- to 20-foot gap would have totally shortcircuited the air (Tro 13lu 132)0 

In Hill's opinion 14,400 cfm of air on the intake is sufficiento Furtheru in his opinion, the inspector did not correctly 

recreate the conditions for which he issued the citation CTr. 145)0 

If the curtain had been restored by Mro Newcome the ventilation 

would have been around 7,000 cfm (Tr. 146)~ Further, in Hill's 

opinion the curtain was down less than five minutes (Tr. 147). 

It is the practice in this mine to rely on intake air readings to 

determine whether it is safe to cut coal at the face (Tr. 151). 

In Hill gs opinion a 16- to 20-foot gap in the curtain would 

create a hazard over a period of time (Tr. 153, 154). Methane 

could build up to the point of ignition (Tr. 154). 

1683 
A violation exists if the continuous miner is cutting coal at 

the face below 5,000 cfm {Tr. 159). 

Discussion 

The credible evidence adduced by the inspector shows that 

he took an air reading after he observed a three-foot gap in the 

line curtain. On the other hand, the credible evidence adduced by 

respondent's witnesses establishes that the off-side shuttle car 

became entangled in the line curtain at about the same time, 

thereby tearing an 18- to 20-foot gap in the curtain. Under these 

conditions the air velocity was measured at 1,662 cfm. 

Respondent initially contends that the Secretary did not 

establish a violation. I disagree. The evidence is uncontroverted 

that the air velocity measured 1,662 cfm at the end of the line 

curtain. A velocity of 5,000 cfm is required. Accordingly, the 

Secretary's evidence establishes a violation of the regulation. 

Respondent further asserts that the inspector interfered with 

the mining cycle when he ordered the employee to stop hanging the 

curtain. Further, respondent argues that such action constitutes 

a violation of MSHA's policies. 

Respondent's arguments lack merit. It can hardly be considered a part of any mining cycle for a shuttle car to tear down 

a portion of the line curtain. It accordingly follows it is not 

proper, as the operator urges, to issue an advisory directive to 

the inspector prohibiting such activities. Respondent cites no 

MSHA directives and no case law in support of its view that the 

inspector overreached his authority in prohibiting the shuttle car 

operator from rehanging the curtain while he took an air readingo 

Respondent further claims the inspector did not accurately 

recreate the conditions he initially observed. Further, the 

operator claims the air measurement did not reflect a three-foot 

hole in the blowing line curtaino 

Respondent 0 s arguments are misdirected. It is true that 

.respondent 1 s expert witness testified that a three-foot gap in 

the curtain would not cause the cfm to drop sufficiently to cause 

inadequate airo Howeveru the violation occurred when the air 

velocity was below 5,000 cfm. It is immaterial whether such 

velocity was caused by a three-foot gap or a twenty-foot gap. 

The Secretary contends that the violation herein was both 

S & S and that it constituted an unwarrantable failure on the part 

of the operator. 

1684 
I disagree. An S & S violation is described in section 

104(d)(l) of the Mine Act as a violation "of such nature as could 

significantly and substantially contribute to the cause and effect 

of a coal or other mine safety or health hazard." 30 C.F.R. 

§ 814{d)(l). A violation is properly designated significant and 

substantial "if, based upon the particular facts surrounding the 

violation there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably 

serious nature," Cement Division, National Gypsum Co., 3 FMSHRC 

822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and substantial under National Gypsum the Secretary of Labor 

must prove: Cl) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard --

that is, a measure of danger to safety -- contributed 

to by the violation~ (3) a reasonable likelihood that 

the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula •requires that the Secretary 

establish a reasonable likelihood that the hazard contributed to will result in an event in which there is 

an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 

(August 1984)0 We have emphasized that, in accordance 

with the language of section 104(d)(l), it is the contribution of a violation to the cause and effect orahazard that must be significant and substantialo U.S. 

Steel Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 

1984)u U.S.Steel Mining Company, Inc., 6 FMSHRC 1573q 

1574-75 (July 1984). 

In the instant case there was no methane hazard and the reduction of the air flow only lasted a short time. 

An unwarrantable failure occurs if the operator is indifferent, shows a willful intent or if there is a serious lack 

of reasonable care. U.S. Steel Corporation, 6 FMSHRC 1423, 1437 

(1984). The record fails to establish the necessary factors to 

establish unwarrantable failure on the part of the operator. 

1685 
The inspector's opinion was based, in part, on the fact that 

the foreman did not know the amount of air required at the end 

curtain. This factor, in and of itself, is insufficient to establish an S & S violation or an unwarrantable failure within the 

Commission decisions outlined above. 

Civil Penalty 

The statutory criteria to assess civil penalties is contained 

in 30 u.s.c. § 820(i). 

The stipulation of the parties addresses the size of the 

business of the operator and the effect of a penalty on its ability 

to continue in business. The company has an adverse prior history 

which is high: in the period ending September 3, 1986, the company 

incurred 571 violations and was assessed $68,141. The operator was 

negligent but the gravity of the violation was low since the violative condition existed only for a minimal period of time. The 

company's good faith is apparent in that the inspector interrupted 

the abatement effort. On balance, I deem a civil penalty of $200 

to be appropriate. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, I enter the following 

conclusions of law: 

lo Respondent violated 30 C.F.R. § 75.3160 

2o Citation 2823383 should be affirmed and a civil penalty 

assessedo 

ORDER 

Based on the foregoing facts and conclusions of law I enter 

the following order~ 

Citation 2823383 is affirmed and a penalty of $200 is 

assessed. 

... 

Law Judge 

1686 
Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Eighth Floor, Chicago, IL 60604 

(Certified Mail) 

Harry M. Coven, Esq., Gould & Ratner, 222 North LaSalle Street, 

Suite 800, Chicago, IL 60601 (Certified Mail) 

Mr. Larry G. Eubanks, United Mine Workers of America, Local 1591, 

1101 East Grayson, Benton, IL 62812 (Certified Mail) 

/ot 

1687 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE "00 

DENVER, COLORADO 80204 SEP 22 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UTAH POWER AND LIGHT COMPANY, 

Respondent 

UTAH POWER AND LIGHT COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 87-101 

A.C. No. 42-00121-03634 

: Docket No. WEST 87-207 

A.C. No. 42-00121-03644 

Deer Creek Mine 

CONTEST PROCEEDINGS 

Docket No. WEST 87-4-R 

: Citation No. 2504025; 9/3/86 

Docket No. WEST 87-5-R 

Citation No. 2504224; 9/3/86 

Docket No. WEST 87-6-R 

Citation No. 2504226; 9/3/86 

Docket No. WEST 87-7-R 

: Citation No. 2504227; 9/3/86 

Deer Creek Mine 

DECISION 

3efore; Judge Lasher 

Based on the Secretary's motion, Utah Power and Light 

Company agreeing, to vacate the four Citations involved in these 

consolidated penalty/contest proceedings, and good cause appearng therefor is ORDERED 

~" The Secretary's motion is GRANTED. 

2o Citation Nao 2504025 (Dockets WEST 87-101 and WEST 

7-4-R) and the three Citations involved in penalty Docket WEST 

87-207v 2504224 (Docket WEST 87-5-R)u 2504226 (Docket WEST 87-6-R 

and 2504227 (Docket WEST 87-7-R) are VACATED, and 

3. These proceedings are DISMISSED. 

~~;£4(£ 4,.~~~/1 Michael A. Lasher, Jr. 

Administrative Law Judge 

1688 
Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, NW, Washington, D.C. 20004-2505 (Certified Mail} 

Mr. Frank Fitzek, Miners' Representative, Utah Power and Light 

Company, P.O. Box 310, Huntington, UT 84528 (Certified Mail) 

/bls 

1689 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 23 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JAMES C. GRAY, JR., 

Complainant 

v. 

CHANEY CREEK COAL CORP., 

B. D. C. COAL CORPORATION, and 

WOODS CREEK CORPORATION, 

Respondents 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-55-D 

BARB CD 85-47 

ORDER APPROVING SETTLEMENT 

AND DISMISSING PROCEEDING 

Before: Judge Maurer 

On September 21, 1987, the Secretary submitted a settlement agreement, signed by all parties to this proceeding, including the individual complainant himself, for approval. 

By the terms of the settlement agreement, the respondents 

have agreed to pay to James C. Gray, Jr. 1 the total sum of 

$16,365 in full and complete settlement of his claim. There 

is no longer any issue of reinstatement in the case. Respondents have further agreed to expunge from Mr. Gray 1 s record 

any reference to his discharge in this case. The Secretary of 

Labor has agreed to waive pre-judgment interest and the civil 

penalty. 

I have considered the agreement in the light of the 

policies of the Act and conclude that it should be approved. 

Accordingly, the settlement agreement IS APPROVED, and, 

subject to the payment of the agreed amount, $16,365, to 

Complainant Gray, this proceeding IS DISMISSED. 

1690 
Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, u. s. De?artment of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203 

(Certified Mail) 

Julie Muth Goodman, Esq., Miller, Griffin & Marks, P.S.C., 700 

Security Trust Bldg., Lexington, KY 40507 (Certified Mail} 

Billy Don Chaney, B. D. c. Coal Corp., Rt. 1, Box ~a6-B, East 

Bernstadt, KY 40729 (Certified Mail) 

yh 

1691 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W, COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TIMBER LAKES CORPORATION, 

Respondent 

SEP 251987 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-250-M 

A.C. No. 42-01423-05503 

Triple C Gravel Pit 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Mr. Veigh Cummings, President, Timber Lakes 

Corporation, Murray, Utah, pro se. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges respondent with violating safety 

regulations promulgated under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seg., (the "Act"). 

After notice to the parties, a hearing on the merits took 

place on January 7u 1987 in Salt Lake City 5 Utah" The parties 

waived their right to file post-trial briefso 

Issues 

The issues are whether respondent violated the regulations; if 

sou what penalties are appropriateo 

Citations 

Respondent is charged with violating four safety regulations. 

Citation Noo 2644388 alleges a violation of 30 C.F.R. § 50.20. 

The regulationu in its pertinent partu provides as follows: 

1692 
SUBPART C - REPORTING OF ACCIDENTS, INJURIES, 

AND ILLNESSES 

§ 50.20 Preparation and submi~sion of 

MSHA Report Form 7000-1 - Mine Accident, 

Injury, and Illness Report. 

(a) Each operator shall maintain at the mine 

office a supply of MSHA Mine Accident, Injury, 

and Illness Report Form 7000-1. These may be 

obtained from MSHA Metal and Nonmetallic Mine 

Health and Safety Subdistrict Offices and from 

MSHA Coal Mine Health and Safety Subdistrict 

Offices. Each operator shall report each accident, occupational injury, or occupational 

illness at the mine. The principal officer in 

charge of health and safety at the mine or the 

supervisor of the mine area in which an accident 

or occupational injury occurs, or an occupational 

illness may have originated, shall complete or 

review the form in accordance with the instructions 

and criteria in§§ 50.20-1 through 50.20-7. If 

an occupational illness is diagnosed as being one 

of those listed in§ 50.20-6(b)C7), the operator 

must report it under this part6 The operator 

shall mail completed forms to MSHA within ten 

working days after an accident or occupational 

injury occurs or an occupational illness is 

diagnosed. When an accident specified in 

§ 50.10 occurs, which does not involve an occupational injuryu sections A, B, and items 5 

through 11 of section c of Form 7000-1 shall be 

completed and mailed to MSHA in accordance with 

the instructions in § 50.20-1 and criteria contained in §§ 50.20-4 through 50.20-6. 

Citation No" 2644389 alleges a violation of 30 C.F.R. 

§ 56.18020. The regulation provides as followsg 

§ 56.18020 Working alone 

No employee shall be assigned, or allowed, or 

be required to perform work alone in any area 

where hazardous conditions exist that would 

endanger his safety unless he can communicate 

with others, can be heard, or can be seen. 

1693 
Citation No. 2644390 alleges a violation of 30 C.F.R. 

§ 56.15002. The regulation provides as follows: 

§ 56.15002 Hard hats. 

All persons shall wear suitable hard hats when 

in or around a mine or plant where falling 

objects may create a hazard. 

Citation No. 2644391 alleges a violation of 30 C.F.R. 

§ 56.14029. The regulation provides as follows: 

§ 56.14029 Machinery repairs and maintenance. 

Repairs or maintenance shall not be performed on machinery until the power is off 

and the machinery is blocked against motion, 

except where machinery motion is necessary 

to make adjustments. 

Summary of the Evidence 

Richard H. White, a person experienced in mining, has been an 

MSHA inspector for 10 years. In May 1986 he inspected respondent, 

a sand and gravel operation (Tr. 8-10). 

The inspection occurred because Ray Caillouette, an employee, 

reported to the MSHA off ice that an accident had occurred. No 

report had been filed at the office prior to May Sv 1986 (Tro ll)o 

In checking at the site the inspector learned Caillouette had 

been struck in the head by a 24-inch pipe wrench when he was 

attempting to restart a tail pulley {Tr. 12, 13). After taking 

some measurements and photographs the inspector interviewed 

Caillouette (Tro 13u 14)o 

After the interview he contacted Dave Cummings, the foreman 

of the crusher operationo The inspector and Cummings then checked 

the equipmento Cummings did not know if the accident had been 

reported to MSHA" Caillouette was not back at work on May 6th; 

he was still having problems with his head and still under a 

doctorus care (Tr. 14 6 15)o 

1694 
The interview between Caillouette and the inspector formed the 

basis for the citations in the case CTr. 16). 

From his investigation the inspector concluded that on the 

date of the accident Caillouette, who had 22 years of experience, 

performed his routine duties. This included running the loader, 

filling the feed trays and crushing rock (Tr. 21, 54). 

During the day Cummings, the foreman, went into Salt Lake City 

for supplies (Tr. 21). No other person was at the site (Tr. 22). 

At about 4:00 p.m. the conveyor belt in front of the feed tray 

stopped (Tr. 22, Ex. P, P4). Caillouette went below the hopper 

which measures 17 inches from the outside wall to the structure of 

the conveyor belt. With the aid of a 24-inch pipe wrench and a 

four-foot cheater bar he tried to get the conveyor belt to move. 

The conveyor belt was not shut off or blocked; it moved and the 

pipe wrench struck him in the head (Tr. 23, 24, Ex. P4, P5). 

caillouette said he was unconscious for 15 to 20 minutes. 

Since his head was hurting he wanted to drive home. When he 

came to work the next day he again became dizzy and returned home 

(Tr. 25). Berg, who was present after the accident, is an independent truck driver hauling materials (Tr. 26). 

The first citation was written due to the operator's failure 

to report an accident within 10 days (Tr. 27>. MSHA Inspector 

Wilson had given Form 7001 to the operator two years before 

this accident occurred (Tr. 27). The citation was abated after 

the company filled out the MSHA form (Tr. 29). The inspector believed the failure to notify involved a high degree of negligence 

(Tr. 29). 

Caillouette stated he was working alone at the time of the 

accident; furtherv he had been working alone most of the day. 

The inspector also considered the work to be hazardous (Tr. 30). 

He was running the loader on a built-up bank1 also moving parts 

can be hazardous. In addition 1 the area below the feed trap was 

confined and very hazardous (Tr. 31). 

There was a telephone in the electrical control trailer van, 

about 75 feet from the feed trap area (Tr. 32). Caillouette also 

indicated it was a regular practice to work alone at that pit. 

The foreman also knew Caillouette was working alone (Tr. 33). 

1695 
The inspector considered the "working alone" citation to be an 

S & S violation. It was reasonably likely to cause an accident; if 

it happened it was reasonably likely to be serious. Both of these 

events came to pass (Tr. 34). 

Caillouette spent some time in the hospital and he was unable 

to work for a month (Tr. 35). Accordingly, the inspector felt the 

violation was reasonably likely to result in a reasonably serious 

injury (Tr. 35). The "working alone" citation involved a high 

degree of negligence because the practice was known to management 

(Tr. 35). 

Caillouette also related to the inspector that he was not 

wearing a hard hat at the time of the accident (Tr. 35). There 

could be falling objects in the area where he was working (Tr. 36, 

Ex. Pl, P2). The foreman indicated hard hats were available. 

A hard hat not only protects your head from falling objects but 

protects your head when going into low areas. Failure to wear a 

hard hat can cause head injuries, concussions and lacerations. 

Such injuries are serious (Tr. 37, 38). 

The Kolberg conveyor belt equipment had not been turned off 

(Tro 39 8 40, Ex. Pl, P3, PS). He was repairing the equipment to 

get it to run without turning it off or blocking it (Tr. 40). 

If the power had been deenergized, locked out, or blocked against 

movement, the accident would not have occurred. Caillouette and 

Dave Cummings said it was routine practice to start the conveyor 

belt by using a pipe wrench on the tail pulley without turning off 

the power (Tro 41). The inspector felt this was an S & S violation 

(Tr. 42) o Furtherv in his opinion the negligence was high (Tr. 43} o 

However the foreman stated he had instructed the men not to have 

'!:he power on when they tried to start the equipment (Tr. 43) o 

Respondent is a three-man sand and gravel operation (Tr. 44). 

The foremanv who was cooperativev immediately abated the violations 

Tr o 45 0 4 7) • 

The belt stopped because Caillouette placed an excessive 

amount of material on it (Tro 5l)o 

David Cummings and Veigh Cum.mings testified for respondent. 

David Cum.mings runs the company and does the excavation work. 

1696 
Mr. caillouette, 37 years old, worked for Timber Lakes about 

two and a half years (Tr. 76, 77, 79, 80). He was experienced in 

doing mechanical work and also works in the pit. On the day of the 

accident the County had been hauling gravel out of the pit all day 

(Tr. 77, 79) • 

Cummings talked to Caillouette the morning after the accident. 

He explained that when the belt stopped he left the power on and 

tried to restart it with a cheater pipe. Cummings did not see any 

visible signs of injury on the worker (Tr. 78). However, he did a 

little complaining; he also worked the next full day. 

The company has a strict rule prohibiting anyone from working 

on equipment with power on. The company's practice is to clean up 

such a problem with the power off (Tr. 80). Using a pipe wrench 

does not solve the problem because the buildup remains (Tr. 80). 

The company has made it clear to its employees that they do 

not work alone. Hard hats are available on the property (Tr. 82). 

They are required to be worn. 

The witness did not file a report of the accident. The 

citations were abated (Tr. 83). The pit has two or three workers 

most of the time (Tr. 84). 

One of the operator's complaints is that the company will 

have the pit in good shape with one inspector. But another 

inspector will cite the company for a violation previously passed 

over (Tr o 8 4 11 8 5 ) o 

Caillouette stated to the witness that he was wearing a hard 

hat at the time of the accident (Tr. 86). Caillouette was very 

reckless in the way he handled the situationo He should have first 

turned the power off before cleaning it out with a shovel (Tro 87) o 

Caillouette was hurt on a Wednesday and he received a drunk 

driving citation on Fridayo But he was a good, hard worker 

(Tro 90). 

The number of workers at the gravel pit varies from two to 

five (Tr. 93). The gravel is used in the company's cabin development and some is sold to the County. 

About 10,000 tons are crushed annually (Tr. 94). 

1697 
On previous occasions Caillouette had turned off the power 

before cleaning rock off of the equipment. Cummings had never 

seen Caillouette go in by himself without turning off the power 

(Tr. 100). Caillouette was also wearing a hard hat that morning. 

The next morning he said he got a bump on the head but it wasn't 

serious (Tr. 102). The witness told Caillouette he had done a 

foolish thing (Tr. 103). 

Veigh Cummings, the President and owner of Timber Lakes, 

indicated Ray Caillouette had been shot in the head in Viet Nam. 

When he was injured at the pit it affected his previous war injury 

(Tr. 115). 

The company felt that Caillouette was a willing worker 

(Tr. 116). 

The payment of a penalty would not make it impossible for the 

company to continue in business. The company holds safety meetings 

(Tr. 117). 

The company has also received previous MSHA citations. 

Evaluation of the Evidence 

MSHA Inspector White indicated that the operator did not 

report Ray Caillouette's accident. The event was known to the 

company. Further, David Cummings confirmed that no report was 

filed. Citation No. 2644388 should be affirmed. 

The three remaining citations are mainly based on the hearsay 

statement of Caillouette to the MSHA inspector. 

Concerning Citation Noo 2644389 (working alone)g the statement 

of Caillouette confirms that the employee was, in fact, working 

alone. David Cummingsu the foreman, had gone to Salt Lake City for 

supplies. The companyvs claim that it had a strict policy against 

employees working alone was certainly not followed. 

Citation Noo 2644389 should be affirmed. 

Concerning Citation No. 2644390 (hard hats): the statement 

of Caillouette was to the effect that he was not wearing a hard 

hato However 0 I credit the contrary evidence of David Cummings 

and Veigh Cummingso Hard hats were available and Caillouette 

even hunted deer while wearing one. This evidence indicates his 

dedication to the use of hard hats. 

Citation No. 2644390 should be vacated. 

1698 
The final citation, No. 2644391, involves the failure to shut 

off power or block off machinery against motion. The statement of 

Caillouette establishes the violative condition, and it is apparent 

that the accident would not have happened if the power had been 

shut off. cunnnings stated that Caillouette's acts were against 

company policy. However, the operator is strictly liable for 

violations of the Mine Act. Asarco, Incorporated-Northwestern 

Mining Department, 8 FMSHRC 1632 (1986). 

Citation No. 2644391 should be affirmed. 

An issue raised by respondent concerns the fact that one 

MSHA inspector will give respondent a "clean bill of health." 

But a later inspector will cite the company for a previously 

existing violation. Events of this type can occur because MSHA 

inspectors have varying degrees of expertise. A violative condition may be observed by one inPpector but not another. Further, 

the legal defense of estoppel does not lie against MSHA in these 

circumstances, Servtex Materials Company, 5 FMSHRC 1359, 1369 

(1983). 

CIVIL PENALTIES 

The statutory criteria for assessing a civil penalty is contained in Section llO(i) of the Act, now 30 u.s.c. § 820(i). It 

provides as follows: 

(i) The Commission shall have authority to assess 

all civil penalties provided in this Act. In 

assessing civil monetary penaltiesu the Commission 

shall consider the operator 1 s history of previous 

violations 0 the appropriateness of such penalty 

to the size of the business of the operator chargedv 

whether the operator was negligent, the effect on 

the operator's ability to continue in business, the 

gravity of the violation 0 and the demonstrated good 

faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

Concerning the operator 1 s history of prior violations it 

appears the company was assessed 10 violations for the two years 

ending May 5 0 19860 But no dollar amount has ever been assessed 

or been paido Accordingly, I consider that the operator has 

1699 
no adverse prior history CEx. P6). The company's tonnage and 

its maximum of five employees causes me to conclude that it is a 

small operator. Concerning negligence: the company could have 

reported the accident to MSHA as it knew about the event. The 

negligence in the "working alone" citation is high since the 

foreman should have known Caillouette would be alone if he left the 

site. The company's negligence is low in the last two citations: 

Caillouette's activities were contrary to company policy. The 

assessment of a civil penalty, according to the President, will not 

affect the company's ability to continue in business. The gravity 

of the violations is high inasmuch as severe injury could occur. 

Finally, the company demonstrated good faith in rapidly abating the 

violations. 

In view of the statutory criteria, I consider that the 

penalties set forth in the order of this decision are appropriate. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, I enter the following 

conclusions of law. 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated 30 C.F.R. § 50.20 and Citation 

No. 2644388 should be affirmed. 

3" Respondent violated 30 C.F.R. § 56.18020 and Citation 

Noa 2644389 should be affirmed" 

Respondent did not violate 30 CaFoRo § 56.15002 and 

Citation Noc 2644390 should be vacated" 

5" Respondent violated 30 C.F.R. § 56.14029 and Citation 

No" 2644391 should be affirmed" 

Based on the findings of fact and conclusions of law I enter 

the following~ 

1700 
ORDER 

1. Citation No. 2644388 is affirmed and a penalty of $50 is 

assessed. 

2. Citation No. 2644389 is affirmed and a penalty of $300 is 

assessed. 

3. Citation No. 2644390 and all penalties therefor are 

vacated. 

4. Citation No. 2644391 is affirmed and a penalty of $400 is 

assessed. 

5. Respondent is ordered to pay to the Secretary the sum of 

$750 within 40 days of the date of this decision. 

Distributiong 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Mro Veigh Cummingsv Presidentu Timber Lakes Corporatiofi, 4609 South 

State Streetv Murray, UT 84109 (Certified Mail) 

/ot 

1701 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 25, 1987 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

BRYANT M. HATFIELD, JR., 

Complainant 

v 0 

SMITH BROTHERS CONSTRUCTION, 

INC. , Respondent 

Docket No. WEVA 87-156-D 

HOPE CD-87-5 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This is a discrimination proceeding ar1s1ng under section 105(c) of the Federal Mine Safety and Health Act of 1977. 

30 U.S.C. § 815(c). On March 30, 1987, the Secretary of Labor, 

on behalf of the complainant, Bryant M. Hatfield, Jr., filed this 

complaint alleging violations of section 105(c)(l) of the Act. 

30 U.S.C. § 815(c)(l). 

The Secretary 1 s complaint alleged inter alia 1 that the Complainant was illegally discriminated aga1nst ~or about 

December 16 1 1986 1 when a foreman employed by the Respondent 

threatened him with physical harm because of complaints 

Mr. Hatfield expressed~ or intended to express, concerning preshift belt examinations at Respondent's No. l Mine. 

On August 59 1987 9 the Secretary and the Respondent, Smith 

Brothers Construction 9 Inc. 9 filed a joint motion to approve 

settlement for the violations involved in this case. The Complainant has signed a separate notice evidencing his approval of 

the settlement agreement. 

The joint motion to approve the settlement provides, in 

relevant part: 

Smith Brothers construction, Inc., admits 

that Bryant M. Hatfield, Jr., was illegally discriminated against, in violation of Section 105(c)(l) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(c)(l) 

1702 
(hereinafter "the Act"), on or about 

December 16, 1986 when a foreman employed by 

Smith Brothers Construction, Inc., threatened 

Mr. Hatfield with physical harm because of 

complaints Mr. Hatfield had made, or was 

intending to make, concerning preshift belt 

examinations at Respondent's No. 1 mine. 

* * * * * * 

Smith Brothers Construction, Inc., agrees to 

remove from Mr. Hatfield's employment records 

all adverse remarks about his having exercised his statutory right to file or make 

complaints alleging dangers on safety or 

health violations under the Act. 

Smith Brothers Construction, Inc., agrees to 

pay a civil penalty of $200.00 for its vio1 ation of Section 105(c) of the Act. This 

penalty is reasonable under the criteria set 

forth at Section llO(i) of the Act and will 

serve to effect the intent and purposes of 

the Act. The amount of this penalty is 

appropriate to the size of the business and 

the history of previous violations. The 

Respondent displayed a moderate degree of 

negligence in failing to prevent interference 

with Mr. Hatfield's exercise of his statutory 

rights. Respondent's management assigned 

extra duties to its foremen because of 

complaints made by Mr. Hatfield 9 but no precautions had been taken to protect 

Mr. Hatfield 1 s rights in this potentially 

volatile situation. Although Mr. Hatfield 

was not intimidated by the threat made by 

Respondent's foreman, it is reasonably likely 

that the four other miners who were present 

when this threat was made would be deterred 

from exercising their right to make or file 

complaints because of this action on the part 

of Respondent. Good faith was demonstrated 

by the foreman's subsequent verbal apology to 

Mr. Hatfield, and by the Respondent's 

decision not to arouse further animosity by 

contesting this matter. There has been no 

assertion by the Respondent that its 

continued ability to conduct business would 

be threatened by the payment of a civil 

penalty in this case. 

I accept the foregoing representations and approve the 

recommended settlement. Accordinglyr the joint motion to approve 

1703 
settlement is GRANTED and the operator is ORDERED TO PAY $200 

within 30 days from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Ronald E. Gurka, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Mr. Bryant M. Hatfield, Jr., General Delivery, Delbarton, WV 

25670 (Certified Mail) 

Mr. Sidney R. Young, Jr., President, Smith Brothers Construction, 

Inc., P. 0. Box 1518, Williamson, WV 25661 (Certified Mail) 

Mr. Richard C. Cooper, UMWA, P. 0. Box 839, Logan, WV 25601 

(Certified Mail) 

I g l 

1704 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 281987 

WESTMORELAND COAL COMPANY 

Contestant 

CONTEST PROCEEDING 

v. 

Docket No. HOPE 18-236 

Order No. 1 FTC; 2/10/78 . . SECRETARY OF LABOR, Hampton No. 4 Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

AND 

UNITED MINE WORKERS OF· 

AMERICA ( \JMWA), 

Intervenor 

. . 

. . 

ORDER LIFTING STAY AND DISMISSING PROCEEDINGS 

Contestant requests approval to withdraw its Contest in 

the captioned case based upon an agreement between Contestant 

and Respondent captioned "Statement of Modification and 

Agreement and Motion to Dismiss" filed by Respondent on 

August 11, 1987. The Intervenor has not filed any objection 

to the requested withdrawal. 

Under the circumstances hereinv permissi 

is granteda 29 CFR § 2700.lla The Stay Orde 

issued is accordingly now lifted and the case 

dismissed. 

l/ I . Gary M4 ick 

Admini~t 

(703) ~5 

\ 

1705 

withdraw 

, previously 

\. s therefore 
Distribution: 

C. Lynch Christian III, Esq., Jackson, Kelly Holt & 

O'Farrell, P.O. Box 553, 1500 One Valley Squaqre, Charleston, 

WV 25322 (Certified Mail) 

Mary Lu Jordon, Esq., United Mine Workers of America, 900 

15th St., N.W., Washington, D.C. 20005 '(Certified Mail) 

James Crawford, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

npt 

1706 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 291987 

RICHARD W. PETERS, SR., 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BUCKEYE INDUSTRIAL MINING 

COMP ANY I INC. I 

Respondent 

DECISION 

Docket No. LAKE 87-37-D 

MORG CD 86-19 

Appearances: Richard w. Peters, East Palestine, Ohio, pro se; 

John Orr Beck, Esq., Lisbon, Ohio, for Respondent. 

Before: Judge Maurer 

This case is before me upon the Complaint of Discrimination 

filed by Richard W. Peters Under Section 105(c) (3) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seq., the "Act," alleging that Buckeye Industrial Mining 

Company discriminated against him in employment after he had 

an accident on the job by returning him to work as a laborer 

at a reduced wage from that of a truck driver, which he was 

prior to the accident. 

The case was heard in Pittsburgh, Pennsylvania, on 

July 6v 1987. Both parties waived the filing of post-hearing 

s. 

The parties have stipulated that: 

1. Complainant has been an employee of the company since 

October 22, 19680 

2. During his employment, he has been employed as a 

laborer, pitman, "2400" dragline operator, truck driver, and 

for short periods as a bulldozer and highlift operator. 

3. On July 14, 1986, complainant was involved in an 

accident on the job when the truck he was driving rolled over. 

4. Following that accident, complainant was o work 

until on or about July 21, 1986, and then was returned to 

work as a laborer and pitman at a reduced wage (70¢ per hour 

less} from that of a truck driver. 

1707 
5. Complainant worked as a laborer-pitman until October 

1986. At that time he allegedly hurt his back on the job and 

has been off work from the date of that injury until at least 

the date of the hearing (July 6, 1987). 

The essence of this pro se complaint is that the respondent 

allegedly put the complainant-rn a lower-paying job on or about 

July 21, 1986, in violation of Section 105(c) (1) of the Act 1J 

in retaliation for him having the accident a week earlier, and 

for making repeated safety complaints about the brakes on the 

truck he was assigned to drive. The complainant further 

alleges that it was these faulty brakes that in fact caused 

the accident. 

The general principles governing analysis of discrimination 

cases under the Act are well settled. In order to establish a 

prima facie case of discrimination under Section 105(c) of the 

Act, a complaining miner bears the burden of proof in establishing that (1) he engaged in protected activity and (2) the adverse action complained of was motivated in any part by that 

protected activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd 

on other grounds sub nom. Consolidation Coal co. v. Marshall, 

663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette 

v. United Castle Coal Co., 3 FMSHRC 817-18 (April 1981). The 

operator may rebut the prima facie case by showing either that 

no protected activity occurred or that the adverse action was 

in no part motivated by protected activity. If an operator 

cannot rebut the prirna facie case in this manner, it nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

activi aloneo Pasulap supra~ Robinette, supra. See also 

Eastern Assoco Coal Corp. v. FMSHRC, 813 F.2d 639u 642 (4th 

Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 954, 

958-59 (D.C. 84); Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the commission's PasulaRobinette test}o Cf. NLRB v, Transportation Management Corp., 

397- (1983) (approving nearly identical test 

Labor Relations Act). 

1) Section lOS(c) (1) of the Act provides in pertinent part as 

follows: "No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of any miner ... in any coal or other mine subject to 

this Act because such miner ... has filed or made a complaint under or related to this Act, including a complaint notifying the 

operator or the operator's agent ... of an alleged da.nger or 

safety or health violation in a coal or other rnine •.. or because 

of the exercise by such miner ... on behalf of himself or others 

of any statutory right afforded by this Act." 

1708 
There is no question that Mr. Peters engaged in protected 

activity by repeatedly complaining to his foreman, Art Brown, 

about what he believed to be faulty and dangerous brakes on the 

truck he was assigned to drive. He made numerous complaints 

about the state of the brakes on his assigned truck in the two 

or three weeks prior to the accident. Each time his foreman 

would call maintenance and one of the mechanics would come out 

and check them. When the mechanic would get there, there was 

invariably nothing the matter with the·brakes. Foreman Brown 

and Peters both further testified that the driver pf the truck 

on the other shift, one Gene Liber, never complained about the 

truck's brakes and in fact denied having any problem when 

specifically asked about the brakes by Brown or Peters. Nevertheless, reading the record as a whole, I find that it is 

entirely possible that Peters was experiencing an intermittent 

problem with the truck's brakes, and, in fact, inadequate 

brakes may well have at least contributed to the July 14 accident. Accordingly, Mr. Pe'ters has established the first element of a prima facie .case of discrimination, i.e., he has 

shown to my satisfaction that he did indeed engage in protected 

activity. 

Foreman Brown testified that in every event, in response 

to every complaint, even though he was beginning to wonder 

about Peters' complaints, he called maintenance and had the 

brakes checked out and they always checked okay. Peters 

concurs with this testimony in substantial part. I also find 

Brown's testimony credible to the effect that he never told 

Peters to operate the truck without brakes or with bad brakes, 

but rather told Peters that if the brakes were bad, "take it 

to the parking lot and park it". I therefore find that 

Mr. Peters has failed to establish the second element a 

prirna facie casev that isu has not shown that the adverse 

action by the operator was motivated in any part by the protected activityo 

Even had Mr. Peters established a prima facie case herein, 

I find that case rebutted by the operator's evidence of valid 

non-protected business reasons for the removal of Mr. ?eters 

as an equipment operatoro Mr. Robert J. Bacha testi ed that 

the only p of equipment Peters was ever able to satisfactori operate for the company was a "2400" dragline, and that 

particular machine is no longer use. Thereafter Peters was 

tried out as a highlift operator, bulldozer operator and, 

lastly, as an end dump operator (truck driver). 

He had problems with operating the end dump truck independent of the July 14 accident as a result of which, according 

to Bacha, the company removed him from the truck driving job 

and re-assigned him as a laborer. After he had been operating 

the end dump for several months there were numerous complaints 

1709 
from both the other operators and foremen that ~e worked too 

slow, and that he would not back all the way up so as to dump 

over the hill. Rather, he would dump where the bulldozer had 

to follow-up after him and push his load off. Mr. Peters 

himself acknowledged on the record that "the trouble I had 

running some of the other equipment" might also have been 

part of the reason he was re-assigned. 

Specifically, I find the respondent's evidence credible 

to the effect that Peters was removed from his job,as a 

truck driver and re-assigned as a laborer due to his general 

lack of competence at running machinery. Therefore, the reassignment of Peters had a legitimate business-related and 

non-protected basis. Under the circumstances, the Complaint 

herein must be dismissed. · 

ORDER 

The Complaint of Discrimination herein is dismissed. 

stribution: 

(~ /1/l . . / .·' ; J / . // ... I/ t/ / tt-i·v~ Roy ,J. Maurer 

Ad~'strative Law Judge 

Richard Wo Peters, Sr., 5215 Jimtown Road, East Palestine, 

OH 44413 (Certified Mail) 

John Orr Beck, Esq., 26 N. Park Avenue, Lisbonv OH 44432 

(Certified Mail) 

yh 

1710 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 87-91 

A. C. No. 01-00328-03623 

Bessie Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties have filed a joint motion to approve settlements 

of the two violations involved in this case. The total of the 

originally assessed penalties was $272 and the total of the 

proposed settlements is $40. 

The motion discusses the violations in light of the six statutory criteria set forth in section llO(i) of the Federal Mine 

Safety and Health Act of 1977. The subject citations were issued 

for violations of respirable dust standards, 30 C,F,R, 

§ 70,lOO(a), Both violations were designated as significant and 

substantial on the citations, The parties represent that a reduction from the original assessment is warranted because the 

employees who were working in the designated occupation were 

wearing personal protective equipment in the form of respirators. 

The parties further represent that MSHA will modify the subject 

citations to delete the significant and substantial 

characterization. 

The rationale of the proposed settlements is justified by 

Commission precedent. Under Consolidation Coal Company, 8 FMSHRC 

890 (1986), aff 1 d, 824 F.2d 1071 (D.C. Cir. 1987), a rebuttable 

presumption ex s s that all respirable dust violations are signif- icant and substantial, However this presumption may be rebutted 

by establishing that miners in the designated occupation were not 

exposed to the hazard posed by the excessive concentration of 

respirable dust. The Commission specifically noted that the use 

of personal protective equipment would satisfy this evidentiary 

requirement. Based upon the representations of the parties, this 

appears to be a case where the presumption is rebutted. 

1711 
In light of the fact that the miners in this case were wearing personal protective equipment, I find the violations were 

nonserious and approve the proposed settlements. Accordingly, 

the motion to approve settlements is GRANTED and the operator is 

ORDERED TO PAY $4Q within 30 days from the date of this decision. 

~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, U. S. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter 

Resources, Inc., Post Office Box C-79, Birmingham, AL 35283 

(Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation, P. 0. Box 

22601, Tampa, FL 33622 (Certified Mail) 

I g l 

1712 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

JIM WALTER RESOURCES, INC., 

Contestant 

v ' 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 87-95 

A. C. No. 01-01247-03768 

No. 4 Mine 

CONTEST PROCEEDING 

Docket No. SE 87-56-R 

Order No. 2810626; 2/4/87 

No. 4 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

ORDER OF DISMISSAL 

Before: Judge Merlin 

The parties have submitted a joint motion to approve settlements of the three violations involved in this case. The total 

of the originally assessed penalties was $2,600 and the total of 

the proposed settlements is $1,900. 

The motion discusses the violations in light of the six 

statutory criteria set forth in section llO(i) of the Federal 

Mine Safety and Health Act of 1977, Order No. 2811815 was issued 

for a violation of 30 C.F.R, § 75.1403-7K because an employee was 

riding in the service cage while material was being transported 

therein. This penalty was assessed at $500 and the proposed 

settlement is for $350. The parties represent that a reduction 

from the original amount is warranted on the basis that gravity 

is less than originally assessed because the equipment being 

transported consisted of 2 ram bar assemblies. These assemblies 

are approximately 4 or 5 feet long and are approximately 10 

inches in diameter. The assemblies ~re also very heavy and 

1713 
therefore would not easily slide across the floor of the cage. 

Thus, the likelihood of a resulting injury is not as great as 

originally thought. I accept the foregoing representations and 

approve the recommended settlement. 

Order No. 2810449 was issued for a violation of 30 C.F.R. 

§ 75.200 because the approved roof control plan was not being 

complied with. The roof control plan requires that when fully 

grouted resin rods are used, that they shall be installed within 

8 hours after the coal is mined or loaded, or the area shall be 

supported with temporary supports. In this instance, the cutting 

of the faces was concluded on the day shift at approximately 3:00 

p.rn. The roof bolting machine then became disabled on the 

evening shift and prevented the commencement of bolting 

operations. The order was issued at approximately 1:00 a.m. on 

the night shift. Once the roof bolting machine was repaired, the 

operator bolted the No. 2 entry with resin pins and temporarily 

supported the No. 2 entry. This penalty was originally assessed 

at $1,100 and the proposed settlement is for $550. The parties 

represent that a reduction from the original amount is warranted 

because gravity is less than originally assessed in that the roof 

remained intact, even after ten hours of cutting, which permitted 

the proper installation of the resin bolts. I accept the foregoing representations and approve the recommended settlement. 

Order No. 2810626 was issued for a violation of 30 C.F.R. 

§ 75.303 because the operator failed to comply with pre-shift and 

on-shift inspection requirements. The operator has agreed to pay 

the originally assessed amount of $1,000. I approve this settlement and hereby DISMISS the corresponding Notice of Contest to 

this order, Docket No. SE 87-56-R. 

Accordingly, the joint motion to approve settlement is 

APPROVED and the operator is ORDERED TO PAY 11,900 within 30 days from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, U. S. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter 

Resources, Inc., Post Box C-79, Birmingham, AL 35283 (Certified 

Mai 1 ) 

1714