APRIL 1993 

COMMISSION DECISIONS AND ORDERS 

04-06-93 

04-22-93 

04-22-93 

04-26-93 

04-27-93 

04-30-93 

Energy West Mining company 

Martin Sales & Processing 

Steele Branch Mining 

M.A.G. Incorporated 

Clifford Meek v. ESSROC Corporation 

Peabody Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-02-93 

04-02-93 

04-05-93 

04-05-93 

04-06-93 

04-07-93 

04-07-93 

04-09-93 

04-09-93 

04-09-93 

04-12-93 

04-13-93 

04-13-93 

04-16-93 

04-16-93 

04-20-93 

04-22-93 

04-26-93 

04-29-93 

04-29-93 

04-30-93 

Spurlock Mining/Sarah Ash~ey Mining Co. 

Sec. Labor for Jerry Lee Dotson v. Lad 

Mining Inc., et al. (Partial Dec.) 

S & H Mining, Inc. 

Oneida coal Company 

Ernie Spaulding v. Madison Branch Mgmt. 

Delaware Valley Landscape Inc. 

Double "B" Mining, Inc. 

Cyprus Tonopah Mining Corp. 

Top Kat Mining, Inc.jW-P Coal Company 

Arrow Crushed Stone, Inc. 

Roy Farmer and others v. Island Creek 

Coal Company 

Sec. Labor for Samuel Coble v. Christian 

Coal Corporation 

Consolidation Coal Company 

Little Rock Company 

Fred L. Peters Vo Twentymile Coal Co. 

curtis Crick, et.al employed by 

Island Creek Coal Company 

Fred Knobel employed by FKC Incorporated 

Peabody Coal Company 

Varra Companies, Inc. 

Sec. Labor on behalf of Gerald Sapunarich 

v. Lehigh Portland Cement Co. 

Consolidation Coal Company 

WEST 91-83-R 

WEVA 92-1008 

WEVA 91-2077 

WEVA 92-1021 

LAKE 90-132-DM 

KENT 91-179-R 

KENT 92-380 

SE 

SE 

WEVA 

WEVA 

PENN 

SE 

WEST 

WEVA 

CENT 

VA 

KENT 

PENN 

CENT 

WEST 

KENT 

WEST 

KENT 

WEST 

92-181-D 

92-393 

92-986 

92-971-D 

92-523-M 

92-335 

90-363-RM 

92-746 

92-219-M 

91-56-C 

93-1-D 

92-771 

92-202-M 

92-311-D 

92-548 

92-375-M 

92-1107-R 

92-305-M 

YORK 93-65-DM 

WEVA 92-922 

Pg. 587 

Pg. 595 

Pg. 597 

Pg. 604 

Pg. 606 

Pg. 628 

Pg. 629 

Pg. 634 

Pg. 662 

Pg. 669 

Pg. 672 

Pg. 674 

Pg. 678 

Pg. 680 

Pg. 682 

Pg. 691 

Pg. 694 

Pg. 697 

Pg. 699 

Pg. 701 

Pg. 704 

Pg. 735 

Pg. 742 

Pg. 746 

Pg. 757 

Pg. 766 

Pg. 768 

APRIL 1993 

Review was granted in the following case during the month of April: 

Labor, MSHA v. U.S. Steel Mining Company, Docket No. 

(Judge Fauver, March 11, 1993) 

Review was denied in the following cases during the month of April: 

Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, Docket No. 

SE 92-249-R, etc. (Judge Fauver, March 10, 1993) 

of Labor, MSHA v. Peabody Coal Company, Docket No. KENT 92-748. 

ick, March 9, 1993) 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 6, 1993 

ENERGY WEST MINING COMPANY 

v. Docket No. WEST 91-83-R 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA) 

BEFORE: Holen, Chairman, Backley, Doyle and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This contest proceeding ar~s~ng under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), presents the 

question of whether Energy West Mining Company ("Energy West") was required to 

report to the Department of Labor's Mine Safety and Health Administration 

("MSHA"), pursuant to 30 C.F.R. § 50.20, an injury that occurred to a miner as 

he was driving his personal car on mine property on his way to work. 1 

Commission Administrative Law Judge Michael A. Lasher, Jr., upheld the 

1 The cited regulation provides, in pertinent part: 

§ 50.20 Preparation and submission of MSHA Report Form 

7000-l -- 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.... 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 .... 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 .... 

587 
citation. 13 FMSHRC 1164 (July 199l)(ALJ). For the reasons set forth below, 

we affirm the judge's decision. 

I. 

Factual and Procedural Background 

The parties in this proceeding stipulated to all the essential facts. 

The stipulations pertinent on review are as follows: 

4. Citation No. 3413924 (Joint Exh. 1.) was issued on 

November 1, 1990 by Inspector Robert L. Huggins, 

alleging that Energy West violated 30 C.F.R. § 50.20 

by failing to report an injury sustained by employee 

Donald Hammond in an automobile accident on mine 

property on Wednesday, October 3, 1990. 

6. At the time of the accident, Mr. Hammond was 

driving his own persona:l car on his way to work. He 

was injured when, after passing through the gate onto 

company property and driving uphill towards the 

parking lot, the engine of his car stalled and his 

brakes failed. The car rolled backwards down the road 

approximately 150 feet Joint Exhs. 3, 4) and 

turned on its side into a drainage ditch on the side 

of the road (see Joint Exhs. 5, 6). 

7. The accident occurred at 7:30a.m. as Mr. Hammond 

was on his way to report for his 8:00 a.m. shift at 

the mine. Mr. Hammond sustained a strained neck. 

8. After the accident, Mr. Hammond did not report to 

the 8:00 a.m. shift on Wednesday, October 3, 1990. He 

returned to work on Monday, October 8, 1990. 

9. At the time of the accident and at all times 

relevant to the subject Citation, the road was paved, 

in good repair v7ith guard rails on one side and a 

hillside on the other, and in substantially the same 

condition as the publicly maintained road leading to 

the entrance of the company property. 

10. The accident occurred in daylight during good 

weather conditions and clear visibility. 

11. The condition of the road was not the cause of 

the accident. 

12. Inspector Huggins was present at the Deer Creek 

Mine on the day of the accident and visited the 

accident site. He asked Deer Creek Safety Engineer 

Kevin Tuttle whether Energy West planned to report the 

588 
~nJury to the Mine Safety and Health Administration. 

In response, Mr. Tuttle stated his belief that the 

injury was not reportable, because it occurred while 

Mr. Hammond was on his way to work, not while he was 

on the job, and involved Mr. Hammond's personally 

owned vehicle. Inspector Huggins informed Mr. Tuttle 

that he would check to see whether MSHA thought the 

injury was reportable. 

13. Shortly thereafter, Inspector Huggins informed 

Mr. Tuttle that the injury was reportable. On 

November 1, 1990, Inspector Huggins issued the subject 

Citation when no accident report was forthcoming. To 

abate the alleged violation, Mr. Tuttle then completed 

MSHA Form 7000-1 (Joint Exh. 2) on November 1, 1990 

and mailed it to the MSHA Health and Safety Analysis 

Center, and Inspector Huggins terminated the Citation. 

The citation charged Energy West with a non-significant and substantial 

violation of section 50.20 and, as modified, high negligence. 2 The 

Secretary has not alleged that Energy West was responsible for, or contributed 

to, the conditions that lead to Hammond's injury. 

Energy West filed a notice of contest of the citation and the matter was 

submitted to Judge Lasher on stipulated facts. After noting that Hammond's 

injury was not the result of an "accident," as that term is defined by section 

50.2(h), the judge evaluated whether Hammond's injury fit within the 

definition of "occupational injury" as defined by section 50.2(e). 3 The 

judge determined that the stipulations established that Hammond was a miner 

who, while at the mine, suffered an injury resulting in his inability to 

perform all his job duties. 13 FMSHRC at 1171. The judge concluded, based on 

these undisputed facts, that Hammond suffered an "occupational injury" as 

2 

3 

The citation the following violation: 

A[n] accident occurred to Donald Hammond on 10-3-90 and 

a 7000-1 form was not submitted to the MSHA 

Health and Analysis Center in Denver, Colorado. 

Mr. Hammond was involved in an automobile accident that 

occurred on mine property and Mr. Hammond failed to 

report to his next shift of work. Mr. Hammond returned 

to work on 10 8-90. 

Section 50.2(e) provides: 

Occupational injury means any ~n]ury to a miner which 

occurs at a mine for which medical treatment is 

administered, or which results in death or loss of 

consciousness, inability to perform all job duties on 

any day after an injury, temporary assignment to other 

duties, or transfer to another job. 

589 
defined in section 50.2(e) and that Energy West was required to report this 

occupational injury to MSHA pursuant to section 50.20. He rejected Energy 

West's contention that the injury was not reportable because of the lack of a 

"causal nexus" to Hammond's work at the mine. The judge based this conclusion 

on the Commission's decision in Freeman United Coal Mining Co., 6 FMSHRC 1577 

(July 1984). 13 FMSHRC at 1172. The Commission granted Energy West's 

Petition for Discretionary Review and permitted the American Mining Congress 

("AMC") to file an amicus curiae brief. 

II. 

Disposition of the Issues 

The Secretary interprets section 50.20 to require each mine operator to 

report to MSHA all injuries that occur at the operator's mine site, including 

injuries that are not directly work-related. Energy West 4 objects to that 

approach and argues that, since it is undisputed that Hammond's injury was not 

work-related, reporting the injury to MSHA was not required. 

Energy West argues that the Secretary's interpretation of the injury 

reporting provisions exceeds the scope of the Mine Act because his 

interpretation requires mine operators to report non-work-related injuries to 

MSHA under section 50.20. Energy West also argues that the Secretary's 

interpretation of the regulation is unreasonable because it conflicts with the 

overall purposes of Part 50 and leads MSHA to calculate inherently flawed 

rates of injury occurrence ("incident rates"). It argues that, the 

information gathering provisions of Part 50 were developed so that incident 

rates could be calculated by the Secretary pursuant to section 50.1. It 

maintains that, by requiring mine operators to report non-work-related 

injuries that occur before or after the miners' shifts, while prohibiting 

operators from including such off-shift time as part of the total number of 

employee hours worked under section 50.30-l(g)(3), MSHA calculates an incident 

rate under section 50.1 that is "flawed and untrustworthy for its intended 

purpose." AMC Br. lO. 

Energy West relies heavily on the regulatory history of Part 50 to 

support its position. It argues that when the Department of the Interior 

("Interior") consolidated injury reporting in Part 50 it did not "sever the 

existing linkage between work-related injuries and the filing of reports." 

AMC Br. 16. It argues that the preambles to the proposed and final rule are 

devoid of any statement or indication" that "a dramatic substantive change" 

was being made "that would require, for the first time, the reporting of nonwork-related, as well as work-related, injuries." AMC Br. 17. Energy West 

points to language in the preamble to the final rule stating that MSHA "seeks 

data only respecting injuries whose occurrence rate it can affect and 

diminish." E.W. Br. 21; AMC Br. 18. Energy West contends that the Commission 

should reconsider its decision in Freeman. 

4 Unless otherwise noted, the arguments of the AMG are included in our 

discussion of Energy West's position. 

590 
In Freeman, the Commission concluded that section 50.20 requires 

operators to report to MSHA certain injuries that occur to miners at mines. 

6 FMSHRC at 1579. The Commission held that "sections 50.2(e) and 50.20(a), 

when read together, require the reporting of an injury if the injury -- a hurt 

or damage to a miner -- occurs at a mine and if it results in any of the 

specified serious consequences to the miner." 5 Id. The Commission 

determined that the Secretary's regulations "do not require a showing of a 

causal nexus" between the injury and the miner's work. Id. The Commission 

also indicated that the definition of occupational injury in section 50.2(e) 

and the regulatory history of that section "control in construing the related 

reporting requirement of section 50.20(a)." Id. Finally, the Commission 

concluded that the Secretary's interpretation of section 50.20(a) "is 

consistent with and reasonably related to the statutory provisions under which 

it was promulgated." 6 FMSHRC at 1580. 

In Consolidation Coal Co., 14 FMSHRC 956 (June 1992)("Consol"), the 

Commission examined MSHA's calculation of incident rates under Part 50. 6 The 

operator in that case had reported to MSHA the total amount of time that it 

estimated miners were present at its mine, not simply the hours worked. It 

argued that MSHA's Part 50 reporting requirements, as interpreted by the 

Secretary, leads MSHA to calculate inaccurate incident rates. The Commission 

determined that mine operators are required to report to MSHA, as "total 

employee-hours worked" under section 50.30-l(g)(3), the number of employeehours reflected in the operators' payroll records and that operators are not 

permitted to add to those hours the time miners spend on mine property before 

and after their shifts. 14 FMSHRC at 966 68. The Commission noted that the 

"incident rates calculated by MSHA are flawed because the injury and accident 

information that mine operators are required to submit does not correlate with 

the data that mine operators must report for employee hours worked." 14 

FMSHRC at 968. The Commission held, however, that any flaws in MSHA's 

calculation of incident rates did not excuse Consol's violation of the 

regulation: 

Incident rates provide a general picture of the safety 

record of a mine operator. The assertion that MSHA's 

method of calculating incident rates is less than 

perfect or that there may be better methods does not 

5 As set forth in section 50.2(e), an injury with serious consequences is 

one "for which medical treatment is administered, or which results in death or 

loss of consciousness, inability to perform all job duties on any day after an 

injury, temporary assignment to other duties, or transfer to another job." 

Hammond's injuries resulted in at least one of these serious consequences because 

he was unable to work on the day after the accident. Stip. 8. 

6 MSHA calculates the incident rate for a mine by dividing the total number 

of occupational injuries, occupational illnesses and accidents reported in a 

calendar quarter (multiplied by a constant: 200,000) by the total number of 

employee-hours worked during the quarter. 30 C.F.R. § 50.1; Consol, 14 FMSHRC 

at 959. 

591 
excuse mine operators from complying with the data 

submission requirements of Part 50. 

14 FMSHRC at 969. 

We have reviewed again the relevant prov1s1ons of Part 50 and the 

regulatory history and we decline to overrule or modify our holding in Freeman 

as urged by Energy West. 7 We hold that, despite the fact that the regulation 

requires the reporting of injuries that are not directly work-related, MSHA's 

injury reporting requirements in section 50.20(a) do not exceed the 

Secretary's broad authority to obtain from mine operators information relating 

to safety conditions and the causes of accidents. See section 103 of the Mine 

Act, 30 U.S.C. § 813. 

As stated in Consol, the Commission's task is not to devise the best 

method of monitoring injuries sustained by miners but to determine whether the 

Secretary's method, as implemented by the regulations, is reasonable. 14 

FMSHRC at 969. The Secretary uses a mine site test for reportable injuries. 

As a consequence, a work-related inj-ury that occurs off mine property is not 

reportable, while a non-work-related injury that occurs on mine property is 

reportable. While such reporting requirements do not focus precisely on 

injuries that MSHA may seek to diminish, the requirements are not so arbitrary 

as to be unreasonable. 6 The Secretary's geographic approach is consistent 

with the jurisdiction conferred upon him under section 3(h)(l) of the Mine 

Act, 30 U.S.C. § 802(h)(l), which defines "coal or other mine" in geographic 

terms. 9 Moreover, it is not unreasonable for the Secretary to require the 

7 The statement in the preamble to the final rule, that MSHA sought only 

data concerning "injuries whose occurrence rate it can affect and diminish," 

relates to Interior's rejection of a suggestion that work-related injuries that 

occur off mine property should be reported. 42 Fed. Reg. 65, 534 (December 30, 

1977). In response to that comment, the Secretary stated that he did not have 

jurisdiction over injuries that occur off mine property "regardless of whether 

the injured miner was engaged in his employer's business at the time of the 

injury." Id. Thus, the statement in the preamble relied on by Energy West does 

not suggest that the Secretary intended to exempt mine operators from reporting 

non-work-related injuries that occur on mine property. 

8 The Secretary argues that reportable, non-work-related 1nJuries "are rare 

events" that occur infrequently. S. Br. 34. We note that Energy West did not 

present any evidence to show that it has experienced a significant number of such 

injuries at its mine. 

9 Section 3(h)(l) of the Mine Act states in pertinent part: 

"coal or other mine" means (A) an area of land from 

which minerals are extracted ... , (B) private ways and 

roads appurtenant to such area, and (C) lands, 

excavations, underground passageways, shafts, slopes, 

tunnels and workings, structures, facilities, equipment, 

(continued ... ) 

592 
reporting of all designated injuries at mines so that MSHA can decide whether 

an investigation of the injury is necessary or whether regulatory action is 

indicated. 10 The cause of an injury may not be obvious and MSHA may need to 

evaluate whether it should seek to reduce the risk of similar injuries. In 

section 103 of the Act, 30 U.S.C. § 813, Congress granted to the Secretary 

broad investigation and information gathering authority. MSHA would abdicate 

its responsibilities under the Act were it to rely solely on the mine 

operator's determinations, as urged by Energy West, that an injury was not 

work-related. 

We have determined that the Secretary's requirement that injuries 

occurring at mines be reported to MSHA is reasonable, in part, because such 

injury reports enable MSHA to obtain a comprehensive overview of the safety 

and health conditions at each mine. As in Consol, however, we are concerned 

that the goal of improving mine safety can be unnecessarily compromised when 

MSHA's injury statistics are inaccurate. In our view, the purposes of the 

Mine Act would be better served if the Secretary, in calculating incident 

rates, were to exclude injuries that are not work-related. 

9 (, .. continued) 

machines, tools, or other property including 

impoundments, retention dams, and tailings ponds, on the 

surface or underground, used in, or to be used in, or 

resulting from, the work of extracting such minerals 

from their natural deposits .... 

10 If an operator believes that an injury is not work-related, it may state 

its belief in the report submitted to MSHA. Section 9 of the reporting form 

(MSHA Form 7000-1) requires an operator to "Describe Fully the Conditions 

Contributing to the Accident/Injury/Illness." The Secretary's criteria at 

section 50.20-6(a)(3) direct operators to "[d]escribe what happened and the 

reasons therefore" and to "clearly specify the actual cause or causes of the ... 

injury." 

593 
III. 

Conclusion 

For the foregoing reasons, the judge's decision is affirmed. 

Distribution 

Thomas C" Heans, 

J. Michael Klise, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W., Suite 500 

Washington, D.C. 20006 

Arlene Holen, Chairman 

Richard V. Backley, Commissioner ~ 

L. Clair Nelson, Commissioner 

for Amicus, American Mining Congress 

Administrative Law Judge Michael A. Lasher, Jr. 

Federal Hine Safety & Health Review Commission 

280 Federal Building 

1244 Speer Blvd. 

Denver, Colorado 80204 

594 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MARTIN SALES & PROCESSING 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON. D.C. 20006 

April 22, 1993 

Docket Nos. WEVA 92-1008 

WEVA 92-1096 

WEVA 92-1097 

WEVA 92-1108 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In these civil penalty proceedings ar~s~ng under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), 

Commission Administrative Law Judge George Koutras issued Summary Default 

Decisions ("default decision") on March 29, 1993, finding respondent Martin 

Sales & Processing ("Martin") in default for failing to respond to discovery 

requests served by the Secretary of Labor and to the judge's February 25, 

1993, order to show cause. The judge assessed civil penalties of $32,166 as 

proposed by the Secretary. For the reasons that follow, we vacate the default 

order and remand this case for further proceedings. 

The judge's jurisdiction over this case terminated when his decision was 

issued on March 29, 1993. 29 C.F.R. § 2700.65(c). On April 8, 1993, the 

judge received from Martin's attorney a Motion to Alter, Vacate, or Amend the 

default decision. Martin asserts that it had timely filed a response, dated 

March 8, 1993, to the judge's show cause order. Martin does not assert that 

it mailed the response by certified or registered mail, return receipt 

requested, and the Commission's records do not indicate receipt of Martin's 

response to the show cause order. 

Under the Mine Act and the Commission's procedural rules, relief from a 

judge's decision may be sought by filing a petition for discretionary review 

with the Commission within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29 

C.F.R. § 2700.70(a). We will treat Martin's motion as a timely filed petition 

for discretionary review of the decision. See, ~. Middle States Resources, 

Inc., 10 FMSHRC 1130 (September 1988). 

It appears that Martin may have attempted to respond to the judge's show 

cause order. The Commission has noted "under appropriate circumstances a 

595 
genuine problem in communication or with the mail may justify relief from 

default." 10 FMSHRC at 1131, quoting~.~.=-·='-'-

, 9 FMSHRC 989, 990 (June 1987). We are unable, however, to evaluate the 

merits of Martin's explanation on the basis of the present record. We will 

afford Martin the opportunity to present its position to the judge, who shall 

determine whether default is warranted. 

Accordingly, we grant Martin's petition for discretionary review, vacate 

the judge's default decision, and remand this matter for proceedings 

consistent with this order. 

Distribution 

J. Thomas Hardin, Esq. 

Hardin Law Offices 

PoO. Box 1416 

Inez, Kentucky 41224 

Winford Davis, President 

Hartin Sales & Processing 

P .0. Box 728 

Kermit, WV 25674 

Carol B. Feinberg, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Holen ,

1 

Chairman 

L. Clair Nelson, Commissioner 

Administrative Law Judge George A. Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

596 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 22, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket Nos. WEVA 91-2077 

WEVA 91-2123 

STEELE BRANCH MINING 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.G. § 801 et seq. (l988)("Mine Act" or "Act"). It 

involves a dispute between the Secretary of Labor and Steele Branch Mining 

("Steele Branch") regarding two citations alleging violations of 30 C.F.R. 

§§ 77.404(a) 1 and 50.ll(b). 2 Following an evidentiary hearing, Commission 

2 

30 C.F.R. § 77.404 provides, in relevant part: 

(a) J>iobile and stationary machinery and equipment 

shall be maintained in safe operating condition and 

machinery or equipment in unsafe condition shall be 

removed from service immediately. 

30 C.F.R. § 50.11 provides, in relevant part: 

* * 

(b) Each operator of a mine shall investigate each 

accident and each occupational injury at the mine. Each 

operator of a mine shall develop a report of each 

investigation. No operator may use Form 7000-1 as a 

report, except that an operator of a mine at which fewer 

than twenty miners are employed may, with respect to 

that mine, use Form 7000-1 as an investigation report 

respecting an occupational injury not related to an 

accident. No operator may use an investigation or an 

investigation report conducted or prepared by MSHA to 

597 
Administrative Law Judge Avram Weisberger found that Steele Branch violated 

both provisions and that its violation of section 77.404(a) was significant 

and substantial ("S&S"). 3 14 FMSHRC 871 (May 1992)(ALJ). The Commission 

granted Steele Branch's petition for discretionary review, which raises the 

following issues: (l) whether the operator violated section 77.404(a) because 

270 to 300 degrees of slack existed in the steering wheel of a road grader, 

measured while the grader was not in operation; and (2) whether the operator 

violated section 50.ll(b) when it did not promptly submit an accident 

investigation report upon the request of the Department of Labor's Mine Safety 

and Health Administration ("MSHA"). For the reasons set forth herein, we 

affirm the judge's conclusion on the first issue and reverse his conclusion on 

the second. 

I. 

Factual and Procedural Background 

Steele Branch, which is owned by the Geupel Construction Company, 

operates a surface coal mine in Logan County, West Virginia. On April 23, 

1991, MSHA inspected Steele Branch following a fatal accident. Rayburn 

Browning operated the No. 9 road grader used to maintain a haulage road at the 

mine. The grader's engine had stalled on a hill and the grader began rolling 

backwards. Unable to control the vehicle, Browning jumped off, and the grader 

ran over him. 

MSHA Inspector Donald Mills inspected the grader and observed that there 

was between 270 and 300 degrees of slack in the steering wheel. The inspector 

did not test the slack while the grader was operating. Inspector Mills issued 

a citation, alleging a violation of section 77.404(a). The citation stated 

that the road grader "was not maintained in a safe operating condition[] in 

that excessive slack was present at the steering wheel .... "4 The inspector 

determined that the violation was S&S. 

comply with this paragraph. An operator shall submit a 

copy of any investigation report to MSHA at its 

request .... 

3 The S&S terminology is taken from section 104(d)(l) of the Act, 30 

U.S.C. § 8l!+(d)(l), which distinguishes as more serious in nature any violation 

that "could significantly and substantially contribute to the cause and effect 

of a mine safety or health hazard .... " 

'' This citation also alleged that the grader's primary fuel filter was 

not properly installed. The judge determined that the Secretary had failed to 

establish that the inoperative primary filter violated the safety standard 

because the secondary filters on the vehicle would have adequately "screened and 

trapped" any contaminants and that, as a consequence, the grader was in safe 

operating condition as to its fuel-filtering system. 14 FMSHRC at 872-73. The 

Secretary did not seek review of this finding. 

59 8 
That same day, another MSHA Inspector, James E. Davis, requested that 

Steele Branch prepare an investigation report of the accident, as required by 

section 50.ll(b). On April 24 and 26, Inspector Davis reiterated his request. 

On April 29, he spoke with Mark Potnick, the Steele Branch official in charge 

of safety. Potnick described to Davis the preventive measures that Steele 

Branch planned to take to avoid such an accident in the future. MSHA made 

follow-up requests for the written report on May 8 and 9. 

On May 13, MSHA cited Steele Branch, alleging an S&S violation of 

section 50.ll(b), for its failure to submit an accident investigation report. 

The citation stated: 

During and after the investigation of a fatal accident 

at this mine several requests were made to the 

operator for a copy of the required Company 

investigation report and a description of steps taken 

to prevent a similar occurrence in the future. The 

requests were made to the mine management on April 23, 

24, 26, May 8 and 9, 1991. The requests have not been 

complied with as required by 30 C.F.R. § 50.ll(b). 

MSHA proposed a special assessment of $500 for the operator's failure to 

provide the report. Steele Branch submitted the accident report on May 16. 

The report reiterated the measures described by Potnick to Davis to prevent a 

recurrence of the accident. 

Steele Branch's contests of the citations were consolidated for hearing. 

In concluding that Steele Branch violated section 77.404(a) and that the 

violation was S&S, the judge found that the grader in question was not in safe 

operating condition due to excessive play in the steering wheel. 14 FMSHRC at 

874. In concluding that Steele Branch violated section SO.ll(b), the judge 

found that it failed to submit an investigation report in spite of numerous 

requests by MSHA. 14 FMSHRC at 875-76. The judge concluded, however, that 

the latter violation was not S&S. As a consequence, he assessed a penalty of 

$10, rather than $500 proposed by the Secretary. 14 FMSHRC at 877. 

II. 

A. 

Steele Branch asserts that, because the grader was equipped with 

"hydraulic steering," slack is always present when its engine is off and that 

such slack is eliminated when the grader is running. Thus, MSHA's inspection 

of the steering wheel was deficient because the grader was not operated during 

the inspection. Steele Branch relies primarily on the testimony of Edward 

Casto, an independent mechanic who operated the grader within a few hours 

after the accident. Casto testified that he noticed "some play, but not any 

great amount" when he operated the grader up a hill. Tr. 261, 262. Steele 

Branch also points out that Wiley Queen, its head mechanic, drove the grader 

sometime prior to the accident and did not perceive excess slack. After the 

599 
accident, Queen replaced all loose parts in the steering and testified as 

follows: "To me it wasn't that loose ... to cause it to be unsafe to 

operate." Tr. 215. 5 

The judge concluded that the steering wheel exhibited approximately 270 

to 300 degrees of slack when the engine was off and that such slack was 

"clearly evidence of play in the steering wheel to a more than non-significant 

degree when the engine is on." 14 FMSHRC at 874. The judge determined that 

Steel Branch violated 30 C.F.R. § 77.404(a) based on excessive slack in the 

steering, and on the fact that the grader was being operated on a road 

containing curves and an eight to nine percent grade. Id. 

The Commission is bound by the Mine Act to apply the substantial 

evidence test when reviewing an administrative law judge's decision. 30 

U.S.C. § 823(d)(2)(A)(ii)(I). The term "substantial evidence" means "such 

relevant evidence as a reasonable mind might accept as adequate to support [a] 

conclusion." See,~. Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 

(November 1989) quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938). We are guided by the settle,q principle that, in reviewing the whole 

record, an appellate tribunal must also consider anything that "fairly 

detracts" from the weight of the evidence that may be considered as supporting 

a challenged finding. Uniyersal Camera Corp. v. NLRB, 340 U.S. 474, 488 

(1951). Considering the record before us, we conclude that substantial 

evidence supports the judge's determination that the steering wheel exhibited 

excessive play, thereby making the grader unsafe to operate. 

Inspector Mills' testimony that, on the day of the accident, slack of 

between 270 and 300 degrees existed in the steering wheel of the road grader 

was uncontradicted. Tr. 87. William Roberts, Steele Branch's equipment 

manager, testified that steering play when the engine is off should amount to 

no more than 120 degrees. Tr. 378, 394. He further testified that 270 

degrees of slack in the steering mechanism when the grader was off would be 

considered "excess " Tr 395. Inspector Hills also testified that the 

haulage road was hilly with narrow curves and that excessive slack could delay 

movement of the wheels toward the direction turned and, consequently, result 

in an accident. Tr. 88-91. 

5 Steele Branch also argues that the deceased miner had an excellent 

safety record and, if excess slack in fact existed, he would have noticed it 

during his pre-shift equipment inspection. Steele Branch further argues that, 

to the extent that Browning failed to adequately inspect the grader, his 

negligence should not be imputed to Steele Branch. The latter argument is 

vlithout merit. The Commission has held repeatedly that an operator is liable for 

violations of mandatory standards committed by its employees. Asarco, Inc., 8 

FMSHRC 1632, 1634 (November 1986); Southern Ohio Coal Co., 4 FMSHRC 1459, 1462 

(August 1982). In any event, the judge determined that Steele Branch's evidence 

that Browning was a careful employee who would not have operated the grader if 

it was unsafe was "insufficient to contradict or impeach the specific testimony 

of Mill [ s] that, on April 23, 1990, when he tested the steering there was between 

270 to 300 degrees of play." 14 FMSHRG at 874. 

600 
In addition to challenging the evidentiary support to the judge's 

finding of a violation of the regulation, Steele Branch contends that the 

regulation addresses only "the condition of the ... vehicle while it is 

operating." SB Br. 8, 10. Steele Branch notes that the grader was not in 

operation when Mills inspected it. There is no dispute, however, that the 

grader was operating at the time of the accident and Steele Branch has not 

asserted that the slack detected by MSHA was caused by the accident. The 

judge concluded, and we have affirmed as supported by substantial evidence, 

that "play in the steering wheel of approximately 270 degrees when the engine 

is off, is clearly evidence of play in the steering wheel to a more than nonsignificant degree when the engine is on." 14 FMSHRC at 874. 

B. Violation of Section SO.ll(b) 

Steele Branch argues that the regulation does not set a specific time 

for the submission of an accident investigation report. It maintains that, as 

a consequence, reports must be submitted within a reasonable time, and that 

its submission met this requirement. We agree, and reverse the judge's 

finding of a violation. 

The judge found that Steele Branch violated that part of section 

SO.ll(b) requiring operators to "submit a copy of any investigation report to 

MSHA at its request." The evidence established that MSHA had made numerous 

requests for a report. Although the judge credited Steele Branch's evidence 

that the "delay" was reasonable under the circumstances, he determined that 

Steele Branch's evidence was "insufficient to rebut the Petitioner's case that 

by [the date of the citation], Respondent had failed to submit a copy of its 

investigation report in spite of numerous requests by MSHA." 14 FMSHRC at 

876. Nevertheless, because the judge found that Steele Branch's delay in 

submitting the report was reasonable, he held that Steele Branch was not 

negligent and reduced the penalty from $500 to $10. 14 FMSHRC at 876-77. 

Section 50.11(b) requires operators to investigate all accidents and to 

"develop a report" of each investigation. A copy of the report must be 

submitted "to MSHA at its request," but no period of time is specified in the 

regulation, or indicated in the regulatory history or in MSI!A's policy guide. 

The Commission has not previously addressed the issue of the time allowed for 

submission of a report pursuant to this standard. Under the judge's approach, 

an operator violates the regulation if it fails to submit an investigation 

report upon MSI!A's demand, even if there are legitimate reasons why the report 

has not been completed and, therefore, is not ready for submission. Under 

this interpretation, operators could be forced to prepare reports hastily in 

order to comply with the regulation, to the detriment of accuracy and 

thoroughness. 

Where a standard is silent as to the period of time required for 

compliance, the Commission has imputed a reasonable time. In Penn Allegh Coal 

3 FMSHRC 2767, 2771 (December 1981), the Commission noted that it is 

implicit in a roof control plan that the operator has a reasonable time to 

file a plan. In 5 FMSHRC 1010, 1019 (June 1983), the 

Commission imputed a reasonable time for the operator to submit a revised 

engineering plan. Further, in Old Ben Coal Co., 3 FMSHRC 608, 610 11 (March 

601 
1981), the Commission interpreted a standard requLrLng a foreman to 

countersign a weekly hazardous conditions report as allowing a reasonable 

period for such signing. 

Consistent with this approach, we conclude that section 50.ll(b) 

requires operators to submit an accident investigation report within a 

reasonable period of time after MSHA's request, taking into consideration the 

specific circumstances. Factors pertinent to whether the operator complied 

with the section within a reasonable time may include the volume and 

complexity of information to be reviewed, and the circumstances surrounding 

the preparation and submission of the report. Such an approach accords with 

the purpose of the regulation, which is to "ensure that operators are in fact 

investigating accidents and injuries and are engaged in constant upgrading of 

health and safety practices." 42 Fed. Reg. 65534 (December 30, 1977). 

We believe the evidence shows that Steele Branch responded in a 

reasonably timely manner in submitting its report. Inspector Davis issued the 

citation just 14 working days after the accident and 10 working days after 

MSHA completed its accident inspection. The judge found that Steele Branch 

had orally informed MSHA, six days after the accident, of the critical portion 

of the investigation report, i.e., 'the preventive steps Steele Branch would 

take to avoid a similar accident. 14 FMSHRC at 876-77. Additionally, he 

found that the operator acted in good faith in submitting the report in midMay. He further found that Steele Branch's delay was caused by its thorough 

compilation of the facts relating to the accident, by its company policy 

requiring supervisory review of such reports and by a death in the family of 

the employee preparing the report. 14 FMSHRC at 876. The judge determined 

that Steele Branch's failure to submit the report by May 13 was justified 

under the circumstances. He held that Steele Branch was not negligent and he 

reduced the penalty from $500 to $10. 14 FMSHRC at 876-77. 6 We rely upon 

the judge's findings of fact in reaching the conclusion that Steele Branch 

submitted its report within a reasonable time following MSHA's request and, 

therefore did not violate the regulation. 

6 We note that MSHA's accident investigation report of the Browning 

accident was not completed until September 1991, four months after Steele Branch 

submitted its report. Tr. 62. 

602 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's decision with regard to 

30 C.F.R. § 77.404(a), but reverse his conclusion that Steele Branch violated 

30 C.F.R. § SO.ll(b). 

Distribution 

Roger L. Saba, Esq. 

Schottenstein, Zox & Dunn 

41 South High Street 

Suite 2600 

Columbus, OH 43215 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Holen, Chairman 

~-L-u-~/tcL, , 

Richard V. Backley, Commissioner[/ 

J 

L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

603 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

M.A.G., INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 26, 1993 

Docket Nos. WEVA 92-1021 

WEVA 92-1046 

WEVA 92-1047 

WEVA 92-1048 

WEVA 92-1072 

WEVA 92-1073 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In these civil penalty proceedings arLsLng under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), 

Commission Chief Administrative Law Judge Paul Merlin issued six Orders of 

Default on March 17, 1993, finding respondent M.A.G., Inc. ("M.A.G.") in 

default for failing to answer the civil penalty proposal of the Secretary of 

Labor ("Secretary") and the judge's December 10, 1992, Order to Show Cause. 

The judge assessed civil penalties of $14,370 as proposed by the Secretary. 

For the reasons that follow, we vacate the default orders and remand the cases 

for further proceedings. 

The judge's jurisdiction over these cases terminated when his decision 

was issued on March 17, 1993. 29 C.F.R. § 2700.65(c). On April 15, 1993, 

Nichael Stanley, President of M.A.G., filed a letter with the Commission 

appealing the judge's default orders. Mr. Stanley requests that the default 

orders be withdrawn and that M.A.G. be given an opportunity to address the 

penalty assessments. 

Under the Mine Act and the Commission's procedural rules, relief from a 

judge's decision may be sought by filing a petition for discretionary review 

with the Commission within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29 

C.F.R. § 2700.70(a). We will treat M.A.G.'s letter as a timely filed petition 

for discretionary review of the decision. See~. Middle States Resources, 

Inc., 10 FMSHRC 1130 (September 1988). On the basis of the present record, we 

are unable to evaluate the merits of M.A.G.'s position. In the interest of 

justice, we will permit M.A.G. to present its position to the judge, who shall 

determine whether final relief from the default orders is warranted. 

604 
Accordingly, we vacate the judge's default orders and remand these 

matters for further proceedings. 

Distribution 

Michael Stanley, President 

M.A.G. Incorporated 

P.O. Box 445 

Boomer, \{11 25031 

Glenn M. Loos, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~ 

Arlene Holen, Chairman 

"Richard V. Backley, Co~~ 

J~7tile~~::~ 

..... 

L. 

dJl~~~ Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

605 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CLIFFORD MEEK 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 27, 1993 

v. Docket No. LAKE 90-132-DM 

ESSROC CORPORATION 

BEFORE: Holen, Chairman; Backley, Doy~e and Nelson, Commissioners 

DECISION 

BY: Holen, Chairman; Doyle and Nelson, Commissioners 

This is a discrimination proceeding brought under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or 

"Act") by Clifford Meek against Essroc Corporation ("Essroc"). Commission 

Administrative Law Judge William Fauver concluded that Essroc was the 

successor corporation of Meek's former employer and that Essroc discriminated 

against Meek by its failure to hire him at the time of the changeover in 

ownership. 13 FMSHRC 1970 (December 199l)(ALJ). The Commission granted 

Essroc's petition for discretionary review, which challenges: (1) whether 

Essroc is a successor corporation to Meek's former employer; (2) whether the 

judge's finding of discrimination is supported by substantial evidence; 

(3) whether the judge erred as to several procedural rulings; (4) whether the 

judge erred in his calculation of the backpay award, which was not reduced to 

reflect Meek's unemployment compensation; and (5) whether the judge's 

attorneys' fee award was erroneous. We affirm the judge's rulings with the 

exception of the backpay award, which we remand for further findings 

consistent with this opinion. 

I. 

Factual and Procedural Background 

A. Factual Background 

Essroc's cement division, Essroc Materials, Inc. , 1 owns and operates a 

grinding plant in Stark County, Ohio (the "Middlebranch Plant") with approximately 40 employees. The Middlebranch Plant grinds materials, such as 

1 Essroc and its subsidiary, 

referred to as "Essroc." 

Essroc Materials, Inc., are collectively 

606 
limestone and clay, and stores and ships dry cement. This plant, along with 

several others, was purchased by Essroc from United States Cement Company 

("USC") on or about February 27, 1990. All but two USC hourly employees from 

the Middlebranch Plant were hired by Essroc: an injured employee who remained 

with USC, and Clifford Meek whose employment application was denied. 

13 FMSHRC at 1970-71. 

On January 31, 1990, USC's management requested approximately ten USC 

hourly employees, including Meek, to attend a safety meeting with Richard L. 

Jones, an inspector from the Department of Labor's Mine Safety and Health 

Administration ("MSHA"). During the meeting, Inspector Jones encouraged the 

employees to discuss their safety and health concerns and assured the 

confidentiality of their remarks. Meek asked the inspector why the company 

appeared to know in advance when an inspection would occur. The inspector 

became angry, apparently interpreting Meek's question as an accusation that he 

was violating the law. Meek left the meeting shortly after the interchange. 

Later that morning, Inspector Jones told Plant Manager Marvin Bragg and 

Plant Supervisor Dale Lewis that the meeting "went pretty good," with the 

exception of one employee who had a "bad attitude." Tr. 332. Jones told 

Lewis and Bragg of Meek's insinuation that management knew beforehand when 

MSHA was going to inspect the plant. 2 Bragg then informed his superior, Mike 

Roman, USC's Industrial Relations Director, that the inspector was "upset." 

Tr. 381. Roman became concerned and sent a USC safety director to the 

Middlebranch Plant to see if he could placate the inspector. Jones' 

subsequent inspection resulted in the issuance of 15 citations, one of which 

was a "significant and substantial" citation that shut down a crane for a day 

and a half. 

In mid-February, three Essroc supervisors met with Bragg and Roman to 

select the hourly employees to be hired by Essroc. 13 FMSHRC at 1973. By 

that time, Bragg and Roman knew that they were going to assume supervisory 

positions at Essroc. 13 FMSHRC at 1973-74. Bragg reported that Meek had a 

poor attitude and had repeatedly stated that he would not work for Bragg. 

13 H1SHRC at 197L~; Tr. 287. showed the Essroc supervisors a -v1ritten 

evaluation form dated January 26, 1990, which he had filled out for Essroc, as 

well as four other documents from Meek's personnel file. 13 FMSHRC at 1974; 

2 Inspector Jones was subpoenaed to appear at the hearing but did not 

comply. At the , Meek introduced into evidence the inspector's noncontemporaneous notes recounting the and his conversation with plant 

management. 13 FMSHRC at 1972. The judge discredited these notes because they 

were at variance with some of the witness accounts and were not subject to crossexamination. Id. 

607 
Tr. 284 88. 3 On Bragg's recommendation, with Roman's support, it was decided 

that Meek would not be hired. 13 FMSHRC at 1974. 

A meeting was held by Bragg on February 27, 1990, announcing to the 

employees that Essroc was purchasing the Middlebranch Plant and that all 

employees were terminated as of that date. He advised all those interested in 

Essroc positions to apply for the jobs they had held at USC and to attend a 

meeting the next day. Bragg telephoned Meek early the next morning and told 

him not to bother coming to the meeting because Essroc was not going to 

approve his job application. Meek attended anyway. Bragg and Roman took him 

aside and told him that USC had terminated him and that Essroc refused to hire 

him. Tr. 55-56. 

B. Procedural History 

Meek filed a discrimination complaint with MSHA on March 30, 1990. MSHA 

subsequently informed Meek that it had found no discrimination in violation of 

section 105(c) of the Mine Act, 30 U.S.C. § 815(c). On September 27, 1990, 

Meek filed a discrimination claim on his own behalf with the Commission 

pursuant to section 105(c)(3) of theAct, 30 U.S.C. § 815(c)(3). A hearing 

was scheduled and Essroc filed a motion for summary judgment, which was 

denied. 

At the May 28, 1991, hearing, Essroc moved to dismiss the complaint at 

the close of Meek's case. The judge took the motion under advisement. On 

June 6, Meek's counsel moved to reopen the hearing on the basis of newly 

discovered evidence, i.e., that two separation notices, entered into evidence, 

might have been altered. Meek's counsel sought to put Andy Coccoli, who had 

prepared them, on the stand to so testify. Essroc opposed the request to 

reopen and the judge heard oral argument on the motion during a teleconference 

on June 25. The judge granted the motion and the hearing was reopened on 

July 18, 1991. 

3 In the January 26, 1990, evaluation, Bragg gave Meek a "Poor" mark in the 

category "Attitude Toward Work & Company." He received "Fair" ratings for 

"Quality of Work" and "Productivity & Quantity of Work." Bragg had also written: 

"This employee has ability to do a lot but is unwilling, his attitude is very 

close to being insubordinate, also can't get along with other employees." Ex. 

R-1. Also presented to Essroc were separation (layoff) notices dated 

February 13, and April 24, 1987, signed by Andy Coccoli, a former plant manager. 

The third document was an Employee Evaluation Report dated January 18, 1989, 

prepared by Bragg and initialed by Lewis, that rated Meek's "Cooperation, 

Attitude and Initiative" as "Poor." The comments on the report stated: "Must 

improve. This employee has made statements to other employees that he is not 

afraid to go to jail for assault" against his supervisors. Ex. R-2. The fourth 

document was a separation notice dated September 25, 1989, signed by Bragg, that 

rated Meek's "Conduct and Application" as "Poor." Ex. R-1. 

608 
On December 24, 1991, the judge issued a decision solely with respect to 

liability. 4 He found that Essroc, through its subsidiary, Essroc Materials, 

Inc., was a successor in interest to USC at the Middlebranch Plant. 13 FMSHRC 

at 1975. The judge determined that "[t]he evidence shows continuity of the 

business operations of the Middlebranch Plant from USC to Essroc with Essroc's 

use of the same plant, equipment, and essentially the same work force and 

supervisory personnel." Id. 

The judge also found that Essroc had discriminated against Meek because 

of activity protected under section 105(c) of the Mine Act. The judge found 

that Meek's complaint to the MSHA inspector that the operator appeared to have 

had prior knowledge of inspections qualified as protected activity and that 

the adverse action was motivated in part by that protected activity. The 

judge discounted the reasons given by Essroc for not hiring Meek because they 

were based in large part upon Bragg's and Roman's recommendations. 

Additionally, the judge determined that the separation documents had been 

tampered with in an effort to disparage Meek. 13 FMSHRC at 1975. 

The judge also concluded that Essroc had failed to raise a successful 

affirmative defense to Meek's prima facie case because evidence did not show 

that, "independent of Meek's complaint to Inspector Jones, his application for 

employment by Essroc would not have been accepted as were the applications 

from all other USC Middlebranch Plant hourly employees." 13 FMSHRC at 1979-

80. 

After 

of backpay, 

backpay and 

$17,065.80. 

extensive correspondence and filings by the parties on the issue 

interest and attorneys' fees, the judge's final order awarded Meek 

interest amounting to $24,000.00, and attorneys' fees of 

14 FMSHRC 518 (March 1992). 

II. 

Disposition of Issues 

A. Whether Essroc is a successor of USC 

Essroc argues that it is not a successor of USC because its upper level 

management and ownership are different and distinct from those of USC. 

Essroc, as a large enterprise, produces many more products than USC. 

Additionally, USC still exists as a business entity because Essroc purchased 

only 70% of its assets. These factors are insufficient to avoid a finding of 

successorship under the circumstances presented. 

The judge found that Essroc was a successor to USC under the 

Commission's successorship test first enunciated under the Federal Goal Mine 

Health and Safety Act of 1969 in Munsey v. Smitty Baker Goal Company. Inc., 2 

FMSHRG 3463 (December 1980), aff'd in relevant part sub nom. Munsey v. FMSHRG, 

4 On January 31, 1992, the judge issued a supplemental decision denying 

Essroc's motion to dismiss, for the reasons set forth in his December 24, 1991, 

decision. 

609 
701 F.2d 976 (D.C. Cir.), cert. den. sub nom. Smitty Baker Coal Co. v. FMSHRC, 

464 U.S. 851 (1983), and readopted under the Mine Act in Secretary on behalf 

of James Corbin et al. v. Sugartree Corp., Terco. Inc. and Randal Lawson, 

9 FMSHRC 394, 397-99 (March 1987), aff'd sub nom. Terco, Inc. v. FMStlRC, 839 

F.2d 236, 239 (6th Cir. 1987). See also Secretary on behalf of Keene v. 

Mullins, 888 F.2d 1448, 1453 (D.C. Cir. 1989). Under this test, the successor 

operator may be found liable for, and responsible for remedying, its 

predecessor's discriminatory conduct. The factors for determining successorship are: (l) whether the successor company had notice of the underlying 

charge of possible discrimination; (2) the ability of the predecessor to 

provide relief; (3) whether there has been a substantial continuity of 

business operations; (4) whether the new employer uses the same plant; 

(5) whether he uses the same or substantially the same work force; (6) whether 

he uses the same supervisory personnel; (7) whether the same jobs exist under 

substantially the same working conditions; (8) whether the new employer uses 

the same machinery, equipment and methods of production; and (9) whether he 

produces the same product. See Terco, 839 F.2d at 239; Mullins, 888 F.2d at 

1454. 

Substantial evidence support~.the judge's decision that, under the 

Munsey-Terco test, Essroc qualifies as a successor to USC at the Middlebranch 

Plant. Essroc acquired the entire Middlebranch Plant; it used virtually the 

entire workforce (except for Meek and an injured employee); it assumed the 

same supervisory personnel; it produced the same product; there was a 

substantial continuation of business operations at the Middlebranch Plant 

between USC and Essroc; Essroc knew of the "charge" involving Meek through 

Roman, Bragg and Lewis, who became Essroc supervisors. Roman and Bragg were 

instrumental in the decision not to hire Meek. The judge did not expressly 

address in his decision the ability of the predecessor to provide relief, but 

concluded generally that all the relevant criteria were satisfied. Thus, 

Essroc may be held derivatively liable for the discriminatory acts of USC. 

B. Merits of Meek's discrimination case against Essroc. 

miner discrimination under the Mine Act establishes a prima 

facte case proving that he engaged in protected activity and that the 

adverse action complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Go., 2 FMSHRC 2786, 2797-

2800 (October 1980), rev'd on other grounds sub nom. Consolidation Goal Co. v. 

663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of Robinette v. 

3 ~ISHRC 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 

actlVl Pasula, 2 FMSHRC at 2799-2800. If the operator cannot rebut the 

prima facie case, 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 activity alone. Pasula, 2 

FMSHRC at 2800; Robinette, 3 FMSHRC at 817 18; see also Eastern Assoc. Coal 

Corp. v. FMSHRC; 813 F.2d 639, 642 (4th Cir. 1987); 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 Pasulatest). 

610 
1. Prima facie case 

On review, Essroc does not dispute the judge's finding that Meek engaged 

in protected activity by raising a safety-related question at the January 31, 

1990, meeting of employees. It is also undisputed that Meek suffered an 

adverse employment action in not being hired by Essroc upon its takeover of 

the Middlebranch Plant. The issue on review is whether that adverse action 

was linked to Meek's protected activity. The judge determined that Meek 

established a causal nexus between the adverse action and his protected 

activity. We agree. 

As the judge noted, "Direct evidence of motivation is rarely 

encountered; more typically, the only available evidence is indirect .... 

'Intent is subjective and in many cases the discrimination can be proven only 

by the use of circumstantial evidence.'" 13 FMSHRC at 1977, quoting Secretary 

on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 

1981); see also Bradley v. Belva Coal Company, 4 FMSHRC 982, 992 (June 1982) 

("[C]ircumstantial evidence ... and reasonable inferences drawn therefrom may 

be used to sustain a prima facie case of discrimination."). 

It is evident from the record that USC supervisors had knowledge of 

Meek's protected activity. Plant Manager Bragg, Plant Supervisor Lewis, and 

Industrial Relations Director Roman all quickly learned of Meek's comment to 

the MSHA inspector. Inspector Jones reported to Lewis and Bragg that his 

meeting with USC employees went well, with the exception of Meek, who had a 

"bad attitude." Roman became concerned enough about the comment that he sent 

USC's director to the Middlebranch plant to placate the inspector. 

Thus, there is substantial evidence to support the finding that management had 

knowledge of Meek's activity. As the Commission has noted, "[t]he operator's 

knowledge of the miner's protected activity is probably the single most 

important aspect of a circumstantial case." Chacon, 3 FMSHRC at 2510. 

Further, the record shows that USC reacted in a hostile manner to Heek's 

protected "Hostility towards protected sometimes 

referred to as 'animus' is another circumstantial factor pointing to 

discriminatory motivation." Chacon, 3 FMSHRC at 2511, NLRB v. Superior 

366 F.2d 229, 233 (8th Cir. 1966). Here, USC employee James 

Gallentine testified that Plant Supervisor Lewis told him that USC's vice 

president was upset over Meek's remark to the inspector and wanted Meek fired. 

Tr. 35. although Lewis denied making the remark, the judge credited 

Gallentine's testimony. 13 FMSHRC at 1973, 1979. Therefore, the judge's 

that USC management wanted to fire Meek because of his protected 

is supported by substantial evidence. 

The judge made reasoned conclusions in discrediting the reason given by 

Bragg and Roman for not Meek. Bragg did not testify at the hearing. 

Essroc submitted affidavits from Bragg and Roman in which they stated that 

Meek had told Bragg that he would not work for Bragg. However, Meek, after 

be warned by Gallentine to "watch [his] back," had begun wearing a 

recorder during his conversations with management. Among the conversations 

recorded and put into evidence were those on February 27 and 28, with Bragg 

and Roman. In Meek's , he did not say he would not work for Bragg nor 

611 
was there an indication that he had made such a statement. 13 FMSHRC at 1978. 

The other supervisor present at the February 27 conversation did not recall 

Meek making such a statement. Tr. 365. Thus, there is substantial evidence 

for the judge's conclusion that Bragg made his allegation so that Essroc would 

not hire Meek. 

Meek's evaluations and Essroc's alleged justification for not hiring 

him, because he was a poor worker, are also suspect. The February 13, and 

April 24, 1987, separation notices contain a rating scale by which a 

supervisor could check off an employee's performance as "Good," "Fair," or 

"Poor" in various categories. They show that Meek's "Conduct" was rated as 

"Poor." Exs. C 2-B, C-3-B. However, Coccoli, who had signed the notices, 

testified that he had not checked those items and, to the contrary, had found 

Meek to be an excellent employee in all work areas, including skills, 

performance and attitude. Tr. II 33-35, 38-39. 5 Coccoli testified that he 

had found Heek to be "courteous, honest," and "excellent all the way through," 

and that, "If I had to open a company today, I would say he would be one [of] 

the first guys I would hire." Tr. II 33, 34. He stated that if he were to 

rate Meek's conduct and productivity, given the choices of good, fair or poor, 

he would check the "good" box. Tr.,.II 35. Coccoli stated: "I would say he's 

got a lot of ability. He's a good mechanic. It didn't take long for him to 

... learn the jobs in the lab or as a ... crane operator, which is a pretty 

delicate job. And as a miller, I would rate him excellent .... " Tr. II 34. 

The judge concluded that "tampering" had occurred and "raised a serious cloud 

over the integrity and credibility of USC's evaluation of Meek." 13 FMSHRC at 

1975. The other evaluations of Meek were signed by Plant Manager Bragg. 

Apart from the discredited evaluations and affidavits, other record 

evidence supports the judge's finding. Meek was never presented with any of 

the alleged poor evaluations during his eight years of employment with USC, 

nor was he ever disciplined or cautioned. Tr. 26-29. He was always rehired 

after layoffs and had received promotions and plant-wide pay raises. His 

attendance record was exemplary, never having missed a day of work in eight 

years. Tr. 28. 

Finally, Essroc's dec~s~on noc to hire Neek was made in close proximity 

to the MSHA meeting. That meeting was held on January 30, 1990, and the 

hiring meeting with Essroc occurred in mid-February. Coincidental timing can 

be indicative of discriminatory motivation. As the Commission noted in 

Chacon, "[ dverse action under circumstances of suspicious timing taken 

against the employee who is [ figure in protected activity casts doubt on 

the legality of the employer's motive .... " 3 FMSHRC at 2511. 

Vie conclude that the judge's of a prima facie case of 

discrimination is suppor-ted by substantial evidence and is consistent with 

relevant Commission case law. Accordingly, we affirm that finding. 

5 Tr. II refers to the second hearing in this proceeding held on 

July 18, 1991. 

612 
2. Affirmative defense 

Essroc contends that, even if Meek established a prima facie case, it 

affirmatively defended against that case by proving it would not have hired 

him in any event. In support, Essroc relies on three earlier unfavorable 

evaluations of Meek that were prepared by Bragg prior to the MSHA meeting. 

Essroc also points out that the three Essroc officials who made the hiring 

decision were not aware of Meek's protected activity. 

An operator bears the burden of proving an affirmative defense to a 

discrimination complaint. Pasula, 2 FMSHRC at 2799-2800; Bradley, 4 FMSHRC at 

993. As noted, the evaluations on which Essroc relies are suspect and are 

insufficient to establish an affirmative defense. While an operator may 

establish an affirmative defense by proving that the employee received past 

warnings, prior disciplinary action or unsatisfactory work evaluations (see 

Bradley, 4 FMSHRC at 993), Essroc's evaluation system does not reflect normal 

business practices regarding an employee evaluation system. 6 Additionally, 

the testimony of Meek's former supervisor, Coccoli, directly contradicts 

Bragg's unfavorable evaluations of Meek. 

Further, it is immaterial that"the three Essroc officials attending the 

hiring meeting may not have been aware of Meek's protected activity. Essroc 

qualifies as a successor to USC, and hence is derivatively liable for the 

actions of USC management who knew of Meek's protected activity. 

Thus, Essroc did not establish that its failure to hire Meek was also 

motivated by unprotected activity and that it would have taken the adverse 

action in any event for the unprotected activity alone. Pasula, 2 FMSHRC at 

2800; Robinette, 3 FMSHRC at 817-20. Therefore, we conclude that substantial 

evidence supports the judge's determination that Essroc failed in its burden 

of proof with respect to its affirmative defense. 

C. 

Essroc argues that the judge made a number of procedural errors at the 

hearing. \tie find Essroc's claims to be "1-lithout merit. 

1. Reopening of the hearing 

Essroc argues that the judge erred in reopening the hearing to take 

additional testimony on the basis of newly discovered evidence. Essroc 

contends that "the evidence presented was not "newly discovered" but simply 

evidence that with the use of pretrial discovery, could have been presented 

at the initial hearing. It asserts that the Coccoli testimony should have been 

6 All employees who testified stated that they were unaware that any 

evaluation system existed at USC. Tr. 26-27, 128, 137, 174. USC did not show 

Meek any of his evaluations, nor had any disciplinary action been taken against 

him as a result of the allegedly poor evaluations. Tr. 26, 28. 

613 
uncovered before the hearing, and thus was not "newly discovered" under the 

Federal Rules of Civil Procedure ("Fed. R. Civ. P."). 7 

Meek's motion to reopen was made prior to entry of judgment. Commission 

Procedural Rule 54(a), 29 C.F.R. § 2700.54(a), empowers Commission judges to 

regulate the course of hearings and to dispose of procedural motions. Under 

this authority, Commission judges may reopen hearings in appropriate cases. 

See Kerr-McGee Coal Corp., 15 FMSHRC 352, 357 (March 1993). Commission may 

also properly look for guidance to the Federal Rules of Civil Procedure ("Fed. 

R. Civ. P. 11 )(29 C.F.R. § 2700.l(b)), and precedent thereunder. A motion to 

reopen the record to submit new evidence is not expressly addressed in the 

federal rules but, rather, is committed to the sound discretion of the trial 

judge. See generally, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 

U.S. 321, 331 (1971). In general, an abuse of discretion occurs when the 

trial court bases its decision on an erroneous conclusion of law or where 

there is no rational basis in the evidence for its ruling. See, ~. In re 

Coordinated Pretrial Proceedings, etc., 669 F.2d 620, 623 (lOth Cir. 1982). 

A motion for a new trial under Fed. R. Civ. P. 59 has certain 

similarities and affords some guidance. See J. Moore, J. Lucas & G. Grother, 

6A Moore's Federal Practice, 59.04[13](2d ed. 1992)("Moore's"). Generally, 

in determining whether to grant a motion to reopen, it is appropriate to 

consider the time when the motion is made, the character of the additional 

evidence, and the effect of granting the motion. 6A Moore's 

<JI 59.04[13]. 

Meek's motion was made on a timely basis, approximately nine days after 

the hearing and before a decision was issued by the judge. No unnecessary 

delay occurred. Carracci v. Brother Int'l Sewing Machine Corp. of L.A., 

222 F. Supp. 769, 771 (E.D. La. 1963), aff'd, 341 F.2d 377 (5th Cir. 1968). 

As to the character of the additional evidence, it was not cumulative of 

testimony presented at the hearing. Rather, Meek sought to rebut evidence of 

his poor performance presenting evidence that the two separation notices 

had been altered to indicate that he was a "poor" Harker. Coccoli, the author 

of the notices, was to that he had not provided such a poor rating. 

The third factor, the effect of granting the motion, also supports reopening. 

The testimony involved serious allegations of fraud upon the Commission. See 

generally 64 F. Supp. 651, 652 (W.D. Pa. 

1946). For these reasons, we conclude that the judge acted within his sound 

discretion in granting ~'leek's motion to reopen the hearing and in receiving 

the additional testimony. 

7 Essroc also contends that Meek should not have been permitted to reopen 

the hearing to introduce the testimony of former USC Plant Manager Kalman Potter. 

The judge did not rely on the Potter testimony in any respect in reaching his 

decision. Therefore, ive conclude that no error arose from hearing that 

testimony. 

614 
2. Denial of Essroc's motions for summary decision 

and for directed verdict 

Essroc contends that the judge should have granted Essroc's motion for 

summary decision prior to the hearing. Applying Commission Procedural Rule 

64, 29 C.F.R. § 2700.64, 8 the judge determined that there were four factual 

areas in contention: (1) was Essroc a successor in interest to USC?; (2) did 

MSHA Inspector Jones inform management of his conversation with Meek?; (3) did 

supervisor Lewis inform miner Gallentine that USC management wanted to fire 

Meek?; and (4) did Meek inform supervisors Bragg or Roman that he couldn't 

work with Bragg? Unpublished Order dated May 8, 1991. Summary decision may 

be entered only when there is no genuine issue as to any material fact. 

Missouri Gravel Co., 3 FMSHRC 2470, 2471 (November 1981). Here, the record 

revealed that there were four disputed factual areas that precluded summary 

decision. 

Essroc's reliance on Meek's deposition for failing to establish a 

discriminatory motive is also misplaced. Meek was under no duty to prove his 

case during his deposition. On the contrary, at a deposition the opposing 

party poses particular questions t<f the deponent and he is required only to 

answer fully and truthfully the questions posed. Accordingly, Judge Fauver 

acted within his discretion in denying Essroc's motion. 

Similarly, Essroc argues that the judge should have granted its motion 

for directed verdict made at the close of Meek's case. It was within the 

judge's discretion to take under advisement Essroc's motion. Fed. R. Civ. P. 

52(c), "Judgment on Partial Findings," provides: "If during a trial without a 

jury a party has been fully heard with respect to an issue ... , the court may 

enter judgment as a matter of law against that party on any claim ... , or the 

court may decline to render any judgment until the close of all the evidence." 

(Emphasis added). The Notes of the Advisory Committee on Rules to Fed. R. 

Civ. P. 52(c) specify that a court possesses "the discretion to enter no 

judgment prior to the close of evidence." Here the judge exercised that 

discretion. Accordingly, we find no error by the judge and affirm his 

procedural determinations. 

E. Backpay award 

Essroc contends that the judge erred in his backpay award on two 

grounds: the judge should have deducted from the award unemployment 

compensation received by Meek; and, the judge should have used comparable wage 

8 Commission Procedural Rule 64 provides: 

(b) Grounds. A motion for summary decision shall 

be granted only if the entire record, including the 

pleadings, depositions, answers to interrogatories, 

admissions, and affidavits shows: (1) [t]hat there is no 

genuine issue as to any material fact; and (2) that the 

moving party is entitled to summary decision as a matter 

of law. 

615 
data from a certain Essroc employee, rather than relying on an estimate of 

lost wages. 

1. Deduction of unemployment compensation 

In the proceedings below, Essroc requested that Meek's unemployment 

compensation be deducted from Meek's backpay. The judge summarily denied 

Essroc's request without setting forth reasons. Unpublished Order dated 

February 18, 1992. Although the total unemployment compensation that Meek 

received has not been established, it appears from the record to be 

approximately $2,700. For the following reasons, we conclude that Meek's 

unemployment compensation should be deducted from the backpay award. 

The question of whether to deduct unemployment compensation from a 

backpay award is one of first impression for this Commission. The Mine Act is 

silent on the question. For guidance, we look to case law interpreting 

relevant remedial provisions of the National Labor Relations Act, 29 U.S.C. 

§ 160 ("NLRA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

§ 2000e-5(g) ("Title VII") and the Age Discrimination in Employment Act (29 

U.S.C. § 634 ("ADEA"). The Mine AGt'.s remedial provisions, as well as those 

of Title VII and the ADEA, are modeled on section lO(c) of the NLRA, as 

amended, 29 U.S.C. § l60(c). See,~. Secretary on behalf of Dunmire and 

Estle v. Northern Coal Company, 4 FMSHRC 126, 142 (February 1982). 

In NLRB v. Gullett Gin Co., 340 U.S. 361 (1951), the Supreme Court was 

presented with the issue of whether the National Labor Relations Board 

("NLRB") exceeded its discretion in refusing to deduct unemployment 

compensation from a backpay award. The NLRB's order allowed deduction of 

other earnings during the backpay period but did not provide for a deduction 

of unemployment compensation. In concluding that the NLRB had not abused its 

discretion, the Court stated: "Because the relation of remedy to policy is 

peculiarly a matter for administrative competence, courts must not enter the 

allowable area of the Board's discretion .... " 340 U.S. at 363. 

Consistent with the Supreme Court's decision in courts have 

held uniformly that similar discretion exists under other labor statutes with 

remedial provisions patterned on the NLRA. Thus, reviewing courts have 

determined that, under Title VII and the ADEA, the deduction of unemployment 

compensation from backpay awards is a matter within the discretion of the 

trial judge. See, ~. EEOC v. Enterprise Ass'n Steamfitters, 542 F.2d 579, 

591-92 (2d Cir. 1976)(Title VII); EEOC v. Sandia Corp., 639 F.2d 600, 624-26 

(lOth Cir. 1980)(ADEA); Naton v. Bank of California, 649 F.2d 691, 699-700 

(9th Cir. 198l)(ADEA); Hunter v. Allis-Chalmers, 797 F.2d 1417, 1428-29 (7th 

Cir. 1986)(Title VII), Cooper v. Asplundh Tree Expert Go., 836 F.2d 1544, 1555 

(lOth Cir. 1988)(ADEA). We conclude that, under the Mine Act's remedial 

scheme, this Commission may exercise its discretion to adopt an appropriate 

policy concerning the deduction of unemployment compensation. 9 See Gullett 

9 We note that in Boich v. FMSHRC, 704 F.2d 275, 286-87 (6th Cir. 1983), 

the Sixth Circuit concluded that a Commission administrative law judge did not 

(continued ... ) 

616 
Gin, 340 U.S. at 363. See also S. Rep. No. 181, 95th Gong., 1st Sess. 25 

(1977), reprinted Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Gong., 2d Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 625 (1977)("Legis. Hist."). 

The Commission endeavors to make miners whole and to return them to 

their status before illegal discrimination occurred. Munsey, 2 FMSHRC at 

3464; Secretary on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 

2056 (December 1983). "Our concern and duty is to restore the discriminatees, 

as nearly as we can, to the enjoyment of the wages and benefits they lost as a 

result of their illegal terminations." Dunmire, 4 FMSHRC at 143. Monetary 

relief is awarded "to put an employee into the financial position he would 

have been in but for the discrimination." Secretary on behalf of Gooslin v. 

Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982). Further, "we endeavor to 

make our awards as reasonable as possible." Dunmire, 4 FMSHRC at 143. The 

Commission seeks to fashion relief that is just and does not overcompensate 

the discriminatee. Id. at 142-43. 

A policy of deducting unemployment compensation from a backpay award 

under the Mine Act does not mean thatthe miner is less than fully compensated 

for his lost wages. Rather, as the Second Circuit has stated in a Title VII 

case, "We see no compelling reason for providing the injured party with double 

recovery for his lost employment .... " Enterprise Ass'n Steamfitters, 542 F.2d 

at 592. Additionally, failing to deduct unemployment compensation conflicts 

with the Commission's well established policy of deducting earnings from the 

backpay award. See, ~. Dunmire, 4 FMSHRC at 144. If earnings are deducted 

from backpay, we see no reason why unemployment compensation should not be 

deducted as well. 10 

Deducting unemployment compensation from backpay awards is not 

inconsistent with the Mine Act's goal of deterring illegal conduct. The 

employer will still be required to place the victim of unlawful discrimination 

in the same position he was in but for the unlawful discrimination, providing 

backpay, reinstatement with full seniority rights and attorneys' fees. The 

employer should not be required to additionally compensate the miner with 

backpay for funds already received, if the miner has worked in the interim or 

9 ( ••• continued) 

abuse his discretion in declining to deduct unemployment compensation from 

backpay. relied primarily on Gullett Gin to determine that the judge and 

the agency had such remedial discretion. Id. Boich was not briefed and argued 

to the Commission, since the Commission had not granted review. 704 F. 2d at 278. 

Therefore, it does not represent Commission policy. 

10 We note that when unemployment compensation and backpay are both 

received, unemployment compensation must, in many instances, be repaid to the 

state fund. Gullett Gin, 340 U.S. at 365 n.l. States may require 

restitution of unemployment compensation when, as a result of an award of 

backpay, the worker is rendered not unemployed for the period of the award and 

the benefits received become overpayments. 42 U.S.C. § 503(g) 

(1988); 26 U.S.C. § 3304(a)(4)(1988). 

617 
received unemployment compensation. 11 Significantly, the Mine Act, unlike 

the NLRA, Title VII, and the ADEA, authorizes that a separate civil penalty be 

assessed against an operator who unlawfully discriminates against a miner. 30 

U.S.C. §§ 815(c), 820(a). The Commission's recently issued Procedural Rules 

require the Secretary of Labor to propose a separate civil penalty for a 

violation of section 105(c). 58 Fed. Reg. 12168 (1993) (to be codified at 29 

C.F.R. § 2700.44)(effective May 3, 1993). 

For the reasons set forth, we conclude that deducting unemployment 

compensation from a backpay award is a reasonable and sound policy that fully 

effectuates the Mine Act's goal of making whole miners who have been 

wrongfully discharged in violation of the Act. 

In Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549, 1550-51 (11th Cir. 

1983), and Craig v. Y&Y Snacks, 721 F.2d 77, 81-85 (3d Cir. 1983), the 

Eleventh and Third Circuits, respectively, established a consistent approach 

to the deductibility of unemployment compensation among the district courts 

whose decisions those circuit courts review. Both circuits relied on Gullett 

Gin. The Commission, as did those circuit courts, now adopts a policy for its 

administrative law judges, in order-to ensure equality of treatment of miners 

and mine operators in Commission decisions. Like the Eleventh Circuit in 

Brown, we determine that "[a] consistent approach to this legal question seems 

preferable to a virtually unreviewable discretion which may produce arbitrary 

and inconsistent results." 715 F. 2d at 1551. 12 

Thus, we reverse the judge's decision not to deduct Meek's unemployment 

compensation. We remand to the judge to determine the amount of unemployment 

compensation received by Meek and to deduct that amount from Meek's backpay in 

accordance with our opinion. 

2. Use of comparable wage data 

On March 10, 1992, the judge ordered Essroc to produce copies of the W-2 

statements and quarterly gross wages for all its hourly employees at the 

Middlebranch Plant for the period from February 27, 1990, to March 1, 1992. 

Essroc submitted wage information pertaining to only three employees, whom it 

11 "All states incorporate experience rating as the basis for 

determining employers' contribution rates." Employment and Training 

Administration, U.S. Dept of Labor, Unemployment Insurance Program Letter No. 3-

92, Experience Rating Index (1991). When an individual receives unemployment 

compensation, his previous employer is, as a result, taxed at an increased rate, 

depending upon the degree of experience See 26 U.S.C. § 3303(a)(l988). 

12 In a case currently before the Commission, Secretary on behalf of Nantz 

v. Nally & Hamilton Enterprises. Inc., 15 FMSHRC 237, 241 (February 1993)(ALJ), 

Administrative Law Judge George A. Koutras determined that unemployment 

compensation should be subtracted from a backpay award. The Secretary of Labor 

took no position on the issue "other than to stipulate that it is within the 

discretion of the presiding judge." 

618 
believed were "comparable" to Meek. The judge's final order notes that Essroc 

had failed to provide certain financial materials relevant to backpay that he 

had ordered produced. 14 FMSHRC at 518. The judge awarded backpay in the 

amount of $24,000 based on Meek's estimates. 

Essroc contends that the judge should have awarded $22,582.91, based on 

the wage reports of one of the three Essroc employees concerning whom it had 

provided data. The judge was not able to determine whether the wages of that 

employee were comparable because of Essroc's failure to produce relevant wage 

documentation. Because Essroc did not produce the information ordered by the 

judge, we are unable to evaluate whether the $1,500 reduction urged by Essroc 

is appropriate. Accordingly, we conclude that, based on the information 

before him, the judge acted appropriately by determining Meek's lost wages to 

be $24,000. 

E. Attorneys' fee award 

On review, Essroc provides the Commission with no detail supporting its 

charge of excessive attorneys' fees. An attorneys' fee award in Mine Act 

discrimination cases lies within the· sound discretion of the trial judge. 

Secretary on behalf of Ribel v. Eastern Assoc. Coal Corp., 7 FMSHRC 2015, 2027 

(December 1985), rev'd on other grounds in Eastern Assoc. Coal, 813 F.2d 639. 

The judge considered extensive documentation from Meek's counsel, including 

itemized statements, before reaching his determination. We perceive no abuse 

of discretion. Accordingly, we affirm the judge's award of attorneys' fees. 

619 
III. 

Conclusion 

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

respects, except for the failure to deduct Meek's unemployment compensation 

from backpay. We remand the case for further findings on the amount of 

unemployment compensation Meek received during the backpay period and direct 

that the sum be deducted from Meek's backpay award in accordance with this 

decision. 13 

Arlene Holen, Chairman 

JJ-(_~ "-nu_~ L. Clair Nelson, Commissioner 

13 We note that the judge ordered the interest on backpay computed at the 

IRS adjusted prime rate under Arkansas-Carbona Company, 5 FMSHRC at 2050-52. 

13 FMSHRC 1980 n.4. In Clinchfield Coal Co., 10 FMSHRG 1493 (November 1988), the 

Commission modified the calculation of such interest. We remind the judge that 

interest should be calculated according to Arkansas-Carbona, as modified by 

Clinchfield. 

620 
Commissioner Backley concurring in part and dissenting in part. 

The majority has correctly concluded that under the Mine Act the Commission has 

the discretion to fashion a policy regarding the effect of unemployment compensation 

upon the backpay award received by a miner. The Commission however, as with any 

court or agency, must base its exercise of discretion upon reasoned, rational principles that 

are not in conflict with binding precedent. Failure to do so amounts to an abuse of that 

discretion. In this case, examination of the bases upon which the majority concludes that 

unemployment compensation received shall be deducted from backpay awards constrains 

me to conclude that the majority has abused its discretion. 

Distilled to its core, the majority's rationale is that the failure to deduct 

unemployment compensation results in a windfall to the miner that is in conflict with the 

policy to require deductions of earnings from backpay, and that such failure to deduct 

constitutes an additional expense to the employer. 

The foregoing reasoning has long since been considered and rejected by the 

Supreme Court. Indeed the very same Supreme Court case relied upon by the majority, in 

support of its conclusion that it has discretion to adopt a policy on this issue, provides a 

clear prescient rejection of the majority's rationale. 

To decline to deduct state unemployment compensation benefits 

in computing back pay is not to make employees more than 

whole, as contended by respondent. Since no consideration 

has been given or should be given to collateral losses in framing 

an order to reimburse employees for their lost earnings, 

manifestly no consideration need be given to collateral benefits 

which employees may have received. 

1\!L.RB v. Gullett Gin Co., 340 361,364 (1951) (emphasis in original). 

Thus, in determining that the NLRB acted properly within its discretion by refusing 

to deduct unemployment compensation from backpay owed, the Supreme Court clearly 

differentiated unemployment compensation from earnings. The Court flatly rejected the 

argument that unemployment compensation was to be treated as earnings. 

In Marshall Field & Co. v. National Labor Relations Board, 318 

U.S. 253, 87 Led 744, 63 S Ct 585, this Court held that the 

benefits received by employees under a state unemployment 

compensation act were plainly not earnings which, under the 

Board's order in that case, could be deducted from the 

back pay awarded. 

340 U.S. at 363. 

621 
The Gullett Gin Court also rejected the argument that the unemployment 

compensation payments were to be considered as direct payments from the employer and 

therefore properly set-off against the backpay award. The Court stated: 

Payments of unemployment compensation were not made to 

the employees by respondent but by the state out of state 

funds derived from taxation. True, these taxes were paid by 

employers, and thus to some extent respondent helped to create 

the fund. However, the payments to the employees were not 

made to discharge any liability or obligation of respondent, but 

to carry out a policy of social betterment for the benefit of 

the entire state. 

340 U.S. at 364 (citations omitted). 

Although the Commission has the .discretion under the Mine Act to establish a 

policy on this issue, even one that differs from the result reached by the Supreme Court, 

the Commission does not have the authority to bottom its discretionary policy choice upon 

standards or reasons which have been rejected by the Supreme Court. 

A lower court, when faced with a factually distinguishable but legally 

relevant Supreme Court decision, may employ the Supreme Court's 

method of analysis to render a decision that differs from the Supreme 

Court's. A lower court, however, may not employ a different standard in 

analyzing the different facts. 

Levine v. Heffernan, 864 F.2d 457, 460 (7th Cir. 1988) (emphasis in original). 

In this case the majority has strayed even further than the lower court in Levine. 

Here the majority has relied upon a rationale which has been rejected by the Supreme 

Court. ll The Commission is required to follow not only the decisions but also the clear 

implications of Supreme Court decisions. Hendricks County Rural Elec. v. N.L.R.B., 627 

F.2d 766, 769, rev. Qn other grounds, 454 S. 170, on remand, 688 F.2d 841. 7) Unless 

and until the Supreme Court chooses to depart from its ruling and rationale we must be so 

guided. Kovacs v. United States, 355 F.2d 349, 351 (9th Cir. 1966). 

"The collateral benefits rationale was one of the bases for the Supreme Court's 

decision in Gullet Gin." Craig v. Y&Y Snacks, Inc., 721 F.2d 77,84 (3rd Cir. 1983); ~ee 

also Kauffman v. Sidereal Corp., 695 F.2d. 343, 346, (9th Cir. 1982). 

The Supreme Court did not disturb the circuit court's conclusions regarding the 

binding effect of prior Supreme Court decisions and implications thereto. However, the 

Supreme Court did rule that its own statement, contained in a prior decision and relied 

upon by the circuit court, was in error. 

622 
To the extent that my colleagues attempt to excuse their failure to apply the 

Supreme Court's rationale on the basis that the above-quoted Gullet Gin statements are 

merely dicta, and therefore not controlling, they err. Whether dicta or not, the 

Commission should always be guided by the opinion of the Supreme Court. United States 

v. Willard, 211 F.Supp. 643, 652 (N. D. Oh. 1962). Moreover, assuming arguendo that 

the above-quoted rationale is dicta, "it cannot be treated lightly by inferior federal courts 

until disavowed by the Supreme Court." 627 F.2d at 768 n. 1 (citation omitted). For the 

foregoing reasons I conclude that the majority has acted arbitrarily and therefore has 

abused its discretion. 

Beyond the foregoing legal basis for my disagreement with the majority, I am 

eager to disassociate myself from a policy choice which fails to fairly balance the interests 

of the parties. After reading the majority's opinion on this issue, it would seem necessary 

to remind the reader that in this case the miner prevailed, i.e., he was the victim of an 

illegal discharge. This caution is necessary because the majority's expressed concern 

focuses unduly on avoiding the risk of visiting a windfall recovery upon the miner. Never 

mind that in pursuing their approach; "there seems to be no concern that a reciprocal 

windfall may inure to employers whose backpay liability will be partially discharged from 

a public fund not intended for such use. 

The deduction or offsetting of unemployment benefits may well result in a 

windfall to the employer. He finds himself in a position where he is not 

responsible for the payment of the illegally withheld back pay and then 

offsetting it with unemployment benefits by the government, which is 

unjust enrichment except to the extent that employers make contributions 

to the fund. 

{lOth Cir. 1980). 

Ideally, our goal is to formulate a policy which will result in a windfall to neither 

party. In seeking to achieve that same goal, the majority of courts have opted to not 

deduct unemployment compensation from backpay awards. Indeed four Circuit Courts, 

Third, Fourth, Ninth and Eleventh have adopted rules which have removed this matter 

from district court discretion. The rule requires that no deduction of unemployment 

compensation be made from Title VII backpay awards. ')_/ Furthermore, it is settled law 

within the NL,RB that unemployment compensation not be deducted from back pay. 340 

S. at 365-366; see also Brown v. A. J. Gerrard Mfg. Co., 7!5 F.2d 1549, 1551 (11th 

1983). The most effective and sensible approach to resolve this issue is rooted in a 

I share the majority's view that case law relating to: Title VII of the Civil Rights 

Act of 1964; the National Labor Relations Act; and the Discrimination in 

Employment Act is applicable to this issue. 

623 
footnote the Supreme Court used to support its opinion that "back pay does not make the 

employees more than 'whole'." 340 U.S. at 365. The Court observed that "some states 

permit recoupment ofbenefits paid." Id. n. 1. This approach has been widely followed. In 

adopting a rule of non-deductibility of unemployment benefits and rejecting the windfall 

argument, the Third Circuit reasoned: 

although it appears to provide double recovery, in fact that is 

not the inevitable result. Often insurers have subrogation rights, 

and in some circumstances state benefits are recoupable. 

For example, a recently enacted Pennsylvania statute 

provides for recoupment of unemployment benefits 

when back pay has been awarded. 

Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 83-84 (3rd Cir. 1983) (citation omitted.); see 

also Cooper v. Asplundh Tree Expert.Co." 836 F.ed 1544, 1555 (lOth Cir. 1988), where 

the court rejected the set-off because Colorado law requires an employee who receives a 

back pay award to "repay ... all unemployment benefit payments received." 

that: 

In affirming the lower court, the Ninth Circuit referred approvingly to the rationale 

if Congress did not intend for an employee to receive unemployment 

benefits in addition to back pay the logical solution is a recoupment of the 

unemployment benefits by the state employment agency. 

Kauffman v. Sideral CoriL 695 F.2d 343, 347 (9th Cir. 1982). 

Indeed, even in the Seventh Circuit where the court registered a clear concern and 

preference that an employee not receive unemployment compensation and overlapping 

backpay, the court reasoned that the solution was not to allow the employer to "get a 

deduction for unemployment insurance benefits but that Hunter should have to repay 

them" Hunter v .. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1429 (7th Cir. 

1986). The court went on to observe that if that were not possible "the choice seems to 

be between conferring a windfall on Allis-Chalmers and a windfall on Hunter. As the 

victim of Allis-Chalmers' wrongdoing, Hunter is the logical choice." Id. 

The court's reasoning in Hunter serves to pinpoint the basic unfairness of the 

majority's policy choice. The majority concedes that state recoupment of unemployment 

compensation occurs "in many instances." (Slip op. 12 n. 10), thereby suggesting that the 

risk of a windfall recovery to the miner is limited. On the other hand the majority also 

concedes that the risk of any increased employer expense is variable and unknown. Slip 

op. 13 n. 11. Thus the majority's twin concerns-- miner windfall recovery, and increased 

employer payment -- are bottomed upon nothing more than vague speculation regarding 

624 
the effects of wide state-by-state legal variations. Notwithstanding the foregoing, the 

majority, in their zeal to ensure only that illegally discharged miners not receive a windfall, 

has adopted a national policy which wil1 at times provide an employer with a windfall setoff from his backpay obligation. I, as did the court in Hunter, find this choice to be 

illogical and unfair. Moreover, the majority's policy is directly in conflict with the Gullett 

Gin Court's expressed rationale which details the basis for its rejection of the employer's 

argument that under the experience-rating record formula it will be prejudiced. 

We doubt that the validity of a back-pay order ought to hinge on the 

myriad provisions of state unemployment compensation laws. (citations 

omitted.) However, even if the Louisiana law has the consequence 

stated by respondent, which we assume arguendo, this consequence 

does not take the order without the discretion of the Board to enter. 

We deem the described injury to be merely an incidental effect of 

an order which in other respects effectuates the policies of the 

federal Act. It should be. emphasized that any failure of respondent to 

quality for a lower tax rate would not be primarily the result of federal 

but of state law, designed to effectuate a public policy with which it ts 

not the Board's function to concern itself (citation omitted.) 

340 U. S. at 365. 

The majority has also concluded that "deducting unemployment compensation 

from backpay awards is not inconsistent with the Mine Act 's goal of deterring illegal 

conduct." Slip op. 12. 

leap of logic is too vast to be ignored. In fact, it is correct to state the 

opposite that adoption of a non-deduction policy is consistent with the Mine Act's goal 

deterring illegal conduct. There certainly is no deterrent value in establishing a policy 

whereby a violating operator may be relieved of his obligation to furnish illegally withheld 

pay from a discharged worker by off-setting his obligation by the use of state funds. In 

adopting a circuit wide mle of non-deductibility of unemployment benefits, the Third 

Circuit concluded that "the legislative history and Gullett Gin are persuasive, that the 

primary prophylactic policy ofTitle VII would thereby be better served." 721 F.2d at 85. 

Recognizing that backpay awards, have a prophylactic or deterring effect upon future 

discrimination the court also concluded: the extent that a backpay award is reduced 

by unemployment benefits, this purpose is diluted." 721 F .2d at 84. 

625 
Finally, I find it curious that the majority attempts to support its policy choice .4/ 

by noting that the Mine Act imposes a civil penalty upon offending operators. Slip op. 13. 

I see no relevance of this fact to the issue of what constitutes an appropriate, fair 

backpay award to a miner who has been illegally discharged. In commenting on the wide 

breadth of relief that the Commission should require under the Mine Act, the Senate 

Committee on Human Resources expressly stated "the relief provided under Section 

IO[S](c) is in addition to that provided under sections 10[4](a) and (b) and 10[5] for 

violations of standards." S. Rep. No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., 

Legislative History ofthe Federal Mine Safety and Health Act of 1977, at 623. 

For the foregoing reasons I would follow the reasoning of the Supreme Court, and 

the rule followed by the majority of courts, to not deduct unemployment compensation 

from backpay awards. I would therefore affirm the administrative law judge. 

In view of the fact that my colleagues have recently taken the unusual step of 

issuing a Direction for Review, sua sponte in the matter of Secretary of Labor on behalf of 

Clayton Nantz v. Nally & Hamilton Enterprises, Inc., Docket No. KENT 92-259-D 

(March 15, 1993) solely in order to review this one narrow issue, I can only presume that 

they are eager to provide the Secretary of Labor with the opportunity to present his views 

on this important issue, an opportunity unavailable to him in this matter arising under 

Section 105(c)(3). 

626 
Distribution 

Jonathan D. Fishbane, Esq. 

Roetzel & Andress 

75 East Harket St. 

Akron, OR 44308 

for Clifford Meek 

John C. Ross, Esq. 

Robertson, Ross, 

P.O. Box 35727 

Canton, OH 44735 

for ESSROC Corp. 

& Pidcock 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Pike, Suite 1000 

Falls Church, VA 22041 

627 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PEABODY COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

30, 1993 

Docket Nos. KENT 91-179-R 

KENT 91-185-R 

The Commission issued a decision in this matter on March 25, 1993, 

affirming in part and reversing in part the decision of the administrative law 

judge and remanding to the judge the issue of whether a disputed ventilation 

plan provision was "suitable" to the conditions of the mines in question. 

15 FMSHRC 381, 389 (March 1993). The Commi.ssion has subsequently received 

from Peabody Coal Company ("Peabody") a Petition For Reconsideration and For 

Stay Of Decision Pending Reconsideration ("Petition"). The Commission also 

has received from the Secretary of Labor a Response To Petition For 

Reconsideration ("Response"). 

All Commissioners have considered Peabody's Petition and the Secretary's 

Response and have agreed unanimously that the Chairman may issue an order 

setting forth their disposition of the Petition. 

The Commission held that the Secretary bears the general burden of 

proving that the disputed plan provision was suitable to the mines in 

question. 15 FMSHRC at 388. Peabody's Petition requests the Commission to 

that the bears the burden of proving not only that the 

disputed provision was suitable but also that Peabody's previously 

approved ventilation plans were no longer suitable. Petition at 4-7. The 

Secretary's Response states that, in the present case, where he seeks to have 

Peabody make changes in previously approved plans, he has no objection to 

bearing a burden of proving both the non-suitability of those plans and the 

suitability of the disputed plan ion. Response at l & n.l, 3. 

Upon consideration of the Petition and Response, the Commissioners have 

determined unanimously that the issues raised in the Petition are best 

resolved in the first instance by the administrative law judge on remand. 

Accordingly, the Petition is denied. 

For the Commission: 

Arlene Holen 

Chairman 

628 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL IIIRE SAFE'l'Y AIID BEATIJ'H REVIEW COIIIIISSJ:Oif 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 1993 

--sECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

: CIVIL PENALTY PROCEEDINGS . 

0 

: Docket No. KENT 92-380 

: A.C. No. 15-16592-03518 

: Docket No. KENT 92-419 

SPURLOCK MINING COMPANY, INC., : A.C. No. 15-16592-03517 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SARAH ASHLEY MINING CO., INC., 

Respondent 

: Docket No. KENT 92-420 

A.C. No. 15-16592-03519 . 

0 

No. 2 Mine 

-- : CIVIL PENALTY PROCEEDINGS 0 

. 

: Docket No. KENT 92-306 

: A.C. No. 15-12875-03556 

0 

0 

" a 

0 

0 

0 

0 

. 

0 

. 

0 

. . 

. . 

. . 

629 

Docket No. KENT 92-307 

A.C. No. 15-12875-03557 

Docket No. KENT 92-323 

A.C. No. 15-12875-03558 

Docket No. KENT 92-324 

A.C. No. 15-12875-03559 

Docket No. KENT 92-608 

A.C. No. 15-12875-03561 

Docket No. KENT 92-609 

A.C. No. 15-12875-03562 

Docket No. KENT 92-701 

A.C. No. 15-12875-03563 

Docket No. KENT 92-836 

A.C. No. 15-12875-03565 

Docket No. KENT 92-837 

A.C. No. 15-12875-03566 

Docket No. KENT 92-838 

A.C. No. 15-12875-03567 

Docket No. KENT 92-889 

A.C. No. 15-12875-03568 

No. 2 Mine 
DECISION 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, 

u.s. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Before: 

Hobart w. Anderson, President, Spurlock Mining 

Company, Inc. and Sarah Ashley Mining Company, 

Inc., Ashland, Kentucky, for Respondents 

Judge Melick 

These consolidated cases are before me upon the petitions 

for civil penalties filed by the secretary of Labor pursuant 

to section 105(d) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. 801, et ~, the "Act, 11 charging Spurlock 

Mining Company, Inc. (Spurlock) with 13 violations and seeking 

penalties of $1,197 for those violations and charging Sarah 

Ashley Mining Company, Inc. (Sarah Ashley) with 76 violations 

and seeking amended penalties-of $7,382 for those violations. 1 

There is no dispute that the violations were committed 

as alleged nor is there dispute concerning the Secretary's 

findings of gravity and negligence under Section 110(i) of 

the Act as noted on the face of the charging documents. 2 

It is also undisputed that Respondents are small operators 

and that they are no longer in business. In spite of this 

undisputed evidence, Respondents nevertheless assert that the 

proposed penalties would affect their ability to continue in 

business. Clearly, however, since they are no longer engaged 

in business, the proffered excuse is no longer relevant. The 

financial condition of Respondents is now only an issue of 

Docket Nos. KENT 92-323v KENT 92-324 0 

KENT 92-608u KENT 92-609, KENT 92-701, KENT 92-836, 

KENT 92-837, KENT 92-838 and KENT 92-889 were 

consolidated for purposes of this decision following 

hearings on September 4 0 1992v after the parties 

stipulated that the evidence taken at those hearings 

would apply as well to these cases. 

2 

follows~ 

Section 110(i) of the Act provides 8 in part, as 

uuin assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business 

of the operator charged, whether the operator was negligent, 

the effect on the operator's ability to continue in business, 

the gravity of the violation, and the demonstrated good faith 

of the person charged in attempting to achieve rapid compliance 

after notification of a violation." 

630 
collection and while the Secretary may have to stand in 

line with other creditors this is no longer an issue under 

Section 110(i) of the Act. 

In any event, the Commission has long held that absent 

--proof that the imposition of authorized penalties would 

adversely affect an operator's ability to continue in 

business it is presumed that no such adverse affect would 

occuro MSHA v. Sellersburg Stone Co., 5 FMSHRC 287 (1983), 

aff'd 736 F.2d 1147 (7th Cir., 1984). Hobart Anderson, a 

certified public accountant with a masters degree in business 

administration and 15 years experience in public accounting, 

testified at hearing on behalf of the Respondents. Anderson 

incorporated Spurlock around 1987 and incorporated Sarah Ashley 

in 1988 or 1989. They are closely-held corporations and 

Anderson is president and chief operating officer of both. 

Hobart Energies, Inc. (Hobart) owns 100 percent of the stock 

of Sarah Ashley, Spurlock and 13 other corporations apparently 

also intermittently engaged in the coal mining business, and 

Anderson owns 25 percent of the stock of Hobart. Anderson 

and former accounting partner David Griffith are the only 

two officers and directors of all these subsidiaries. Anderson 

sets corporate policy and is responsible for the management of 

Spurlock and Sarah Ashley. 

The financial evidence presented by Anderson primarily 

consists of state and Federal corporate tax returns, unaudited 

balance sheets, notices of tax and other liens, and copies of 

court pleadings apparently involving litigation by creditors 

against the Respondents and Hobart Anderson personally. While 

this evidence in itselfv as noted by the Secretary in his 

briefu may not be sufficiently reliable to provide a basis to 

evaluate impact of the proposed penalties, it is in any 

event ·toe limited scope o It is clear from the evidence in 

these cases that. relevant operating enterprise for evaluating the cr~~erion at issue must include not only Spurlock 

and Sarah Ashley but also, under either an equity theory or an 

alter ego theory, the individual shareholders of the larger 

operating enterpriseo 

Under applicable Kentucky law, under either theory 

the following factors must be considered when determining 

whether to pierce the corporate veil~ (1) undercapitalization; 

) failure observe corporate formalities; (3) nonpayment 

or overpayment of dividends; (4) siphoning of funds by major 

shareholders; and (5) guarantee of corporate liabilities by 

major shareholders in their individual capacities. White 

v. Winchester Land Development Corp., 584 S.W.2d 56 (Ky App. 

1979): u.s. v. WRW Corporation, et al., No. 91-6253 (6th Cir. 

Feb. 17, 1993) (1993 West Law 36152); United States v. 

Daugherty, 599 F.Supp. 671 (E.D. Tn. 1984). 

631 
In these cases Anderson admitted that both Spurlock 

and Sarah Ashley were thinly capitalized with only $1,000 

of capital investment each. The record demonstrates that 

this capitalization was insufficient to pay the normal 

expenses associated with the operation of coal mines. In 

addition, the evidence shows that corporate formalities have 

been disregarded. Since 1988 there have been no regular 

stockholder meetings and there has not been an accounting to 

all shareholders. The evidence further shows that Hobart 

Anderson is a personal guarantor on every bank loan to 

Respondents, that he posted the required bonds to enable 

Respondents to conduct mining operations, and that he has 

personally directed the reallocation of assets, including 

mining equipment between and among his network of 

corporations as if they were his own. 

Anderson himself concedes that no one tells him 

how to run the businesses. In particular, he notes 

that he makes all the decisions. about the allocation of 

corporate assets and decides when and where among the 

various subsidiaries to send the mining equipment. He 

injected more than $100,000 from Hobart into Spurlock 

for expenses and between $100,000 and $150,000 from Hobart 

into Sarah Ashley operating expenses while both companies 

continued to lose money. Anderson also made the decision 

for Hobart to pay Spurlock's $51,000 bank line of credit. 

Anderson also transferred equipment owned by Hobart to 

Sarah Ashley and Spurlock without charge. Hobart and some 

of its other subsidiaries also pay expenses on behalf of 

the Respondents. 

percent of eleven other corporate 

hearings as B&M Miningu Cross 

Mining Companyu DMV 

Mining Company, Mining Companyu Little Elkhorn 

Coal Companyu Oak Coal Companyu White Cloud Ming Company 6 

Ring Mining Company and Dusco. Anderson is president 

operating office all 13 corporations and has 

to act on behalf of all of them" 

, al'chough t.he evidence appears inconclusive 

regarding distribution of dividends to the individual 

shareholders and is no evidence that individual shareholders siphoned corporate funds, these factors alone 

do not mitigate against piercing the corporate veil in this 

case because Respondents were never sufficiently capitalized 

and appear have continuously operated at a loss. As the 

court held in the WRW case, to emphasize these two White 

factors under the circumstances would be to hold in effect 

that courts cannot pierce the veil of an insolvent corporation, 

despite the fact that all other factors favor piercing the 

corporate veilo 

632 
In addition to holding that the equities of this 

case support piercing the corporate veil, it is clear that 

the corporate veil should be pierced under the "alter ego" 

theory, because Respondents and Anderson did not have separate 

personalties. In light of the lack of observance of corporate 

-formalities or distinction between the individual and the 

corporations there was indeed a complete merger of ownership 

and control of Respondents with Anderson personally. ~, 

supra. 

Thus, even assuming, arguendo, that the criterion at 

issue is relevant to a mine operator already out of business, 

I do not find that Spurlock and Sarah Ashley would in any 

event have met their burden of proving that the proposed 

penalties of $1,197 and $7,382, respectively, would have an 

adverse affect on their ability to continue in business. 

Accordingly, and in consideration of the representations 

and documentation submitted in these cases regarding the 

criteria under Section 110(i~.of tne Act, I find that the 

penalties proposed are indeed appropriate. 

ORDER 

Spurlock Mining Company, Inc. is directed to pay 

civil penalties of $1,197 within 30 days of the date of this 

decision. Sarah Ashley Mining Company, Inc., i directed 

to pay civil penalties of $7,382 within 30 days f the date 

of this decision. 

Distribution~ 

Jl\~, J\ ' / \t v\JL-, ~. vl\j 

Gary Mellcl<: \ ~ 

Administ~ative ~j Judge 

Anne Knauffu Esq. Office the Solicitor 0 U.S. Department 

of Labor 9 2002 Richard Jones Roadv Suite B-201 9 Nashvilleu 

TN 37215 (Certified Mail) 

Hobart W. Andersonu Presidentu Spurlock Mining Co.u Inc. 9 

Sarah Ashley Mining Co. 9 Inc. 0 P.O. Box 989 0 Ashland, KY 

41105 (Certified Mail) 

/lh 

633 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE.OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APH 0 2 19S3 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING . MINE SAFETY AND HEALTH . ADMINISTRATION (MSHA), 

Petitioner 

. . Docket No. SE 92-181-D 

v. . . Mine No. 50 

LAD MINING INCORPORATED, LARRY : 

FlYNN AND RONALD CALHOUN, 

Respondent 

PARTIAL DECISION PENDING FINAL ORDER 

Appearances: Gretchen M. Lucken, Esq., Office of the solicitor, 

u.s. Department of Labor, Arlington, Virginia, 

Before: 

for Petitioner; 

Michael w. Boehm, Esq., and Thomas s. Kale, Esq., 

Spears, Moore, Rebman and Williams, Chattanooga, 

Tennessee, for Respondent. 

Judge Barbour 

STATEMENT OF THE CASE 

This case involves a discrimination complaint filed by the 

Secretary of Labor ("Secretary") on behalf of Jerry Lee Dotson 

pursuant to Section 105(c) (2) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. §815(c) (2) ("Act" or "Mine Actn). 

The Respondents are Larry Flynn, Lad Mining, Inc. ("Lad") and 

Ronald Calhoun. The essence of Dotson's complaint is as follows: 

(1) that Dotson was working at Mine No. 50; (2) that the 

operator for whom Dotson was working went out of business and 

closed the mine; (3) that shortly, thereafteru the mine reopened 

under a new operator 1 Lad Mining,Inc., and that Larry Flynn, the 

owner Lad, and Ronald Calhoun, the president of the company 

that leased coal rights to Lad, refused to hire Dotson to 

continue working at the mine because of Dotson's protected 

activity and in violation of Section 105(c) (1) of the Act. 1 

Section lOS(c)(l) of the Act provides 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, representative of miners or applicant for 

employment in any coal or other mine subject to this 

634 

(continued ••• ) 
Dotson seeks "reinstatement" to his former position as a 

miner, back pay with interest, all employee benefits lost because 

of the refusal to hire, and compensation for economic damages 

resulting from the refusal to hire. Dotson also seeks a cease 

and desist order barring the Respondents from further 

discriminatory conduct against Dotson and other employees, and 

expungement from Dotson's records of all references to the 

circumstances giving rise to the failure to hire. In addition, 

the Secretary seeks assessment of a civil penalty against the 

Respondents for their alleged violation of Section 105(c) (1) of 

the Act. Tr. I 5, 11. 2 A hearing on the merits of the claim of 

discrimination was held in Chattanooga, Tennessee. Helpful 

post-hearing briefs have been filed by counsels. 

COMPlAINANT'S CONTENTIONS 

At the commencement of the hearing, counsel for the 

Secretary outlined the case she intended to prove on Dotson's 

behalf. According to counsel~ the evidence would show that prior 

to working at Mine No. so, Dotson worked at Mine No, 15, where he 

made protected safety complaints to the operator, Lonnie 

Stockwell, about conditions at the mine. 3 The evidence would 

l( ••• continued) 

(Act] because such miner, representative of miners or 

applicant for employment, has filed or made a 

complaint under or related to the [Act), including a 

complaint notifying the operator or the operator's 

agent,or the representative of miners at the ••• mine of 

an alleged danger or safety or health violation in a 

coal or other mine or because such miner, 

representative of miners or applicant for employment 

is the subject of medical evaluations and potential 

transfer under a standard published pursuant to 

section [101] of this (Act] or because such miner, 

representative of miners or applicant for employment 

has instituted or caused to be instituted any 

proceeding under or related to this (Act] or has 

testified or is about to testify in any such 

proceeding, or because of the exercise of such miner, 

representative of miners or applicant for employment 

on behalf of himself or others of any statutory right 

afforded by this [Act). 

30 u.s.c. §815(c) (1) 

2 During the course of the hearing I determined that evidence 

relating to restitution issues should be deferred pending my decision with 

respect to whether the Respondents violated Section lOS(c)(l). Tr. I 94-95; 

Tr. II 211. Accordingly, this partial decision treats only the issue of the 

alleged violation. 

3 Counsel maintained that Stockwell was a contractor-operator of 

Tennessee Consolidated coal Corporation ("TCC"), that TCC controlled the coal 

(continued ••• ) 

635 
further show that Dotson also complained to the Mining 

Enforcement and Safety Administration ("MSHA") about conditions 

at the mine, and subsequent to his complaint, MSHA inspected the 

mine and issued citations and orders. 

According to counsel, when Dotson complained to Stockwell 

about conditions at the mine he was told either to mine in the 

face of the conditions or to quite, and he quite. Tr. I 8-9. As 

a result, Dotson filed a discrimination complaint against 

Stockwell alleging that he had been subjected to a discriminatory 

discharge. However, a few days after filing the complaint he 

changed his mind and withdrew it. Id. 

Counsel stated that shortly thereafter Dotson was hired by 

Alfred Meeks to work as a miner at Mine No. 50. Meeks, like 

Stockwell, was a contractor-operator of TCC. Counsel maintained 

that about one week after Dotson was hired, Calhoun went to Mine 

No. 50 and told Meeks that Dotson was a troublemaker and to get 

rid of Dotson. A few days later Calhoun returned and told Meeks 

that he, Calhoun, would arrangea meeting between stockwell and 

Meeks so that stockwell could tell Meeks about the trouble that 

Dotson had caused at Mine No. 15. Tr. I 9. Meeks declined the 

offer, and Dotson continued to work at Mine No. 50. 

Counsel further stated that approximately six months later, 

Meeks went out of business and closed Mine No. so. Approximately, 

one week later, Larry Flynn reopened the mine under the name of 

Lad Mining Incorporated and as a contractor-operator of TCC. 

Flynn hired all of the miners who previously had worked at Mine 

No. 50 with the exception of Dotson and another miner who had an 

attendance problem. Tr. I 9. Counsel asserted that Dotson was 

not hired because of protected activity while at Mine No. 15 

and that Lad~ Flynn and Calhoun were jointly and severally 

respons for violating Dotson 1 s Section 105(c) (1) rights. 

RESPONDENTS' CONTENTIONS 

Counsel for t.he Respondents answered that the Respondents 

not discriminated against Dotson and that, in any event, the 

Secretarygs case was based on several fallacious assumptions. 

According to counselu contrary to the Secretary 9 s contention, 

when a mine in the area closed and changed owners it was not a 

common practice for every miner who worked at the mine prior to 

it closing to be hired by the new operator. Rather, operators 

went through an application process and hired only those whom 

3 ( ••• continued) 

rights, which Stockwell leased from TCC, and that although Stockwell was the 

titular operator of the mine, TCC'e president, Ronald Calhoun, also, had 

control and influence over the operation of the mine in that he made frequent 

visits to the mine and oversaw its production and coste. Tr I 8-9, 11. 

636 
they needed. Further, Calhoun did not control hiring and firing, 

as shown by the fact that after Calhoun supposedly told 

operators not to hire Dotson, Dotson was hired by Meeks. 

Moreover, to accept the Secretary's position would be to accept 

that Dotson had a vested right to be hired by Flynn at Mine 

No. so, when, in fact, he did not. Flynn, as was his right, 

employed a standard method of hiring and filled positions as he 

needed thBm. The fact that Flynn had no need to hire Dotson did 

not suggest unlawful discrimination on Flynn's part. 

THE SECRETARY'S CASE 

Jerry Lee Dotson 

The Complainant was the first to testify. Dotson stated 

that he had worked as a miner since 1975o During that time, he 

had engaged in a number of different jobsf including operating 

continuous mining machines, shuttle cars 1 roof bolting machines, 

and tractors. He estimated that he had worked for a dozen 

operators in the area of Tennesseewhere he lives-- the Whitley 

Mountain area. 

From 1985 through January or February 1991, he worked at 

Faith Coal Company's ("Faith") No. 15 Mine. At that mine, he did 

a number of different jobs, including running a scoop, a roof 

bolting machine, a cutting machine and general maintenance work. 

Tr. I 20-21. 

Dotson stated that Lonnie Stockwell was the president of 

Faith. Tr. I 101. Dotson described Stockwell as a contractoroperator of TCC. Tr. I 20. Dotson understood that Stockwell 

leased the No. 15 Mine from TCC. Tro I 101. 

Ronald Calhoun the president TCC, and Dotson described 

·the relationship of Stockwell and Calhoun as he had observed ito 

He stated that Calhoun °

1guite often11 (Leo u more than two times a 

week) was at the mine. Tr. I 21. According to Dotson, Stockwell 

reported the mine 1 s daily production to Calhoun and informed 

Calhoun of any conditions that would cause a decrease 

production o Dotson reported Stockwell as saying 7 g~When IJJ:r 0 

Calhoun comes ... if you don°t run coal he gets on you." 

Tr. I 23. 

Dotson also described the events that he believed had led to 

differences with Stockwell and Calhoun. He stated that in 

December 1990 or January 1991, there were safety and managerial 

problems at the No. 15 Mine. Miners were working in what had 

been a sealed off area. In addition, some taxes were not being 

withheld from the miners' pay checks and FICA taxes were not 

being paid. Tr. I 24, 101, 159. According to Dotson, these 

problems lead to a strike. Tr. I 24. In the negotiations to end 

the strike, Calhoun represented management. 

637 
Dotson stated that during the strike, and in front of other 

miners, he told Calhoun, "[I]f you don't want to run these mines 

halfway right • • . get out of them and let somebody in here that 

will run them right because they will run." (He claimed that when 

he spoke to Calhoun about "running the mines right," he_was 

referring to working in the previously sealed off area and to 

withholding taxes. Tr. I 25-26.) Dotson described Calhoun's reaction~ "He didn't like it. He gets red faced. [H]e looks 

like he's got tobacco in both jaws. He could have bit a twenty 

penny nail in two that day." Tr. I 26. 

However, Dotson agreed that Calhoun had played a positive 

role ending the strike: that Calhoun talked to miners on the 

picket line, listened to their complaints about the way they were 

being paid, agreed that the miners were justified in striking, 

suggested they all talk to Stockwell to resolve the matter, and 

told Stockwell that he needed to pay the men right and give them 

the pay records they needed. Tr. I 104. 

After the strike, in February 1991, Stockwell again sent the 

miners to work in the area that had been sealed off. According 

to Dotson, the foreman did not want to work in the area because 

it was so dangerous. Dotson described being sent into the area 

as equivalent to "taking a gun and putting it up to somebody's 

head and pulling the trigger." Tr. I 28. Because of the danger, 

Dotson called MSHA Inspector Larry Anderson and told him that 

stockwell was "going to get somebody killed." Tr. I 29. This 

lead to an MSHA inspection of the mine on or about February 6. 

Tr. I 28, 105. In turn, the inspection led to citations and 

orders being issued against Faith and to a criminal investigation 

of Stockwell, an investigation in which Dotson was called to 

testifyo Tro I 30-40. Dotson believed that somehow &&the word 

got outu~ and both stockwell and Calhoun learned that he had made 

the safety complaint to MSHA that triggered the inspection. 

Tr. I 110-112. 

On or about February 18, 1991, Dotson was working under what 

he believed were bad roof conditions" Stockwell was in the mine 

and Dotson asked him for some jacks or timbers to support the 

roof" Stockwell did not respond and left the mine. Because he 

got no response from Stockwellf Dotson asked the foreman, Dennis 

Nunley, for the roof supports. Dotson testified that Nunley 

answered that if Dotson didnet like the job he should either 

leave or do another job. Tr I 40-41. When he came out of the 

mine at the end of the shift, Stockwell asked Dotson to stay and 

Stockwell, in front of Nunley and some others, asked Dotson what 

the problem was? Dotson described his safety concerns and the 

group argued with Dotson over whether or not the mining practice 

that lead to the need for the additional roof supports was 

permissible under the mine's approved roof control plan. 

Tr. I 46-47. Stockwell told Dotson that he did not have the plan 

at the mine, and Dotson went home. Tr. I 47. 

638 
The discussion resumed when Dotson returned to work the 

following morning. Finally, according to Dotson, Stockwell told 

him, "either do it the way we've always done it or ••• go to 

the house," meaning that Dotson should quit. Tr. I 48. Dotson 

described his response: "I just bowed my head and I said that the 

best. thing I can do is go to the house." Id. -

The_next day Dotson filed a discrimination complaint with 

MSHA and against Stockwell. Tr. I 51; c. Exh 2. Dotson also 

began looking for another job. A few days after he had left Mine 

No. 15, Dotson met James Earl Nunley, another contractor-operator 

with TCC. Dotson stated that Nunley told him if he proceeded 

with his discrimination action against stockwell he would not 

work again on the mountain (i.e., in any of the mines on Whitley 

Mountain). Tr. I. 55, 105. On February 28, 1991, Dotson 

withdrew the complaint. Tr. I 56, 58; c. Exh. 3. Dotson 

explained, "I thought • • • if I dropped this thing than 

everything would be hushed, I could go back to work and just let 

things go ••• I just needed..t:o work. I got a family." 

Tr. I 55. 

Eight to ten days later, Dotson was hired to work as a 

general laborer at Mine No. so. The mine was operated by Mosley 

Creek Coal Company and Alfred Meeks was the owner. Meeks leased 

the coal rights from TCC and was a contractor-operator with TCC. 

Tr I 61-62. Mine No. so is "on the mountain." 

As a general laborer Dotson performed a variety of jobs, 

including operating a shuttle car, a scoop and a roof bolting 

machine, as well as maintenance work. Tr. I 63. In getting the 

job at Mine No. 50, Dotson did not apply for any specific job, 

but rather for any job that was available. As Dotson stated, "I 

needed to work. uu Tr. I 64. 

Dotson was asked about the relationship of Meeks and 

Calhoun. He stated that, frequently, he had seen Calhoun at the 

mine. Dotson believed that Calhoun "stayed on" Meeks about 

production at the mine and that Meeks had to report the mine's 

production on a daily basis to Calhoun. Tr. I 65-66. 

Dotson worked for Meeks from late February 1991 until 

approximately August 12, 1991, when Meeks and Mosley Creek Coal 

Company went out of business. Although, he did not know for 

sure, Dotson believed that Meeks ceased mining because "he was 

tired and [Calhoun] was on him" to produce coal and to cut supply 

costs. Tr. I 66, 123. (Under the contractor-operator 

relationship, TCC purchased the necessary supplies.) 

Once Meeks ceased to operate Mine No. 50, Meeks told Dotson 

that approximately two weeks after hiring Dotson, Calhoun had 

come to the mine and told Meeks to get rid of Dotson. 

Tr. I 79, 117. According to Dotson, Meeks told Calhoun that 

639 
Dotson was hired subject to a ninety day probationary period and 

that if Dotson did not work out, Meeks would then get rid of him. 

Tr. I 79. Dotson recalled that Meeks also told him that Calhoun, 

subsequently, offered to arrange a meeting between Meeks and 

Stockwell; so that Stockwell could tell Meeks why Dotson should 

be fired. At that time, Calhoun told Meeks that Dotson-was "a 

troublemaker." Id. 

The same day that Meeks ceased operating Mine No. 50, Dotson 

stated that he learned a new operator was going to take over the 

mine. Meeks• son, Donnie Meeks, who was employed by his father 

as the mine foreman, told Dotson that he should go and see the 

new operator, Larry Flynn, because Flynn needed a crew for Mine 

No. 50. Tr. I 67. At the time, Flynn was operating another mine 

on the mountain, Mine No. 35. 

on the day after Mine No. 50 closed, Dotson telephoned Flynn 

and told him that he was looking for a job and that he would "do 

anything." Tr. I 68. According to Dotson, Flynn did not have a 

crew picked yet and he told Dotson that he would get back to him. 

Tr. I 68. Dotson believed that he called Flynn on or about 

Wednesday, August 14, 1991. During cross-examination, Dotson 

recalled the substance of their conversation: "He told me . • . 

he was fixing to be putting some men to work. He wanted to know 

what I could do •.. I told him I could do anything. And he 

said •.. I'm sure going to be putting some men back to work .. 

. I'll be getting back in touch with you ..• just as soon as I 

can use you ... I will get back a hold of you." Tr. I 128. 4 

on Friday, August 16 when he had not heard from Flynn, he 

went to Flynn's mine with three other men to talk to Flynn in 

person about a job. Dotson and two of the men previously had 

worked for Meeks Mine No. 50. The person who had not worked 

at Mine No. 50 was a young man with no previous mining 

experience. Tr. I 69-70. Flynn gave two of the men, Dewey Layne 

and Barry Mosley, applications. He told them to complete the 

applications and to be at Mine No. 50 at 6:00 a.m. 0 the following 

Monday to start work. Dotson maintained that it was another 

story as as he was concerned. He stated that Flynn looked at 

him and said that he would have to get back to him. Tr. I 69-70. 

(Dotson further stated that the young man with no mining 

experience was never considered by Flynn for a job.) Dotson was 

not given any explanation as to why he was told this, nor did he 

ask. Tr. I 158. 

4 This version of the conversation was more 

reported to the MSHA investigator on October 8, 1991. 

reported that he had called Flynn and asked him about 

stated that he would be getting right back to Dotson. 

640 

expansive than the one 

At that time, Dotson 

a job and that Flynn had 

c. Exh 4 at 4. 
Dotson stated, he was certain that during the discussion 

with Flynn he did not say anything to Flynn about wanting to only 

work at one job, as a roof bolter. Tr. I 70. Rather, he told 

Flynn that he would do anything. Tr I 72. However, he recalled, 

Flynn asked him what positions he had held when he worked for 

Meeks· and that he had told Flynn he had run a roof bolting 

machine. Tr. I 131. 

Flynn began operating Mine No. 50 on Monday, August 19. 

Tr. I 128. For the first two weeks that Mine No. 50 was in 

operation under Flynn's direction, Dotson worked as a security 

guard near the mine. Dotson stated that he had been hired by the 

county sheriff's department to guard some equipment that was the 

subject of a legal dispute between TCC and a bank holding a lien 

on the equipment. See Tr. 73. During this time, Dotson 

maintained that when he would see Flynn, he would tell Flynn he 

needed work and would do anything. Id. Flynn never offered 

Dotson a job. 

According to Dotson, Flynn hired all of the other miners who 

had worked at Mine No. 50 for Meeks, except Dotson and Davey 

Johnson, who had a bad absentee record. However, not all of the 

miners who had worked for Meeks were hired right away. Dotson 

stated that Hank Lawson, a roof bolter, first worked for another 

operator before Flynn hired him. Tr. I 76, 132. In addition, 

two others, Johnny Hamby and Ricky Burgan also were hired after 

working as miners for someone else. Tr. I 76. 5 

Dotson recalled that after failing to get employment with 

Flynn he continued to visit other mines on the mountain in order 

to find work. During one of these visits he happened to see 

Henry Harvey standing by the mine entrance talking to the 

operator of the mineo Dotson asked the mine operator about jobs 

the mine operator said that he had none available. Later, in 

November or December 1991, Dotson again saw Harvey at the post 

office. As Dotson remembered it, Harvey said that when he had 

seen Dotson at the mine he knew Dotson was wasting his time, that 

the operator had told Harvey that he could not hire Dotson, that 

everyone knew about his troubles with Stockwell. Harvey knew 

that somebody had 01 put the word out" on Dotson. See Tro I 83Q 

85-86. 

5 Dotson maintained that it was a common practice on the mountain 

for a new operator to hire the crew that had previously worked in the mine. 

His opinion was based on "common sense." "(IJf you've got good miners there 

and their record speak for theirself, they know the mines, they know the 

operation, they know the top, you'd be a fool not to keep these same men." 

Tr. I 145. However, he could not think of an occasion when a new operator 

came in and hired all of the previous miners. Tr. I 148. 

641 
Dotson stated that after he was not hired by Flynn, he 

continued to look for a job on the mountain and that he visited 

the eight to ten mines located there. For several months he was 

unable to get a job. In December 1991, he was offered a job at 

Mine No. 30, but he turned it down because of his concer~ that 

the mine was not safe. Tr. I 135. 6 

Dotson's believed that because of his safety complaints to 

Stockwell and because it had become known that he requested the 

MSHA inspection at stockwell's mine, Calhoun had, in effect, 

blacklisted him on the mountain and that Flynn and Lad in denying 

him employment, were complying with Calhoun's wishes that he not 

be employed because of his protected activity. 

ALFRED MEEKS, JR. 

The Secretary next called Alfred Meeks, Jr. to testify. 

Meeks stated that prior to going out of business on August 12 

or 13, 1991, he had worked for·27 years in the mining industry 

and that for 18 or 19 of those years he had been associated with 

TCC, either as an employee or as a contractor-operator. 

Tr. I 177. Regarding Mine No. so, Meeks testified that he was 

asked by Calhoun if he wanted to operate the mine and ultimately 

he became the operator under a contract arrangement with TCC. 

Tr. I 177-178. (Prior to operating Mine No. so, Meeks had 

operated two other mines as a contractor-operator for TCC. 

Tr. I 202-206.) It took several months for Meeks to get Mine No. 

50 to the point where production could begin and during this time 

TCC paid all of Meeks' expenses. Once mining began, TCC paid all 

of Meeks' costs and Meeks received a salary. TCC purchased all 

of the coal that Mine No. 50 produced. Tr. I 213-214. 

Meeks described Calhoun as being very involved in the 

running of Mine No. 50. According to Meeks, Calhoun decided in 

which direction to mine coal and Calhoun was constantly concerned 

about increasing production. Tr. I 179-181. Calhoun, 

frequently, would come to the mine and would ask how many trucks 

of coal had been loaded and what were the mining conditions. In 

additionv Calhoun was concerned that Meekse supply costs were too 

high. Tr. I 182-183, 190-191, 216-217. Meeks understood that 

TCC had a contract requiring it to provide coal to TVA. He also 

understood Calhoun to believe that if TCC was to survive 

economicallyp Mine No. 50 had to be a productive mine. 

Tr. I 218. 

6 Dotson also stated that he turned down the job because he was 

advised by "his lawyer" not to go back to work on the mountain. Tr. I 

140-141. Dotson's testimony regarding the advice is confusing. It seems to 

have been given after he declined the offer. It also appears that the advice 

was based upon events unrelated to this case. Tr I. 153-156. 

642 
Despite Calhoun's concern with production and cost, Meeks 

testified that he, Meeks, was solely responsible for hiring and 

firing at the mine. Tr. I 231. Meeks hired Dotson on 

February 28, 1991. Dotson was hired to operate a roof bolting 

machine and to do anything else that Meeks needed him to do. 

Meeks explained that he would not hire a person to do only one 

job because "they ha[ve] to pitch in and do other jobs." Tr. I 

192. Thus, while working at Mine No. 50, Dotson not only 

operated a roof bolting machine, he also ran a scoop, cleaned the 

belt line, hung ventilation curtains, and "did anything that he 

was asked to do.u Id. Meeks described Dotson's skills, 

attendance and attitude as "excellent." Tr. I 193. 

Turning to his conversations with Calhoun involving Dotson, 

Meeks stated that when he told Calhoun that he had hired Dotson, 

Calhoun 11 said ••. Dotson is nothing but a 'GDI troublemaker 

(and that I] had better get rid of him." Tr. I 193. Meeks 

testified he responded that Dotson was on a 90-day probationary 

period and if he caused Meeks trouble during that time, Meeks 

could let him go. Id. Meeks stated that this conversation 

occurred about one week after he had hired Dotson. Tr. I 194, 

221. Meeks was positive the conversation did not occur during 

labor trouble at another mine and that the conversation did not 

involve a strike at another mine. Tr. I 194. 

Meeks also stated that he had a second conversation with 

Calhoun concerning Dotson. Meeks testified that a few days later 

Calhoun came to the mine and told Meeks that Stockwell would come 

to the mine and that Meeks could talk to Stockwell and find out 

from stockwell "what kind of a man •.. Dotson was." Tr. I 194, 

221. HoweverQ Meeks stated that he was not interested in talking 

to Stockwell. Tr. I 194-195. At the time, the only person Meeks 

about conversations with Calhoun was his son~ Donnie 

Meeksu section foreman at Mine No. 50. Tr. 195-196. Calhoun 

did not raise the subject again with Meeks and Dotson remained 

employed at Mine No. 50 until Meeks ended the operation. Tr. 221. 

Meeks terminated mining activity on or about August 13u 

1991, because he was ~tired of constant harassment day and day 

out for more production and to cut supply costs . . . I just had 

enough." Tr. I 196. Meeks testified when he shut down he told 

Calhoun that a 91 good bunch of men" had worked for him and that 

Calhoun responded that he wanted to get them all back to work. 

Tr o I o 198 o 

DONNIE MEEKS 

The Secretary subpoenaed Donnie Meeks. Donnie Meeks stated 

that in February 1991, while he was acting as foreman at Mine 

No. 50, his father told him that Calhoun had said that Dotson had 

caused trouble and his father had asked him to keep an eye on 

Dotson in order to see what kind of an employee he was. 

643 
Tr. I 236. He confirmed his father's testimony that Dotson 

worked as a roof bolter and that he also did anything else that 

needed to be done. Tr. I 236. 

After his father went out of business, Donnie Meeks stated 

that_he spoke with Flynn over the telephone and gave Flynn the 

names of all of the employees at the mine, including Dotson, and 

told Fly~n what they could do. As he recalled, he told Flynn 

that Dotson could operate, among other things, a roof bolting 

machine, a shuttle car and a scoop. Tr. I 238-239. 

However, Donnie Meeks confirmed that not everyone who had 

worked for his father was hired by Flynn. Davey Johnson, who had 

an absentee problem, was not hired and Johnny Hamby and Ricky 

Burgan were not hired immediately. (Donnie Meeks did not state 

why Hamby and Burgan were not hired when Flynn commenced 

operation of the mine.) 

Donnie Meeks also recalled that Flynn brought two miners 

with him, Johnny Jones and Buck Harris. Harris was employed as a 

roof bolter. (In addition, Harris was authorized to act as a 

mine foreman. He could fill-in as mine foreman if Donnie Meeks 

were sick. Tr. I 248.) Jones was employed to do general 

maintenance. Tr. I 240-241. Harris came with Flynn the day 

Flynn began mining. Jones came approximately one month later. 

Tr. I 242. Donnie Meeks also stated that a miner named Jerry 

Boston came to work at Mine No. 50 from one of Flynn's other 

mines, but that too was later. Id. 

Donnie Meeks gave his opinion that when hiring a roof 

bolter, it is advantageous to hire someone who knows the roof and 

is familiar with the mine. Tr" I 243-244" 

lBtENRY HARVEY 

The Secretary also subpoenaed Henry Harvey to testify. 

Harvey stated that he had worked as a miner for 27 years, 17 of 

which were with TCC. During his mining career, he had occasion 

to supervise Dotson. He described Dotson as a good worker, who 

never missed 2 day and who always did any job asked of him. 

Tr. II 8-10. Harvey stated that in October or November 1991, he 

worked at a mine operated by James Earl Nunley and that he and 

Nunley were s·tanding together when Dotson pulled up in the mine 

parking lot. Harvey assumed that Dotson was looking for a job 

because when someone comes to a mine that is usually why. 

Tr. II 12-13 Nunley said to Harvey uv[I]t won't do him any 

good." Tr. II 11. 

In January 1992, Harvey saw Dotson at the post office. He 

asked Dotson if Dotson had asked Nunley for a job that day? 

Dotson responded that he had and that Nunley told him that he did 

not need any miners. Harvey responded that this was strange 

644 
because Nunley had hired people after telling Dotson that he did 

not need anybody. Tr. II 15-16. Harvey added, "I told Jerry, in 

my op1n1on, it looked like somebody had put the word out on him 

not to hire him." Tr. II 16-17. 

RESPONDENTS' CASE 

LARRY FLYNN 

Larry Flynn, the forty-nine-year-old president of Lad 

Mining, Incorporated, was the first person to testify for the 

Respondents. Flynn stated that Lad was formed in July 1987. 

Since that time he had been a contractor-operator of TCC and had 

constantly operated Mine No. 35. Also, there had come a time 

when he became the operator of Mine No. 50, and Flynn described 

how that happened. 7 

On approximately the same day that Meeks ceased mining, 

Flynn met Calhoun who told him about Meeks' decision to shut 

down. Calhoun asked Flynn if.he would be interested in taking 

over the operation? Flynn responded that he would have to look 

at the mine first. Tr. II 51. There was no discussion of 

Dotson, whom Flynn had never met and did not know. Tr. II 52. 

Flynn went to Mine No. 50. After he had examined it, he met 

Donnie Meeks who asked if Flynn were going to take over the mine? 

Flynn stated that he was not sure, that he would have to talk to 

Calhoun. Flynn stated that Donnie Meeks responded he would like 

to work for Flynn as a foreman if Flynn decided to operate the 

mine. Tr. II 55. Flynn told Donnie Meeks that he had heard good 

things about him and that he would give him a job if he decided 

to run the mine. Donnie Meeks saidu 01 I? 11 send you some more 

people you take mine over. 00 Id. 

Flynn a stated that he not recall a telephone 

conversation with Dotson on that date regarding Dotson's desire 

for any type of job should Flynn operate Mine No. 50. Tr. II 62. 

Subsequen·tly" t:.o Mine No. 50 and on 

approximately Friday, August 16 he called Donnie Meeks and asked 

him to come to ·the mine ·the next day 'co help get ·the mine ready 

to reopen. same Fridayv Dotson, Dewey Lane and Barry Mosley 

came to Mine No. 3 5 to speak 'irJi th They asked if were 

going to reopen Mine No. 50. When Flynn responded affirmatively, 

they asked if he needed miners and Flynn said that he dido 

According to Flynnu asked the three what they could doo 

Dotson asked Flynn for a roof bolting job. Flynn stated that he 

told Dotson he already had roof bolters, that he did not need any 

more, but that if he did, he would be in touch with Dotson. 

7 Flynn no longer operates Mine Noo 50. 

645 
Tr. II 56-57. 8 (Flynn was asked about the basis for his 

recollection of the meeting, and he testified that shortly after 

the commencement of this discrimination action he had spoken with 

Dewey Layne about what had transpired. He said to Layne, "I 

don't remember for sure and I want to know everything I said to 

[Dotson]." Tr. II 63. Flynn's testimony thus reflected what 

Layne had told him. Tr. II 63-64.) 

Flynn explained that he had decided to take a roof bolter 

named Bradley Shipley to Mine No. 50, as well as one named Buck 

Harris. Tr. II 57, 59. (As it turned out, Shipley never showed 

up to work at Mine No. 50 (Tr. II 59) and of the two, the sole 

roof bolter who went to Mine No. 50 was Harris.) According to 

Flynn, three months before the Mine No. 50 situation arose, he 

had discussed with Calhoun the possibility of opening a different 

mine and at that time Harris had asked if he could work at the 

other mine as a roof bolting machine operator? Flynn stated that 

the mine he was interested in opening was near Mine No. 50 and 

that both mines were closer tQ.Harris' home than was Mine No. 35. 

Tr. II 57-58. Harris was a qualified roof bolter as well as a 

mine foreman. The advantage of employing a person with foreman's 

papers was that mining could continue if the regular foreman was 

for some reason unable to work. Tr. II 59. 

Flynn began mining on Monday, August 19. When Shipley did 

not report for work, Flynn needed to hire another roof bolter. 

(Flynn maintained that unbeknownst to him, Shipley had been on 

layoff when he was hired and that he had been called back to 

work. Tr. II 115.) Flynn stated that the choice was then 

between Dotson and Hank Lawson, both of whom had worked for Meeks 

when he ceased operation. Because he did not know either man, 

Flynn asked Donnie Meeks about them. According to Flynn, Donnie 

:Meeks sai6 tha·t both were good workers. Flynn then asked who was 

·the bes'c J and. Donnie lllleeks said that Lawson was and Flynn hired 

Lawson. 'I'r. II 60-6L 9 Flynn acknowledged, however, that he 

had not told the MSHA investigator about this conversation with 

Donnie Meeks. Alsou he did not mention the conversation when 

Dotson°s counsel deposed him in April 1992. Tr. II 121-122. 10 

Flynn stated that he did not give an application to Dotson because 

he only gave applications to people he was going to hire. Tr. II 138. 

9 Flynn stated that he told Dotson that he would hire him as a roof 

bolter for the second shift when he started one. However, Flynn never heard 

from Dotson again about employment. Tr. II 113. 

10 Donnie Meeks testified on the first day of the hearing and was 

excused as a witness after the Secretary rested. Counsel for the Secretary 

wanted to recall Donnie Meeks as a rebuttal witness concerning Flynn's 

testimony that Donnie Meeks had recommended Lawson over Dotson. However, 

counsel decided not to do so after a telephone conversation with Donnie Meeks. 

(continued ••. ) 

646 
Flynn was asked whether it was an usual practice to hire all 

previous workers when a mine was reopened? Flynn stated that he 

had never heard of such a thing, that he had no knowledge of an 

entire crew being rehired. He testified that when he reopened 

Mine No. 35 he had hired only one person from the previous crew. 

Tr. II 68. However, he confirmed that he brought only two of his 

employees to Mine No. 50 -- Buck Harris as a roof bolter and 

Jerry Boston as a belt man -- and that other than these two, the 

rest of the men he used at Mine No. 50 previously had worked 

there. Tr II 99. Whether he hired all of the previous workers 

except Dotson and Davey Johnson, Flynn could not say. 

Tr. II 100. 

Flynn described a very different relationship with Calhoun 

than had Meeks. The Calhoun depicted by Flynn did not come to 

the mine on a regular basis. He might come once or twice a week, 

or he might not come for two weeks at a time. He also telephoned 

infrequently. Tr. II 81-82. Flynn maintained that he did not 

report mining conditions to <;:~lhoun on a regular basis and that 

although, he completed production reports he did not know if 

Calhoun reviewed them. Tr. II 83. However, Flynn recalled 

Calhoun telling him that Calhoun wanted Mine No. 50 to be a big 

producer of coal. Tr. II 82. According to Flynn, it was Calhoun 

who pressed for the addition of the second shift. As Flynn 

described it, Calhoun "said they needed the coal bad." 

Tr. II 84. 

Flynn also stated that Calhoun never attempted to influence 

his decisions regarding hiring and firing, that Flynn had never 

even recommended someone that he might hire. He further stated 

that before this discrimination case was brought he had never 

discussed Dotson with Calhouno Tro II 68-69o Flvnn claimed that 

until he was deposed in connection with this case-he had never 

heard of t.he discrimination complaint that Dotson filed against 

Stockwell and Faith Coal Company" Tro II 72o 

ROY CALHOUN 

Roy Calhoun, president and chief executive officer of TCC, 

was the last witness for the Respondentso Calhoun explained that 

TCC has 15 to 18 million tons of coal reserves in southeastern 

Tennesseeu all but approximately 5 million of which are leased 

from USX Corporationo TCC does not mine coal, but rather 

contracts with others to mine its reserveso Tro II 145-147o 

Calhoun also explained that under the contractor-operator 

arrangement between TCC and the actual operator, the operator has 

full responsibility for everything relating to the operator's 

lO( ••• continued) 

She reported that Donnie Meeks stated that he had no recollection of the 

conversation. Tr. II 208. 

647 
employees, including hiring and firing. Further, the 

contractor-operator, also, is responsible for submitting all 

required plans to MSHA, except that TCC supplies an up-to-date 

map of the mine workings. Because TCC leases the coal reserves, 

it makes the decisions regarding the direction of mining so that 

future mining of the reserves will not be jeopardized. - Tr. II 152-154. 

Calhoun stated that while it was not his practice to go to 

all of the mines of TCC's contractor-operators on a daily basis, 

he did go to Mine No. 50 more often than to the others. Indeed, 

Calhoun acknowledged that he went to Mine No. 50 "fairly 

regularly"e because the mine was under development and needed to 

be looked at more closely than the others. Tr. II 155-156, 170. 

Still, he maintained, he did not go daily to the mine nor did he 

call Meeks every night at home. Tr. II 156. 

Calhoun's version of the strike at Mine No. 15 differed from 

Dotson's. Calhoun stated that_the •trike was solely about 

economic issues -- Stockwell was not showing that he was 

withholding FICA taxes on the miners' pay slips and he was not 

paying additional money that he had promised the miners for 

increased production. Tr II 158-160. Calhoun was advised of 

this by miners on the picket line, including Dotson, and he went 

to discuss the situation with Stockwell and was successful in 

resolving the matter. Tr. II 159. (Calhoun made no mention of 

any complaints regarding safety or of any discussion with Dotson 

alluding to safety.) 

After leaving Mine No. 15, Calhoun stated he went that same 

day to Mine No. 50 where Meeks asked him about the strike. 

Calhoun testified that he told Meeks what he knewu but that when 

Meeks persisted inquiring; Calhoun told him if he wanted to 

](now more about what was going onr he (Calhoun) would arrange a 

meeting between Stockwell and Meeks. When Meeks then asked who 

was on the picket line, Calhoun mentioned, Dotson and "a bunch 

more." Tr. II 162. Calhoun stated that he had no recollection 

of Meeks telling him that he had hired Dotson. Tr. II 186. 

Calhoun denied ·that he had ever told Meeks to fire or to get rid 

of Dotson or that he had ever told Meeks that Dotson was a 

troublemaker. Tr. II 162v 186-187. 

Calhoun also claimed that he never discussed Dotson with 

Flynn. Further 9 he stated that his e

9recommendations 11 to Flynn 

concerning who should be employed consisted of advising Flynn 

that someone wanted to work and saying something to the effect 

that 11 [i]f you have anything, there's a man that's available." 

Tr II 166. 

With regard to his knowledge of Dotson's contacts with MSHA, 

Calhoun claimed that the first he knew of the MSHA "raid" on Mine 

No. 15 (i.e., the "blitz" inspection of February 6, 1991, that 

648 
Dotson requested and that resulted in criminal charges being 

brought against Stockwell) was when his deposition was taken for 

this discrimination proceeding in April 1992. Tr. II 162. He 

acknowledged, however, that it was "unusual" that he did not know 

sooner. Tr. II 199. Calhoun claimed that if he had knpwn, he 

probably would have closed the mine. Tr. II 192. 

Further, Calhoun claimed that until the MSHA investigator 

took his statement with respect to this case, he had no prior 

knowledge of Dotson's previous discrimination complaint against 

Stockwell. Tr. II 163. 

Calhoun maintained that it was not a common practice for a 

new operator to hire all miners, previously employed at a mine 

and that he knew of no instance where a new contractor-operator 

hired 100 percent of the previous miners. He stated that while a 

new operator usually would check with the previous operator and 

would hire some of the previous miners, if he operated another 

mine, the new operator usually"".woulc;l bring with him some of the 

miners from the other mine. Tr. II 164. As Calhoun explained, a 

new contractor-operator is under no legal obligation to hire the 

previous miners, and Calhoun did not believe that a previously 

employed miner had a legitimate expectation to be hired, even if 

he had a good work record and was recommended by his old foreman. 

Tr. II 191. Calhoun stated, "I think .•• a coal mine operator 

ought to have his right to hire who he wants to for his mine. 

He's the one paying them. He's the one that works them and he 

should be the one that makes that decision." Tr. II 192. 

APPLICABlE CASE LAW 

In order to establish a prima facie case of discrimination 

under Section 105(c of the Act 1 a complaining miner bears the 

burden of production and proof to establish 1 (1) that he engaged 

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. 1 2 FMSHRC 2768 (1980), 

rev 1 d on other grounds sub nom.u Consolidation Coal Company v. 

Marshall, 663 F.2d 1211 {3d Cir. 1981); Secretary on behalf of 

Robinette Vo United castle Coal Company, 3 FMSHRC 803 (1981); 

Secretary on behalf of Jenkins v. Hecla-Day Mines Corporation, 6 

FMSHRC 1842 (1984); Secretary on behalf of Chacon v. Phelps Dodge 

Corp.ff 3 FMSHRC 2508 (November 1981) 1 rev'd on other grounds sub 

nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). 

The operator may rebut the prima facie case by showing either 

than no protected activity occurred or that the adverse action 

was in no way motivated by the protected activity. 

With regard to establishing that the adverse action 

complained of was motivated in any part by protected activity, 

the Commission has acknowledged the not-infrequent difficulty the 

Complainant faces in establishing a motivational nexus between 

649 
protected activity and the adverse action that is the subject of 

the complaint when the link between the protected activity and 

the adverse action cannot be supplied by direct evidence. The 

Commission has stated that such "[d]irect evidence of motivation 

is rarely encountered; more typically, the only available 

evidence is indirect •.• 'Intent is subjective and in many cases 

the discrimination can be proven only by the use of 

circumstantial evidence.fi" Chacon, 3 FMSHRC at 2510 (guoting 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965)). In analyzing the evidence, whether it be circumstantial 

or direct, the Commission and its judges are free to draw 

reasonable inferences. Melrose, 351 F.2d at 698. 

If the operator cannot rebut the prima facie case, it may 

nevertheless affirmatively defend by proving that it was also 

motivated by the miners' unprotected activity alone. The 

operator bears the burden of proof with regard to the affirmative 

defense. Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982). 

The ultimate burden of persuasion does not shift from the 

Complainant. Robinette, supra; See also Boich v. FMSHRC, 719 

F.2d 194 (6th Cir. 1983); Donovan v. Stafford Construction 

Company, 732 F.2d 954 (D.C. cir. 1984) {specifically approving 

the commission's Pasula-Robinette test). See also NLRB v. 

Transportation Management Corporation, 462 u.s. 393, 397-413 

(1983) (where the Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act). 

COMPLAINANT'S PRIMA FACIE CASE 

The Secretary claims that the evidence establishes that 

Dotson engaged protected activity in January and February 

1991 when he was employed by Stockwell. According to the 

Secretary Dotson's protected activities are~ (1) his complaints 

to Calhoun about unsafe mining practices during the strike at 

Mine No. 15, (2) his request to MSHA for an inspection of the 

minep (3) his complaints to Stockwell about unsafe conditions and 

practices at the mine and (4) filing of a discrimination 

complaint against Stockwello According to the Secretary 1 Flynnijs 

refusal to hire Dotson August 1991 when Flynn took over Mine 

No. 50 was directly motivated by these activities. See Sec. 

Br. 18-19, 31-32. 

PROTECTED ACTIVITY 

Reviewing each of the alleged protected activities in 

sequence, I conclude the evidence establishes Dotson engaged in 

protected activity while employed by Stockwell with respect to 

Nos. 2, 3 and 4. 

650 
Dotson's Safety complaints to Calhoun 

The Secretary's first contention is that Dotson engaged in 

protected activity when he complained to Calhoun about safety 

conditions during the strike at Mine No. 15. I do not b~lieve 

that the evidence allows a conclusion that Dotson actually made 

such a complaint. While, it is clear that the strike involved 

economic issues, the record does not establish that it also 

involved safety issues. Dotson maintained that his statement to 

Calhoun that "[I]f you don't want to run these mines halfway 

right • . . get out of them and let somebody in that will run 

them right because they will run" referred to both the 

withholding of taxes and to unsafe working practices at the mine. 

Tr. I 25-26. Howeveru the statement is general and open to 

interpretation. On its face it does not clearly relate to safety 

nor does the testimony regarding the context in which it was 

delivered tie it to safety. Certainly, Calhoun, the only other 

person who was present and who testified, did not indicate that 

he understood a safety complaint had been made to him at the 

time. Indeed, he did not mention any complaint made by Dotson 

nor did he indicate that he understood the strike to involve any 

safety-related issues. See Tr. II 158-160. In fact, I find the 

weight of the evidence to be that it did not. 

Dotson's rendition of how the strike was resolved 

essentially corresponds with Calhoun's. Tr II 158-160. As 

Dotson himself testified, Calhoun's involvement in the strike 

lead to its successful resolution, when Calhoun intervened with 

Stockwell on the miners' behalf and advised redress of their 

economic complaints. Tr. I 104. Even more telling, in my view 

is the factu that on October 7u 1991u when Dotson filed his 

discrimination complaintv he did not mention his strike-related 

statement to Calhoun as a reason for the alleged discrimination. 

See C. Exh. 4 at 2. Furtherr although four days later he told 

the MSHA investigator that he guessed his statement "made the man 

mad at meu 11 he did not then link it with any expression of his 

safety concerns. c. Exh 5 at 9. 

Dotson°~ Inspection Request 

The Secretary next asserts that Dotson engaged in protected 

activity when in early February 1991u he requested an MSHA 

inspection of Mine No. 15 because of what he believed to be 

unsafe mining practices. Sec. Br. 20. There is no doubt that 

Dotson made the request that resulted in the inspection of 

Stockwell's mine. Dotson's testimony in this regard was not 

disputed by the Respondents. Tr. I 29 and 105. Such a request 

is protected activity under the Act. 

651 
Dotson 9 s Safety Complaints to Stockwell 

and 

Dotson°s Discrimination Complaint against stockwell 

The Secretary also asserts that Dotson's safety complaints 

to Stockwell in late February 1991 were protected. Sec. Br. 20. 

Dotson's testimony to the effect that he complained to Stockwell 

on or about February 18, 1991, regarding mining practices 

resulting in the need for additional roof support was not 

refuted. Tr. I 46-47. It was, of course, these complaints that 

lead to the alleged order from Stockwell to either continue the 

practice or "go to the house" and Dotson's resulting short-lived 

discrimination complaint against Stockwell. 

I accept Dotsonis unrebutted testimony concerning his 

complaints to Stockwell. His testimony at trial describing his 

discussion with Stockwell essentially corresponded with his 

nearly contemporaneous account of the same discussion in his 

discrimination complaint. See c. Exh. 2. A miner's safety 

complaints when reasonable and made in good faith are protected. 

Further, the filing of a complaint of discrimination is protected 

activity. I conclude, therefore, that when Dotson complained to 

Stockwell and when he filed the complaint charging Stockwell with 

discrimination he engaged in activity that cannot be the basis 

for subsequent retaliation. 

ADVERSE ACTION 

Having established protected activity, Dotson must prove 

that he suffered an adverse action. The adverse action of which 

Dotson compla that he was denied employment by Flynn at 

No, 50 r '~c¥her: 'tool< over as the opera tor of the mine. 

Dotson and agreed that Dotson sought and was denied 

employmen·c and Lad 

I credit Dotsonvs testimony that he telephoned Flynn on or 

about Wednesday 9 August 14, 1991, and asked for employment. 

Dotson had of lephone 

conversation, had none. Tr. I 67-68, Tr. II 62. In 

addition approximately two months after the conversation, Dotson 

t.he MSHA t.hat he had made the call. Co Exho 5 

at 4. Dotson credibly stated that Flynn said that he would get 

back Dotson, but did not, and Dotson was never 

hired. 

In addition, Dotson testified that on Friday, August 16, 

1991, he went to Mine No. 35 and spoke with Flynn about working 

for Flynn at Mine No. 50o Tr. I 69-70. Flynn agreed that Dotson 

had come to Mine No. 35 on August 16. Tro II 56-57. Although, 

Dotson and Flynn gave decidedly different versions of what 

transpired at the meeting, both agreed that the reason Dotson was 

at the mine was to seek employment. Dotson also stated that 

652 
after Flynn took over operating Mine No. 50 and during the time 

that Dotson was employed as a security guard, he asked Flynn for 

employment whenever he would see Flynn. Tr. I 73. Flynn did not 

testify regarding these contacts with Dotson and I credit 

Dotson's testimony. It is clear that Dotson was anxious for work 

and I find it reasonable to believe that he asked Flynn-about 

employment whenever the opportunity to do so presented itself. 

The record thus establishes that Dotson repeatedly sought 

employment at Mine No. 50, and I so find. An adverse action is 

an act of commission or omission by an operator that subjects the 

affected miner or applicant for employment to discipline or to a 

detriment in an employment relationship. Secretary on behalf 

of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC at 1847-48. 

Failing to be hired by Flynn and Lad meant that Dotson had no 

employment relationship, which was certainly a detriment, to say 

the least. It is clear, therefore, that Dotson established he was 

subjected to an adverse action. 

Having established protected activity and adverse action, 

the next question is whether Dotson, also, established that in 

denying him employment, any or all of the Respondents were 

motivated by his protected activity. 

MOTIVATION 

Dotson presented no direct evidence that he was denied 

employment because he had complained about safety conditions, 

requested an inspection and had filed a discrimination complaint 

while he was employed by stockwell. However, as noted, the 

Commission has recognized that such evidence is rarely available 

to a complainant and has made clear that a finding of 

discriminatory motivation may be made on basis of 

circumstantial evidence. Chacon; 3 FMSHRC at 2510. 

The Commission has listed some of the more common circumstantial 

indicia of discriminatory intent~ (1) knowledge of the protected 

activity; (2) hostility or animus towards the protected activity; 

(3)coincidence in time between the protected activity and the 

adverse action; and (4) disparate treatment the complainant. 

FMSHRC at 2510. 

A logical approach for analysis of a motivation question is 

to accept as a starting point that something, at this point 

unknown, motivated Flynn to reject Dotson as an employee and to 

deduce what was. 11 This is the approach adopted by the 8th 

11 The Respondents point out, correctly, I think, that this is not a 

case of an employee seeking to be rehired. When Meeks went out of business, 

his employees' jobs ceased. Thus, Dotson's employment with Meeks had ceased. 

Flynn was a new operator. In general, I agree with Calhoun that a new 

contractor-operator is under no legal obligation to hire miners who had 

(continued •.• ) 

653 
circuit in Melrose, 351 F.2d at 698-700 1 and it is one that 

courts frequently have followed. 

The approach begins with the elimination of certain 

motivational factors that are usually offered in these types of 

cases. There is no suggestion that Dotson was incompetent, had a 

record of absenteeism, had a poor safety record or that Flynn or 

Calhoun had any personal animosity (i.e., extra-mining related 

animosity) toward Dotson. 

Dotson had been mining coal since 1975. In that capacity he 

had engaged in a wide variety of tasks. After Dotson left his 

job at Faith Coal Company, he was hired shortly thereafter by 

Meeks. Meeks described Dotson as a man of "excellent" skills, 

attitudeq and attendance, and I credit his testimony. Tr. I 193. 

Afterall, it would hardly have been in Meeks's interest to employ 

someone who did not have these qualities. In addition, Donnie 

Meeks, who was Dotson's foreman and thus should know, described 

Dotson as a "good miner" with "good" skills. Tr. I 237. 

Further, Dotson's reputation as-a good, willing and reliable 

worker was confirmed by Harvey, another former supervisor of 

Dotson. Tr. II 9-10. 

Also, there is no suggestion in the record that Flynn's 

lure to hire Dotson was the result of any personal hostility. 

There was no testimony that prior to Flynn taking over Mine No. 

50, he and Dotson were even acquainted. Moreover, there was no 

indication in the record that Calhoun had any extra mine-related 

animus toward Dotson. As described in the record, Calhoun's 

knowledge of and contacts with Dotson were based solely on 

Dotson 1 s mining activities, first, with stockwell, and second, 

\:J i th Ic1eeks o 

.1.cc ·cne :fact. :cemains t.ha:c Flynn did not hire Dotson, and 

·::he search for 'che reason -.;¥hy continues with an examination of 

~he customary hiring practice and a determination of whether 

Flynn's failure to hire Dotson represented a departure from that 

practice. If sof motivation may be suggested in the manner and 

the reasons fered for Dotson°s rejectiono 

-

' ' . . d) 1 • " • com:~nue 

previously worked at the mine and that a coal mine operator has the right to 

hire whomever he wants. There is a caveat, however -- hiring must be done 

according to law and cannot be denied because of protected activity. 

The right to hire or not to hire is not an absolute right, and the 

Act makes very clear that it is not only miners but also applicants for 

employment who cannot be discriminated against because of protected activity. 

The fact that Dotson was seeking work as an applicant for employment rather 

than as a miner subject to rehire, does not alter the protections afforded him 

by Section lOS(c) or the fact that he cannot be denied employment solely on 

the basis of protected activity. 

654 
Evidence regarding hiring practices by a new contractoroperator was in conflict. Dotson, who spoke from the perspective 

of a miner who had worked on the mountain and for several 

different contractor-operators, believed that it was just common 

sense for a new operator to hire the previous crew. As_he 

pointed out, these are the people who know the mine best. 

Tr. I 145. Meeks' testimony supports by inference what Dotson 

believed4 He stated that when he decided to shut down his 

operation at Mine No. 50 he told Calhoun that "there's a real 

good bunch of men working here" and that Calhoun replied "I want 

to get them all back to working." Tr. I 198. Like Dotson, Meeks 

struck me as an honest and forthright individual, and I believe 

his account of this conversation. 

Donnie Meeks' testimony, also, supports Dotson's "common 

sense" theory of hiring. He stated that it would be advantageous 

to hire a roof bolting machine operator who was familiar with the 

roof conditions in the mine because such a person would be aware 

of the mine's particular roof ,problems. He believed this to be 

especially true of Mine No. 50, which had a roof fall problem. 

Tr I 243-244. 

Flynn emphasized that in his experience he had never known 

of a situation wherein a new operator took all previous workers. 

Tr. I 65-66. I do not doubt this to be a fact and, indeed, Flynn 

supported his statement with several examples of situations in 

which few pervious miners were hired. Tr. I 67-68. However, his 

testimony in this regard is not necessarily inconsistent with 

that of Dotson and Meeks. In the situations that he cited, Flynn 

did not explain why previous miners were or were not hired, and, 

obviously, there could be any number of reasons. Nor was 

Calhoun's testimony, necessarily, inconsistent with the essence 

of Dotson°s and the Meeks 0 c Calhoun explained that the new 

operator will check with the previous operator and will hire some 

the old employees but that he knew of no instance where 100 

percent of the old employees were hired. Tr. II 164. 

I do not understand Dotson and the Meeks' to have testified 

that when an operator goes out of business and another operator 

reopens the mine the new operator will hire all previous 

employees. Dotson himself could not think of such a situation. 

Tr. I 148. Rather, I understand them to have stated that it is 

common for most of the miners to be hired, as indeed happened at 

Mine No. 50, and I so find. Dotson's observation that the 

previous miners are the ones who know the mine best, Donnie 

Meek's correlating acknowledgement of roof control problems at 

Mine No. 50 and the advantages of hiring miners who know the 

roof, and Meek's statement to Calhoun that he had good men at the 

mine and Calhoun's response that he wanted to get all of them 

back to work, convince me that such was the practice. 

655 
That being the case, when a previous miner is not hired 

while virtually all his peers are, the motive for failing to hire 

the left-out miner must be explained. In other words, here, 

where Flynn's failure to hire Dotson represented a departure from 

the norm, the question is why? 

The Respondents offer a business justification -- that 

Dotson applied for a roof bolting job, that there were two roof 

bolter positions available, that the positions were filled when 

Dotson applied, and that when one of the hired roof bolters 

unexpectedly did not show up for work, Flynn, on the 

recommendation of Donnie Meeks, hired someone other than Dotson. 

I conclude that this justification is not established by the 

evidence and that it is pretextual. I have accepted Dotson's 

testimony that he called Flynn on August 14, and asked about a 

job and was told that Flynn would get back to him. I also accept 

his testimony that Flynn asked him what he could do and that 

Dotson told Flynn that he could do anything. Tr. I 128. (Flynn 

could not recall this telepnone conversation. Tr. II 62.) I 

also believe that when Dotson went to the mine on Friday, August 

16, he was asked about the jobs that he had held and that Dotson 

indicated that he had run a roof bolter. Tr. I 131. However, I 

do not believe that Dotson indicated to Flynn he was applying to 

work only as a roof bolter. 12 such a statement would have been 

self-limiting and, as Dotson explained, he needed work. Rather, 

it seems likely that Dotson indicated that he would work, also, 

as a roof bolter. In any event, I accept Donnie Meeks testimony 

that he spoke with Flynn the day his father went out of business 

and gave Flynn a list of names of the miners and a list of all 

jobs that the men could do. Tr. 236. Thus, when Dotson and 

Flynn met on August 16, I believe that Flynn already knew that 

Dotson was not limited to operating a roof bolting machine, but, 

as Donnie Meeks explained that Dotson could do ~~anything else 

<chat needed to be done. 00 

Flynn maintained that when Shipley, one of the roof bolters 

he had hired, failed to report for work he selected Lawson over 

Dotson on the bas of Donnie Meekijs recommendation that Lawson 

was the better roof bolter. Tr. II 60-61. However,! find the 

credibility of this assertion undermined by Flynn's failure to 

12 It is important to note that during the course of the testimony I 

was struck by Dotson's sincerity and lack of guile. While I found him to be 

unsophisticated and naive, I also found him to be truthful. 

656 
mentioned it to the MSHA investigator when he was asked why 

Dotson was not hired. It is afterall, the major reason why the 

Respondents now contend Dotson was refused employment. 

As the Secretary rightly points out, Flynn ultimately hired 

all of the previous crew except Dotson and Johnson. See Sec. 

Br. 26-27. There was a legitimate business reason for not hiring 

Johnson.. The record discloses none for refusing Dotson 

employment. 

Therefore, accepting the premise that something must have 

motivated Flynn to deny Dotson employment, and the proffered 

reasons for the refusal having been eliminated by the evidence 

and the reasonable inferences drawn therefrom, the search for 

motive must continue by analyzing other actions of Calhoun and 

Flynn relating to Dotson. When these are reviewed, I believe the 

conclusion is inescapable that in refusing to hire Dotson, Flynn 

was responding to Calhoun's directive and was motivated, as was 

Calhoun, by Dotsonfs protected.activity. 

In the first place, I conclude the evidence establishes that 

Calhoun was seeking to "blacklist" Dotson because of his safety 

complaints to Stockwell and his, subsequent, discrimination 

complaint" As I have found, Dotson engaged in protected 

activity, and I believe, despite Calhoun's denials, that Calhoun 

was fully aware of that activity. The picture of Calhoun that 

emerged at trial was of a person actively interested and involved 

in the daily affairs of TCC's contractors as those affairs 

related to production. Calhoun explained the interest TCC had in 

the development and production of its contractor's mines 

(Tro II 152-154} and this was especially true of Mine No. 50. 

See Tr. I 179-183; Tr. II 155-156 and 170" I think that is 

fair to conclude that a matter affected production, Calhoun 

It was Calhoun, afterall, who took the lead in resolving the 

strike at Mine No" 15, a resolution that allowed production to 

~esume. was Calhoun who told Flynn that he wanted Mine No. 50 

t:o be a lqig producer of coal. Tr. II 82. Certainly v MSHA 1 s 

~bl " inspection at Mine No. 15v coming as it did, on the heels 

of the strike, and resulting in the issuing of notices and orders 

at the mine and eventually in criminal charges against Stockwell, 

impacted production and must have been known almost immediately 

to Calhoun. Calhoun stated that it was "unusual" that he did not 

657 
know of the inspection until his deposition was taken in April 

1992. Tr. II 192. I find it more than unusual; I find it 

incredible. Tr. II 162. Quite simply, I believe that he knew 

about it, and knew soon after it happened. 13 

·I also find incredible Calhoun's assertion that he did not 

know about the discrimination complaint Calhoun filed against 

Stockwell until the MSHA investigator took his statement 

regarding the present discrimination complaint. Tr. II 163. 

Again, the closeness of Calhoun's relationship with the daily 

operations of TCC's contractor-operators makes it permissible to 

infer, in my view, that Calhoun was well aware of Dotson's 

complaint. 

Being aware of these activities, activities that potentially 

impinged upon the smooth operation of TCC's contractor, I 

conclude that Calhoun undertook to bar Dotson from employment on 

the mountain and that Flynn followed his lead. I believe that 

Calhoun's animosity toward Dotson because of his safety-related 

activities is shown by Calhoun's attempt to have Meeks "get rid 

of" Dotson and, by his offer, to arrange a meeting between Meeks 

and stockwell so that Stockwell could tell Meeks "what kind of a 

man ••. Dotson was. " Tr. I 193-194, 221. 

Calhoun, of course, stated that although he mentioned Dotson 

to Meeks it was in the context of a response to Meek's question 

concerning who had been on the picket line at Mine No. 15. I do 

not discount the fact that if in fact this conversation occurred 

in close proximity to the strike, the subject of the strike may 

have arisen in the course of the Meeks-Calhoun conversation. It 

is logical that Meeks would have been interested in the strike. 

However, Calhoun 1 s denial that he ever told Meeks to fire or to 

get rid of Dotson or told Meeks that Dotson was a troublemaker 

rings false when viewed in the context of what must have been 

calhounus animosity toward Dotson for his activities impinging 

upon production at Mine No. 15. Tr. II, 162, 166, 187-186. 

13 Although, I believe that Calhoun knew of the MSHA inspection on 

February 6, 1991, at Mine No. 15; I do not believe that there is sufficient 

evidence of record to conclude that he knew Dotson requested the inspection. 

Dotson admitted his suspicions in this regard were simply -- suspicions. 

Tr. I 111-113. Moreover, the Mine Act would prevent MSHA's inspectors from 

divulging the name of a person requesting an inspection, and I assume, unless 

proof to the contrary is offered, that MSHA complies with the law it 

administers. (There is, of course, nothing that would have prevented 

Stockwell from telling Calhoun about Dotson's safety complaints to Stockwell 

and Dotson's discrimination complaint against Stockwell.) Still, Calhoun's 

denial of any knowledge of the inspection until he was deposed in April 1992 

is patently incredible and, in my view, casts a long shadow over the 

credibility of the rest of his testimony. 

658 
Rather, I believe Meeks 1 version of what Calhoun said to 

him. As I have stated Meeks impressed me as an honest and 

forthright witness. At one time he impressed Calhoun too, for 

Calhoun testified that Meeks had a good reputation when he worked 

for TCC and that he had considered Meeks to be a reliable 

business partner for the corporation. Tr. II 173. Although, 

Meeks was, subsequently, involved in a legal dispute with TCC, at 

the time- the Calhoun-Meeks conversations occurred, they appear to 

have been on good business terms and were working closely 

together. 

Given the fact that I conclude the Meeks-Calhoun 

conversations occurred, essentially as Meeks reported them, and 

given the fact I also conclude that Calhoun was aware of Dotson's 

safety complaints and his discrimination complaint against 

Stockwell; there is no other logical explanation offered or 

suggested by the record for Calhoun's desire to have Meeks "get 

rid of" Dotson than Dotson's protected activity. 

Further, I agree with counsel for the Secretary that 

Calhoun's urging that Meeks get rid of Dotson for engaging in 

protected activity supports an inference that he, likewise 

instructed Flynn not to hire Dotson. Sec. Br. 32. As the 

evidence establishes, Flynn was subject to Calhoun's influence 

and monitoring; and as I have found, his excuses for failing to 

hire Flynn are otherwise pretextual. 

CONCLUSION 

Accordingly, I conclude that Dotson has established that he 

engaged in activity protected under the Act when he complained to 

Stockwel regarding safety conditions at Mine No. 15 and when he 

filed a discrimination complaint against Stockwell. Further, I 

conclude that Calhoun knew of these activities and was motivated 

by them to have Dotson ueblacklisted" -- i.e. , to have him removed 

from his job by Meeks and, failing that, to have him denied 

employment by Flynn. I also conclude that Flynn and through 

Flynn, Lad in denying Dotson employmentv were acting at 

Calhoun°s behest and were motivated by the same protected 

activities. Final p I conclude that the proffered reasons for 

Flynn 1 s failure to hire Dotson are pretextual and that the 

Respondents have not established that they were in no way 

motivated by Dotsonus protected activity or that they were only 

motivated by unprotected activity on Dotson 1 s part. 

Therefore, I hold that in failing to hire Dotson, the 

Respondent 1 s violated Section 105(c) (1) of the Act. 

659 
ORDER 

Counsels for the parties ARE ORDERED to confer with each 

other during the next fifteen (15) days with respect to the 

remedies due Dotson, and they are encouraged to reach a mutually 

agreeable resolution of the matter. Any stipulations or 

agreements in this regard shall be filed with me within the next 

thirty (JO) days. In discussing any back pay due Dotson, 

counsels are requested to keep in mind Dotson's testimony that 

subsequent to being denied employment at Mine No. 50, he was 

offered a job at Mine No. 30, and he declined to accept the 

offer. Tr I 134-137. 

In the complaint of discrimination the Secretary requests 9

i[a]n order assessing an appropriate civil penalty against 

Respondent ... not to exceed $5o,oooo.oon. This proposal, void 

as it is of any reference to the statutory civil penalty 

criteria, is equivalent to no proposal. Accordingly, Counsel for 

the Secretary IS ORDERED within.ten (10) days to submit a penalty 

proposal supported by the Secretary's contentions with respect to 

the relevant statutory criteria set forth in Section 110(a) of 

the Act, 30 u.s.c. § 820(a), and counsel for the parties are 

requested to confer regarding this aspect of the case during 

their discussions with respect to the remedies due Dotson. 

In the event counsels cannot agree regarding the remedies 

and proposed civil penalty, they are to notify me no later than 

the end of the referenced fifteen (15) day period. Counsels ARE 

FURTHER ORDERED at that time to state their specific areas of 

disagreement and if they believe that a further hearing may be 

required on the remedial aspects of this matter, to state that as 

well. Counsels me orally, but the notification must 

be confirmed vJrit. same day" 

•~ jur this matter until the remedial 

aspects this case are resolved and finalized. Until such 

determinations are made and pending a finalized dispositive 

order r my dec is t.his matter is not final. In addition 7 

abeyance 

the Respondents held 

a final dispositive order. 

j)~ t~d £ fJ~~t?vtL_ David F. Barbour 

Administrative law Judge 

(703) 756-5232 

660 
Distribution: 

Gretchen M. Lucken, Esq., Office of the Solicitor, u.s. 

Department of Labor, 4015 Wilson Boulevard, Suite 516, 

Arlington, VA 22203 (Certified Mail) 

Michael w. Boehm, Esq., Spears, Moore, Rebman and Williams, 801 

Pine Street, P.O. Box 1749, 8th Floor, Blue Cross Building, 

Chattanooga, TN 37401 (Certified Mail) 

Thomas s. Kale, Esq., Spears, Moore, Rebman and Williams, 801 

Pine Street, P.O. Box 1749, 8th Floor, Blue Cross Building, 

Chattanooga, TN 37401 (Certified Mail) 

fepy 

661 
FEDERAL IIIRB SAP'B'rY Aim HEAT.'I'H REVIEW COBBISSIOH 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 5 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

S & H MINING, INCORPORATED, 

Respondent 

: 

. . 

. 

0 

Docket No. SE 92-393 

A.C. No. 40-02045-03574 

: Docket No. SE 92-394 

: A.C. No. 40-02045-03575 . . 

. . 

. . 

. . . 

Docket No. SE 92-395 

A.C. No. 40-02045-03578 

: S & H Mine No. 2 . . 

DECISION 

Appearances: Darren L. Courtney, Esquire, Office of the 

Solicitor, u.s. Department of Labor, 

Nashville, Tennessee, for the Petitioner; 

Imogene A. King, Esquire, Frantz, McConnell 

and Seymour, Knoxville, Tennessee, for 

Respondent 

Before; Judge Melick 

These consolidated proceedings are before me upon the 

petitions for civil penalty filed by the Secretary of Labor 

pursuant to Section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. 801, et seg., the "Act," 

charging S & H Mining, Incorporated (S & H)u with violations 

of mandatory standards. The general issue before me is 

whether s & H violated the cited standards and, if so, what 

the appropriate civil penalty to be assessed. 

Docket Noo SE 92-393 

During hearings the parties moved to settle Citation 

Noso 3383498, 3383499 and 3382595 proposing a reduction 

in penalties from $471 to $250. I have considered the 

representations and documentation submitted in this case, 

including supplemental information filed post hearing, and 

I conclude that the proffered settlement is appropriate 

under the criteria set forth in Section 110(i) of the Act. 

An order directing payment of these penalties will be 

incorporated in the order accompanying this decision. 

662 
.Citation No. 3382581 alleges a "significant and 

substantial" violation of the mandatory standard at 30 C.F.R. 

§ 75.400 and charges as follows: 

Wet loose coal and coal dust black in color 

wa$ allowed to accumulate under the suspended 

conveyor beltline starting at the No. 4 belt 

tailpiece and continuing to the belt head drive 

for a distance of approximately 800 feet in 

depths from 1 inch to 6 inches deep. 

The cited standard, 30 C.F.R. § 75.400, provides that 

"[c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, 

shall be cleaned up and not be permitted to accumulate in 

active workings, or on electric equipment therein." ~ 'v•• 

M. J. Hughett, an inspector for the Mine Safety and 

Health Administration (MSHA), testified that he discovered 

during the course of his inspection of the S & H No. 7 Mine 

on April 14, 1992, coal and float coal dust 1 inch to 6 inches 

deep over the entire 800 foot length of the cited beltline. 

He testified that he had traveled the entire length of the 

beltline at that time and noted that some of the coal was wet 

and in areas where it was not wet it had been rock-dusted. 

However, according to Hughett, even where there was rock dust 

there was some dry coal dust on top of that rock dust in areas 

near the face. No one was observed cleaning up the material 

at the time of his inspection. Hughett also noted that a 

number of permissibility violations existed on electrical 

equipment then operating in the mine, including a 506 Bridge 

Carrier in the immediate vicinity of the cited coal dust. 

Cecil Broadus, lead man on the belt at the time the 

citation was issued did not observe the inspection party 

travel the entire length of the beltline. He maintains 

that when the inspector observed the coal dust, he stated 

uur guess the whole belt line is like this. 81 Broadus conceded, 

however 9 that coal dust indeed lay along the belt line some 

1/2 inch to 3/4 inch thick along with egg-size lumps of coalg 

Broadus maintains that at the time of the citation he already 

had a man shoveling coal about 150 feet from where the inspector 

was standing. 

Within this framework of evidence, including the 

undisputed evidence that at least 1/2 to 3/4 inches of coal 

dust and egg-sized lumps of coal lay along the beltline, 

I am satisfied that a violation of the cited standard has been 

proven as charged. The fact that some of the coal dust lay on 

top of rock dust that admittedly had been laid down the week 

663 
before also indicates that the coal dust may have been lying 

in the area for a significant period of time. I also note, 

however, the testimony of Mr. Broadus that at the time the 

inspector was issuing the citation he indeed already had 

assigned a cleanup man to work on the cited accumulation. 

Under the circumstances I find operator negligence to be only 

moderate. 

In-light of the existence, however, of impermissible 

electrical equipment operating in close proximity to the coal 

dust and loose coal, I find that the violation was clearly of 

high gravity and "significant and substantial." See Mathies 

Coal Company, 6 FMSHRC 1 (1984). It was indeed reasonably 

likely under the circumstances for reasonably serious injuries 

to occur to the men then working underground at the S & H Mine. 

Under the circumstances I find that the proposed penalty of 

$157 is appropriate. 

Docket No. SE 92-394 

At hearing the parties moved for settlement of Citation 

Nos. 3382598 and 3382651 proposing a reduction in penalties 

from $382 to $100. I have considered the representations and 

documentation submitted in the case, including supplemental 

material submitted post hearing, and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section 110{i) of the Act. An order directing payment 

of the penalty will be incorporated in the order accompanying 

this decision. At hearing the Secretary also moved to vacate 

Citation No. 3382600 for lack of evidence. The motion was 

granted ~nd accordingly Citation No. 3382600 is vacated. 

Citation No" 3382647 alleges a 91 significant and substantiaPu 

violation of t.he standard at 30 C.F.R. § 75.203(b) and charges 

t.hat. a sighiline [sic] or others [sic] method of directional 

control shall be used to maintain the projected direction of the 

mining in the No. 1 and 5 entries on the 001 working section." 

The cited standard provides that Gla sightline or other 

method of directional control shall be used to maintain the 

projected direction of mining in entriesv rooms, cross-cuts and 

pillar splits. "~ 

According to MSHA Inspector Hughett this citation was 

issued because the entries were not completely straight and 

that no spads or other method of directional control were 

found in the Nos. 1 and 5 entries. Hughett acknowledged 

finding spads in the Nos. 2 1 3 and 4 entries and finding no 

violations of the roof control plan. 

According to Paul Smith, an owner and president of S & H, 

directional control in the Nos. 2, 3 and 4 entries is obtained 

664 
by establishing a line with a transit and then marking that 

with spads in the roof. In the Nos. 1 and 5 entries 50 foot 

measurements are taken from the spads in the Nos. 2 and 4 entries 

and marked with either spray paint or chalk. According to Smith, 

the miner operator then lines up these marks to the face where an 

additional mark is made to insure that the mining is straight. 

Under this method, once the cut is made the chalk or paint on 

the face is obliterated~ In addition, the marks on the roof 

may later be obscured by rock dusting. According to Smith, when 

the next cut is being prepared a new measurement and mark on the 

face is again made. Lonny Cardon, an employee of s & H, 

testified that he in fact measured and marked the sightlines for 

the Nos. 1 and 5 entries which were the subject of the instant 

citation. 

Within this framework of evidence I conclude that no 

violation of the cited standard has occurredo The testimony 

of Smith and Cardon regarding the directional controls used in 

the Nos. 1 and 5 entries is 'IJ:lldisputed. While this method of 

directional control may have resulted in some lack of precision 

and some irregularities in the entries there was admittedly no 

violation of the roof control plan and no apparent hazard. 

In reaching this conclusion I have not disregarded the 

testimony of Inspector Hughett that he was unable to find 

chalk marks on the mine roof or at the face of the Nos. l and 

5 entries. However this lack of observable evidence does not 

in itself lead to the conclusion that no directional control 

was being used. The credible evidence shows that such control 

is established when the continuous miner begins cutting coal 

and that the sightlines at the face will be obliterated by 

the coal. Under the circumstances I do not find that 

has sustained burden proving t.he violation 

and Citation Noo 3382647 must accordingly 

Citation Noo 3382649 charges a ovsignificant and substantial" 

violation of the standard at 30 C.F.R. § 75.1704 and alleges that 01 the No. 4 return air escapeway was not maintained a manner 

permit miners from the mine water 

acculmulated [sic] a [ ] of 10 inches to 14 inches 

11 crosscut of the No. 4 entry of first lefto gu 

The cited standard provides f partff that 9wat least 

two separate and distinct travelable passageways which are 

maintained to insure passage at all times of any personv 

including disabled persons 1 and which are to be designated as 

escapeways, at least one of which is ventilated with intake air, 

shall be provided from each working section continuous to the 

surface escape drift opening, or continuous to the escape shaft 

or slope facilities to the surface, as appropriate, and shall be 

maintained in safe condition and properly marked." 

665 
The testimony of Inspector Hughett regarding this 

citation is not in dispute. According to Hughett, during 

the course of his inspection on April 16, 1992, in the 

No. 4 return air escapeway at the No. 11 crosscut of the 

No. 4 entry off first left, he and Mine Superintendent 

Charles White entered a section where the escapeway waa 

obstructed by 10 to 14 inches of water. White slipped and 

fell in the water as he walked through it. Hughett opined 

that if·someone was injured he would therefore have difficulty 

passing through this area. It was slippery and, according to 

Hughett, dangerous and would slow down the escape. 

Charles White admitted that he had slipped in the water 

hole. He acknowledged that the floor sloped down into the 

hole and he had to bend to pass through it. He further admitted 

that it was "slick" under the water. He explained that the 

company tried to keep this area pumped out but on this occasion 

the pump had not been primed. 

Within this framework of essentially undisputed evidence 

it is clear that the violation was committed as charged. I 

do not, however, find that the violation was "significant and 

substantial" or of significant gravity. The Secretary has 

failed to sustain his burden of proof in this regard. See 

Mathies Coal company, supra. In particular, the Secretary has 

failed to sustain his burden of proving the third and fourth 

elements of the Mathies formula, i.e., the Secretary has failed 

to prove "a reasonable likelihood that the hazard contributed 

to will result in an injury and "a reasonable likelihood that 

the injury in question would be of a reasonably serious nature. 11 

Considering the absence of evidence regarding significant 

negligence and, I find that a civil penalty of $180 is 

appropriateo 

Citation Noo 3382650 also charges a violation of the 

standard at 30 C.F.R. § 75.400 and alleges that "loose coal 

was allowed to accumulate in depth of 1 to 12 inches in 

the Nos. 1, 2 and 3 entries on the 001 section for a distance 

of 70 feeto 00 

Inspector Hughett testified that he observed these 

conditions on the 14th and 15th of April but did not then 

issue a citation because the area was inaccessible while work 

was being performed on the continuous minero However, when 

he observed on April 21 that these accumulations had still 

not been cleaned up after the miner had been repaired, he 

cited the condition. He observed that the dust was dry 

and only partially rock-dusted. According to Hughett the 

energized power cables in the vicinity could cause an ignition 

so the violation was therefore "significant and substantial." 

In regard to this finding the following colloquy ensued: 

666 
Q. [By Government Counsel] What is the danger 

that's associated with having that accumulated 

coal dust? 

A. catching fire and causing --- you know, 

it might cause combustible smoke and stuff 

like that there. 

Q. Please be sure to articulate your sentences. 

What kind of --- is it reasonably likely that 

an injury would occur if there were a fire or 

explosion from this combustible material? 

A. Yeah. 

Q. And what kind of injuries could there be? 

A. Could cause breathing or, you know, smoke 

accumulation this fardown where you couldn't 

get out or anything of that nature. 

Q. Could the injuries be fatal? 

A. They could, yes. 

(Tr. 104-105). 

This testimony is simply too ambiguous to enable any 

finding that the Secretary has met her burden of proving that 

the violation herein was "significant and substantial." In 

addition 0 the fact that the inspector allowed the cited condition 

to exist for seven days before issuing a citation contradicts 

b.is finding that the violation was 01 significant and substantial. uu 

Based on evaluation of the criteria under Section llO(i) of the 

Act I find that a civil penalty of $180 is appropriate. 

Docket No. SE 92-395 

At hearing1 Petitioner filed a motion to approve a 

settlement agreement as to the one citation at issue in this 

docket. Respondent has agreed to pay the proposed penalty of 

$50 in full. I have considered the representations and documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section llO(i) of the Act. 

667 
ORDER 

Docket No. SE 92-393 

S & H Mining, Inc. is hereby directed to pay civil penalties 

of $100, $100, $157, and $50 for Citation Nos. 3383498, 3383499, 

3382581 and 3382595, respectively. 

Docket No. SE 92-394 

Citation Nos. 3382600 and 3382647 are hereby vacated. s & H 

Mining co., Inc. is hereby directed to pay civil penalties of $50 

each for Citation Nos. 3382598, 3382259, and 3382651. Citation 

Noso 3382649 and 3382650 are affirmed but without "significant 

and substantial 11 findings and S & H Mining, Inc. is directed to 

pay civil penalties of $180 for each of those violations. 

Docket No. SE 92-395 

s & H Mining Company is directed to pay civil penalties 

of $50 for the violation charged in Citation No. 3382641. 

Distribution~ 

' '1/ t/t~, Gary lick ·~f Admin'strative Law Judge 

703-7 6-6261 

Darren Lo Courtney, Esq., Office of the Solicitor, 

UoSo Department of Laboru 2002 Richard Jones Road, 

Suite B-201 Nashville TN 37215 (Certified Mail) 

Imogene Ao King, Esqou Frantz, McConnell and Seymour 0 

P"O" Box 39 9 Knoxvilleu TN 37901 (Certified Mail) 

668 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 5 1993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ONEIDA COAL COMPANY, INC., 

Respondent 

. . 

. . 

: 

Docket No. WEVA 92-986 

A.C. No. 46-05243-03624 

~ Oneida No. 1 Mine 

0 

0 

DECISION 

Appearances: Glenn M. Loos~·Esquire, Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Before: 

w. Henry Lawrence, Esquire, Steptoe and Johnson, 

Charleston, West Virginia, for Respondent 

Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). At hearings, Petitioner 

filed a motion to approve settlement agreement and to dismiss 

the caseo Respondent has agreed to pay the proposed penalty 

$10,020 fullo I have considered the representations and 

documentation submitted this case, including the addendum 

to the settlement agreement attached hereto as an appendixu and 

I conclude that the proffered settlement is appropriate under 

the criteria set forth in Section 110(i) of the Act. 

WHEREFORE, the motion for approval of 

GRANTEDu and is ORDERED that Respondent 

~ \ 

$10u020 within 30 days of this 7\rd o 

I 

settlement is 

pay 6.)1 penalty of 

\i 

1 

j_ary Me ic 

~dminis rative 

703-756 261 

669 
Distribution: 

Glenn M. Loos, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, ~ 22203 

(Certified Mail) 

w. Henry Lawrence, IV., Esq., Steptoe and Johnson, Sixth Floor, 

Union National center East, P.O. Box 2190, Clarksburq, wv 

26302-2190 (Certified Mail) 

/lh 

670 
APPENDIX 'IO DECISION 

UHI~ED STA~ES OF AMERICA 

FEDERAL HIHE SAFETY AHD HEALTH REVIEW CORPORA~IOH 

LYHH HARTIN, Secretary of Labor, ) CIVIL PEHALYY PROCEEDIHG 

United·states Departaent of Labor, , 

Yo 

ORE IDA COAL CO., 

) 

Petitioner, ) Docket Ho. WEVA 92-986 

) 

) AsBessaent Control 

» io. 46-05243-03624 

» 

IHC., ) Hinee Oneida Mine So. 1 

) 

) SOL Mo. 92-39276 

.Respondent .. ) 

-·J 

.. ' 

ADDEHDUM 'J.'O 

JOINT MOTIOH FOR 

APPROVAL OF SETTLEMEHT ::-;, ~ "=""' ""'t"t' f"Ti~o ..... ~ 

fhis day caae the parties, by counsel, and repres~!~~ to~e ~ M """ N Court that they have reached an agreeaent as to the i~ea in disp~ . ~~~ ~ < 

c;,...,::;r- - herein whereby the Secretary agrees to aodify its fin~O:: of f"\) f'T1 c:::>:t:'~ Qo 

:z:::I"Tl 0 

megligenc® f~om Doderate~ ~o mnone~ on ~itation ~umbe~3309~ and to 

:::.1:: U'a 

Citations Huaber 3110789 and 3110790 and whereby Oneida Coal Coapanyu 

Xnco ~grees tc pay the 9enalty assessaent. Wherefore~ the parties 

671 

w. Henry Lawrence IV 

Counsel for Respondent 

Oneida Coal., Co., Xnc. 

Glen M. Loos, Esquire 

Departaent of Labor 

4015 Wilson Boulevara, Roo• 516 

Arlington, Virginia 22203 

Counsel for Petitioner 

Secretary of Labor 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 6 1993 

ERNIE L. SPAULDING, DISCRIMINATION PROCEEDING 

Complainant 

Docket No. WEVA 92-971-D 

vq 

HOPE CD 92-07 

MADISON BRANCH MANAGEMENT, 

INC. u 

Respondent 

DECISION 

Appearances: Thomas L. Woolwine, Personnel Management 

Consultants, Princeton, West Virginia, for 

Respondent; 

Ernie Spaulding, Pro Se. 

Before: Judge Maurer 

This case is before me based on a Complaint filed by 

Ernie Spaulding, alleging that he was discriminated against by 

Madison Branch Management, Inc., (Madison), in violation of 

section 105(c) of the Federal Mine Safety and Health Act of 1977, 

(the "Act"), 30 u.s.c. § 815(c). Pursuant to notice, the case 

was heard in Bluefield, West Virginia, on December 29, 1992. At 

the hearing, Mr. Ernie L. Spaulding appeared pro se and testified 

in his own behalf. David lins also testified on behalf of 

complainant. A'l: 'che conclusion of the complainant 1 s case ff 

respondent made a motion for summary decision, which I took under 

advisement at the time in order to hear their evidence. Messrs. 

Sturgill and Logan subsequently testified on behalf of respondent 

and were cross-examined Mr. Spaulding. Finally, Mr. Spaulding 

made a closing statement on the record. Following that, I 

granted the respondent's motion for a summary decision. 

Complainant, who has never worked for Madison, alleges 

basically that he was not hired to be a bulldozer operator at 

Madison in this instance because even though he professes to be 

"pretty good at it," he believes he was not given a tair tryout 

on the equipment. Furthermore, he believes that the reason for 

this "discrimination 11 was because of a previously poor work 

record with other employers when he was younger. He states he 

had a lot of "AWOLs" in those days, and thinks Madison might be 

aware of this along with the fact that he was a "union radical" 

in his previous coal mine employment. Madison's defense is 

essentially that they tried him out on the equipment and he 

performed poorly on the practical test. 

672 
As I explained to the parties at the beginning of this 

hearing (Tr. 15-16}, in order to establish a case of 

discrimination under section 105(c) of the Act, the complainant 

has the burden of proving 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 prima 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 

activity alone. Pasula, supra; Robinette, supra. See also 

Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639 1 642 (4th Cir. 

1987); Donovan v. Stafford Construction 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 9 s Pasula-Robinette 

test). Cf. NLRB v. Transportation Managemer.t Corp., 462 u.s. 

393, 397-413 (1983) (approving nearly identical test under 

National Labor Relations Act). 

Complainant herein failed to demonstrate that he had engaged 

in any prior activity that would be considered 01 protected 

acti vi tyui under the Mine Act. Since this is a necessary element 

of any discrimination caser his case has fa of proof and must 

dismissed. 

ORDER 

It is ORDERED that this case be DISMISSED. 

J Roy 

~4JV\~ ~ ~ ~aurer I' 

Admi jslrative Law Judge 

Distribution: 

Mr. Ernie Spaulding, 201 Meadow Road, Madison, WV 25130 

Mr. Thomas L. Woolwine, Personnel Management Consultants, 

P. o. Box 1389, Princeton, WV 24740-1389 

dcp 

673 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

"! ]' n."' f:~,:{, APR I ~:1'~ 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

DELAWARE VALLEY LANDSCAPE 

INCORPORATED, 

Respondent 

: Docket No. PENN 92-523-M 

A.C. No. 36-03161-05507 . 

0 

Docket No. PENN 92-524-M 

A.C. No. 36-03161-05506 

Delaware Valley Landscape 

Stone Inc. 

DECISIONS 

Appearances: Maureen A. Russo, Esq., Office of the Solicitor, 

U.So Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Before: 

Jay H. Harsch, Esq., Eastburn and Gray, 

Doylestown, Pennsylvania, for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

section llO(a) of the Federal Mine Safety and Health Act of 

1977" 30 u.s.c. § B20(a). Both cases concern alleged violations 

of mandatory safety standard 30 c.F.R. § 56.1413l(a), which 

requires seat belts to be provided and worn in haulage trucks. 

Docket No. PENN 92-524-Mu concerns a section 104 (d) (1) ~•s&S 11 

tation No. 3866333u issued on December 10, 199lv by MSHA 

Inspector Elwood Frederick for the alleged failure of a haulage 

truck operator to wear a provided seat belt while hauling 

material at the respondent 1 s mine site. Docket No. 

PENN 92-523-M, concerns a section 104(d) (1) "S&S" Order No. 

3866334, issued by Inspector Frederick approximately one hour 

after the issuance of the citation on December 10, 1991. The 

inspector cited another haulage truck operator for not wearing 

the seat belt. provided in his haulage truck while hauling 

material at the site. 

The respondent filed timely notices of contests and answers 

denying the alleged violations and challenging the reasonableness 

of the proposed penalty assessments ($600 in Docket No. 

PENN 92-524-M and $500 in Docket No. PENN 92-523-M). The cases 

were consolidated for hearing in Allentown, Pennsylvania, on 

674 
March 11, 1993, and the parties appeared and participated fully 

therein, and they were given an opportunity to file posthearing 

briefs. 

Issues 

The issues presented are (1) whether the cited conditions or 

practices constitute violations of the cited standards; (2) 

whether the alleged violations were significant and substantial 

(S&S); (3) whether the alleged violations were the result of the 

respondent's unwarrantable failure to comply with the cited 

standards; and (4) the appropriate civil penalties to be assessed 

for the violations taking into account the civil penalty 

assessment criteria found in section 110(i) of the Act. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301, et seq. __ 

2. Sections 104(d) (1) and 110(1) of the Act. 

3. 30 C.F.R. § 56.14131(a). 

4. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

Stipulations 

The parties stipulated to the following (Exhibit ALJ-1): 

lo The respondent is a duly authorized Pennsylvania 

corporation and it subject to the jurisdiction of the 

Acto 

2o The pres1a1ng Administrative Law Judge has jurisdiction 

in these proceedings. 

The subject order and citation were properly served by a 

duly authorized representative of the Secretary of Labor 

upon an agent of the respondent at the datesu times, and 

places stated therein, and may be admitted into evidence for 

the purpose of establishing their issuance, and not for the 

truthfulness or relevancy of any statements asserted 

therein. 

4. The assessment of civil penalties in these proceedings 

will not affect the respondent's ability to continue in 

business. 

5. The appropriateness of the penalties, if any, to the 

size of the business should be based on the fact that: 

675 
a. The respondent's company's annual 

production tonnage is 16,465 (small company); 

b. The respondent's Delaware Valley 

Landscape Stone, Inc., Delaware Plant has an 

annual production of 5,846 tons (small 

plant). 

6. The respondent was assessed a total of eight (8) 

violations during the 24 months preceding the issuance of 

the citation and order involved in these proceedings. 

(Exhibit G-K). 

7. The parties stipulate to the authenticity of their 

exhibits but not to their relevance nor the truth of the 

matters asserted therein. 

Discussion 

In support of the alleged violations, the petitioner 

presented the testimony of Inspector Frederick. In its defense, 

the respondent presented the testimony of its plant manager and 

foreman, Clarence Pursell. According to the testimony, 

Mr. Pursell accompanied the inspector during his inspection on 

December 10, 1991, and the contested citation and order were 

served on Mr. Pursell. At the close of all of the testimony, the 

respondent's counsel presented closing arguments on the record 

(Tr. 138-142). Petitioner's counsel waived closing argument and 

opted to file a posthearing brief (Tr. 144). However, prior to 

the submission of any briefs the petitioner filed a motion 

pursuant to Commission Rule 30u 29 C.F.R. § 2700.30u seeking approval of a proposed settlement agreed to by the parties 0 the 

terms of which include an agreement by the respondent to pay 

civil penalty assessments of $128u in settlement of each of the 

violations. 

In support of the proposed settlementu the petitioner states 

that on the basis of the evidence presented during the hearing on 

March llu 1993u the parties are in agreement that the 

respondent's negligence does not rise to the level of aggravated 

conduct required to support the inspectoris unwarrantable failure 

findings. Under the circumstancesv the parties are in agreement 

that the citation and order should be amended to section 104(a) 

citations 9 and that the remaining negligence and gravity findings 

made by the inspector will remain as issued. In addition, the 

parties state that the statutory civil penalty criteria found in 

section llO(i) of the Act have been considered, and they confirm 

that the violations were timely abated in good faith and that the 

respondent's history of eight prior citations does not include 

any seat belt violations. 

676 
Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the proposed settlement 

of these cases, I conclude and find that the proposed settlement 

dispositions are reasonable and in the public interest. 

Accordingly, pursuant to 29 C.F.R. § 2700.30, the settlements 

ARE APPROVED. 

ORDER 

IT IS ORDERED THAT: 

1. Docket No. PENN 92-523. The initial Section 

104(d) (1) "S&S" Order No. 3866334, December 10, 1991, 

citing a violation of 30 C.F.Ro § 56.14131(a), IS 

MODIFIED to a section 104(a) "S&S" citation, and the 

violation IS AFFIRMED. The respondent shall pay a 

civil penalty assessment>of $128, to MSHA within thirty 

(30) days of the date of this decision and order in 

satisfaction of the violation, and upon receipt of 

payment, this matter is dismissed. 

2o Docket No. PENN 92-524. The initial Section 

104{d) (1) "S&S" Citation No. 3866333, December 10, 

1991, citing a violation of 30 C.F.R. § 56.14131(a), 

IS MODIFIED to a section 104(a) "S&S" citation, and the 

violation IS AFFIRMED. The respondent shall pay a 

civil penalty assessment of $128, to MSHA within thirty 

(30) days of the date of this decision and order in 

satisfaction of the violation, and upon receipt of 

paymentu this matter is dismissed" 

Distribution~ 

Maureen A. Russov Esq. Office of the Solicitor 1 u.s. Department 

of Laboru Room 14480-Gateway Buildingu 3535 Market Streetu 

Philadelphia, PA 19104 (Certified Mail) 

Jay H. Karsch, Esq., Eastburn and Gray, 60 East Court street, 

P.O. Box 1389, Doylestown, PA 18901-1389 (Certified Mail) 

jml 

677 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DOUBLE "B" MINING, INC., 

Respondent 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 92-335 

A. C. No. 40-02666-03580 

Docket No. SE 92-336 

A. C. No. 40-02666-03581 

Mine No. 32 

DECISION APPROVING SETTLEMENT 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

u. S. Department of Labor, Nashville, Tennessee, 

for the Secretaryi 

Ladue Bouldin, President, Double "B" Mining 

company, Inc., Tracy city, Tennessee, for 

Respondent. 

Before: Judge Maurer 

These cases are before me upon a petition for assessment of 

penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act o At the hearing, the parties 

jointly moved to these cases based primarily on the 

financial plight of the respondent on the following basis: 

PROPOSED PROPOSED 

CITATION NO a ASSESSMENT SETTLEMENT 

3396049 252 $ 126 

3396050 252 126 

3396051 252 252 

3396052 147 70 

3369053 220 110 

3396054 220 110 

3396055 136 136 

3396056 220 110 

3396057 136 68 

3396060 136 68 

3396086 50 50 

3396087 50 50 

3396088 136 50 

3396089 94 50 

678 
TOTAL 

3396090 

3396091 

3396092 

3396093 

3396094 

3396095 

3396097 

3396098 

3396099 

3396100 

3530612 

3530262 

3530263 

3530264 

3530265 

3530266 

3530267 

3530268 

136 

220 

220 

94 

94 

136 

136 

136 

136 

220 

220 

220 

220 

220 

136 

220 

136 

220 

5421 

68 

110 

110 

50 

50 

68 

68 

68 

68 

110 

110 

110 

220 

220 

68 

220 

68 

220 

3382 

I have considered the representations and documentation submitted 

in these cases, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in section 110(i) of the 

Act. 

WHEREFORE, the joint motion for approval of settlement 

GRANTED, and it is ORDERED that respondent pay a total penalty 

$3382 within 30 days of this ordero 

Law Judge 

Distribution~ 

Thomas Ao Grooms, Esq.u Office of the Solicitor, U. S. Department 

of Labor 9 2002 Richard Jones Roadu Suite B-201 0 Nashville, TN 

37215, (Certified Mail) 

Mr. LaDue Bouldin, President, Double 11B" Mining, Inc.u 

P. o. Box 280, Tracy City, TN 37387 (Certified Mail) 

dcp 

6 79 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

CYPRUS TONOPAH MINING 

CORPORATION, 

APR 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

REVIEW ADMINISTRATION 

(MSHA) I 

Respondent 

SECRETARY OF LABOR 1 

MINE SAFETY AND HEALTH 

REVIEW ADMINISTRATION 

(MSHA) 1 

Petitioner, 

v. 

CYPRUS TONOPAH MINING CORP. :~ 

91993 

CONTEST PROCEEDINGS 

Docket No. WEST 90-363-RM 

Citation No. 3645243; 9/5/90 

Docket No. WEST 90-364-RM 

Citation No. 3459560; 9/5/90 

Cyprus Tonopah 

Min~ I.D. 26-02069 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-202-M 

AO No. 26-02069-05507 

DECISION AFTER REMAND 

lBeforeg 

and Hea Revie~t! Commission u in its 

March &4r 1993 9 determined that the violation 

contained ·tation No. 3459560 did not as I had previously 

heldu result from Respondentus unwarrantable failure to comply 

the pertinent safety standard and remanded the matter to me 

reca penalty based on this change. 

The penalty assessed in my original decision issued on September 23, 1991, was $1,000.00. The basis for the Commission's 

determination that the violation was not the result of Respondent's unwarrantable failure is essentially set forth on page 11 

of its decision. 

We also find significant the fact that 

on the day of Inspector Ellis's inspection, 

Cyprus was in the process of constructing a 

680 
larger berm at the base of the west wall. 

The Commission has previously recognized that 

an operator's pre-citation efforts in mitigating a violative condition are relevant in 

reviewing an unwarrantable failure determination. , ~~Utah Power and Light co., 

11 FMSHRC 1926, 1933 (October 1989). 

Because Cyprus's conduct apparently 

resulted from a good faith, albeit mistaken, 

belief that its actions were in compliance 

with Section 56.3200, we conclude that 

substantial evidence does not support the 

Judge's finding that Cyprus's violation of 

56.3200 was caused by its unwarrantable 

failure. generally Utah Power and Light 

, 12 FMSHRC 965, 972 (May 1990). 

It is found that Respondent was negligent, however, in 

permitting work and travel in the area where hazardous ground 

conditions existed until completion of the "corrective work" 

mentioned in the safety standard, i.e., the berm mentioned by the 

Commission was completed. See my Decision, fn. 22, 13 FMSHRC 

1547. 

Nevertheless, the elimination of the "unwarrantable failure" 

aspect of the violation stands in considerable mitigation of the 

culpability to be attributed and after consideration of this 

change and the other penalty assessment criteria previously ascertainedu a penalty of $500 is found appropriate and here 

assessed. 

Distribution 

;}.:04&? 0~/Ail /! r 

Michael A. Lasheru Jr. 

Administrative Law Judge 

R. Henry Moore, Esq. 0 BUCHANAN INGERSOLL! 600 Grant Street, 58th 

Floor, Pittsburgh, PA 15219 (Certified Mail) 

Colleen A. Geraghty, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

ek 

681 
FEDERAL KDiE SAFETY ABD REAI.'I'H REVIEW COJUIISSIOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 91993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: Docket No. WEVA 92-746 

A.C. No. 46-05801-03618 

v. 

No. 21 Mine 

TOP KAT MINING; INCou 

W-P COAL COMPANY, 

Respondents 

BEAR RUN COAL 0 INC., 

Successor-In-Interest 

l~ppearances ~ 

Befors; 

DECISION 

Gretchen Lucken, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, for 

Petitioner; 

Kurt A. Miller, Esq., Thorp, Reed and Armstrong, 

Pittsburgh, Pennsylvania, for Respondent W-P Coal 

Company; 

No appearance on behalf of Top Kat Mining, Inc.~ or Bear Run Coal, Inc. 

case before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, 

at seq. y the uuActv', charging Top Kat Mining~ Inc. u (Top Kat) and 

W-P Company W-P) as mine operators and Bear Run Coal 9 Inc. 

Bear Run as a successor-in-interest with two safety violations 

at the No. 21 Mine and seeking civil penalties for those 

violations, 'i The Secretary"s motion to withdraw Citation 

No. 3136609 was granted andu as the petition has been amendedu 

This civil penalty case is one of at least 138 separate 

cases filed by the Secretary against W-P at the No. 21 Mine. 

Since the threshold issues presented herein are common to all 

of the cases this case was selected upon agreement of the parties 

to litigate those common issues as a "test case" and the others 

have been placed on stay pending final disposition of this case. 

682 
only one violation under the mandatory standard at 30 C.F.R. 

§ 77.200 remains at issue. 2 At hearing the petitions for 

qivil penalty against Top Kat and Bear Run were dismissed for 

failure to execute service on those parties. Accordingly, only 

the liability of W-P as an operator of the No. 21 Mine remains 

at issue. 

Background 

It is not disputed that during relevant times W-P was 

engaged in the business of purchasing coal from contract 

mining companies, processing that coal at a W-P preparation 

plant, and selling and distributing the coal to the WheelingPittsburgh Steel Corporation. W-P's offices and its preparation 

plant are located in Logan County, West Virginia. These are 

its only facilities. W-P leases the mineral rights to six deep 

mines in Logan County and has contract mining agreements with 

five different contract mining companies. Under those 

agreements, the contract mining companies mine the coal in 

exchange for a royalty payment.fromW-P based on the amount of 

clean coal produced. This arrang~ment is common in southern 

West Virginia, where approximately 80 to 90 percent of all deep 

mines are operated on a contract-mining basis. 

This case involves a deep mine known as the No. 21 Mine, 

located near Stirrat, West Virginia. W-P leases the mineral 

rights to that mine pursuant to a 1969 lease with the owner 

of the mine, Cole and crane. W-P operated this mine from 

1978 until January 1988, when it entered into a contract 

mining agreement with Deer Run. Dear Run terminated its 

contract with W-P in November 1989, and a new contract was 

awarded to Top Kat on December 29v 1989. There is no dispute 

that W-P and Top Kat are separate and distinct companies and 

have no common ownersv officersu employers or facilities and 

there has been no interchange of employees between the companies. 

The contract between W-P and Top Kat was a standard 

industry form. Under the contract, Top Kat agreed to 

assume complete control over the operation of the Noo 21 

Minev including the hiring of miners and the administration 

health and safety matters. W-Pu in turn 8 agreed to pay 

Top Kat $21.00 for each ton of clean coal produced. The 

contract further provided, in relevant part, as follows: 

2 This Citation, No. 3750647, was issued September 4, 1991, 

and alleges as follows: 

"The No •. 21 bathhouse facilities was [sic] not maintained in 

good repair to prevent accidents and injuries to employees in 

that there was an area of the bathhouse floor approximately 

2-1/2 foot by 2-1/2 foot that was rotten and the wood was wet and 

weak (ready to collapse at any time)." 

683 
III(H). Owner and Contractor understand, agree 

and reaffirm and hereby covenant, each with the 

other, that in every respect in the performance 

of this Contract, Contractor shall stand in a 

relationship with Owner as that of an independent 

contractor and is in no manner a servant, agent, 

employee, shareholder, joint venturer or partner 

of Owner, and that this Contract shall be construed 

accordingly. Except as specified herein to the 

contract, Contractor shall do the work required 

hereby according to its own manner and methods, 

without the right of direction or supervision by 

owner and Owner shall have the right to look to 

Contractor only for the results required and to be 

accomplished hereunder. 

There is no dispute that W-P complied fully with all prov1s1ons 

of the contract throughout Top Kat's operation of the No. 21 

Mine. 

Under the contract, W-P also agreed to provide engineering 

services at the mine in exchange for a fee deducted from Top 

Kat's royalty payments. These engineering services, which W-P 

provides at all of its contract mines, included the preparation 

and updating of the mine map. Top Kat would indicate to W-P 

what section Top Kat wanted to mine and W-P engineers would then 

make projections for that particular area. This provision was 

included in the contract because, under the terms of its lease 

with Cole and Crane, W-P is required to submit mining projections 

and plans to them for their approval before mining. Similar 

provisions requiring the mine or mineral rights owner to provide 

engineering services are common in the contract mining industry. 

Pursuant to the contract, W-Pus Chief Engineeru Joseph Dotsonu 

and members of his engineering crew also visited the mine 

approximately once a week to set spads or update the mine map. 

The engineering crew did not direct Top Kat where to mine coal, 

other than in conformity with the mine projections. 

Under the contractr W-P also permitted Top Kat to use 

W-P equipment located on the mine premises for a fee of 

$1.50 per ton of coal produced. Effective in early 1990 1 

W-P waived this fee because of the poor condition of the 

equipment and Top Katus financial problems. W-P also loaned 

Top Kat 5uOOO for the purchase of a wage bond required by West 

Virginia law. In making that loan W-P required Top Kat to 

execute a security agreement and promissory note. W-P was 

reimbursed for that loan with interest, at the rate of 

$6,000 per month. 

W-P also permitted Top Kat to order supplies from its 

supply house deducting the cost of those supplies, plus a 

10 percent service charge, from subsequent royalty payments. 

684 
W-P had an identical supply arrangement with all five of its 

contract miners. This type of supply house arrangement is 

also common in the contract mining industry. 

During the period when Top Kat was the contract miner 

at the No. 21 Mine, W-P President Vernon Cornett recommended 

two persons to Top Kat for jobs as foremen. Top Kat was 

free however to accept or decline those recommendations. 

W-P management also telephoned Top Kat on a daily basis to 

ascertain production levels. If Top Kat was having production 

problems such problems would typically be reported during 

these calls. W-P President, Vernon Cornett, and W-P Safety 

Directorv Mickey Senator, visited the mine infrequently, 

Cornett visiting approximately once a month to check the coal 

stockpile and Senator occasionally visiting to check on the 

roadways and mine maps. 

During 199lv Top Kat began experiencing financial troubles. 

At the request of Top Kat's p~esident, W-P advanced money to 

meet its payroll and other obligations. W-P recouped this 

money from Top Kat by deducting those advances from subsequent 

royalty payments. 

During the time that Top Kat was the contract miner 

at the No. 21 Mine, MSHA conducted a number of health and 

safety inspections. MSHA never provided W-P with notice 

that an inspection was about to begin, did not invite W-P 

to participate in any inspection, did not invite W-P to 

participate in any pre-inspection conferences and cited only 

Top Kat as the operator of the mine. Moreover, the Secretary 

has never cited W-P for failing to register with MSHA as an 

operator of the No. 21 Mineo 

During late 1990 and 199lu there was an increased number 

MSHA. inspections and Top Kat was issued an increased number 

citations and orders. This resulted in decreased coal 

production. Apparently believing that the increased MSHA 

activity may have been caused by a personality conflict between 

MSHA and Top KatJ W-P Safety Director Mickey Senator requested 

meeting between MSHA and Top Kat management in late 1990 or 

199lo Senator attended the meeting in an effort to resolve 

·the apparent conflict. 

?xound February 199lp MSHA held meetings at the Logan Field 

Office with Top Kat representatives concerning the mine map and 

ventilation plan for the No. 21 Mine. W-P's engineer, Joseph 

Dotson and Mickey Senator, attended some of those meetings. 

Around August 1991, Top Kat's President, William Adkins, 

requested that Cornett send Mickey Senator to accompany MSHA 

inspectors on the next inspection. Top Kat apparently made 

this request because Top Kat knew that Senator was experienced 

685 
with mine safety and health matters and with the local MSHA 

office. Cornett thereafter sent Senator to accompany MSHA 

inspectors and a Top Kat representative on an inspection on 

August 26 and 27, 1991. The inspection involved a shutdown of 

the belt lines. According to Senator, his role in the inspection 

was to observe the interaction between the MSHA and Top Kat 

representatives to determine whether a personality conflict was 

indeed the cause of the increased number of citations and orders, 

and to mediate any personality problem. Senator maintains that 

he understood that Top Kat was the sole operator of the No. 21 

Mine and had sole responsibility for health and safety matters at 

the mine. He maintains that he therefore did not pay close 

attention to any health or safety violation cited during that 

inspection, nor did he take notes concerning those alleged 

violations. Moreover, he did not direct or advise Top Kat 

concerning abatement of the alleged violations. 

Cornett, Senator and Dotson also visited the Logan Field 

Office on occasion to discuss the No. 21 Mine and the other 

mines to which W-P leased the.mineral rights. The discussions 

as they pertained to the No. 21 Mine were general discussions 

concerning whether Top Kat was going to be able to mine coal. 

In contract mining situations, it is apparently common for 

representatives of the owner or lessee to meet with MSHA 

representatives. 

on September 4, 1991, MSHA issued Citation No. 3750647 

against Top Kat for allegedly having failed to maintain the 

flooring of a bathhouse at the No. 21 Mine, in alleged 

violation of 30 C.F.R. § 77.200. According to Tyrone Stepp, 

the issuing inspector, the bathhouse had "basically rotten, 

deteriorated floor o 9 MSHA did not give W-P notice of the 

inspectionu did not invite W-P to participate in the inspectionu 

and did not invite W-P to attend the pre- or post- inspection 

conference" 

In October 1991, Vernon Cornett met with William Adkins 

to discuss Top Kat's continued operation of the No. 21 Mine. 

Adkins informed Cornett that MSHA had put the No. 21 Mine on 

target statusu and that Top Kat was shutting down the mine to 

deal with its health and safety problems. Cornett noted the 

production irregularities that Top Kat experienced over the 

preceding yearu and further noted that Top Kat had been unable 

to resolve its problems with MSHA. Cornett then told Adkins 

that he, Cornett, did not see how Top Kat could continue to 

operate. Although W-P had the right to terminate the contract 

for Top Kat's failure to meet minimum production levels, W-P 

did not do Sbo 

In late October 1991, Lawrence Fowler, the District 

Manager of the MSHA District Office covering the Logan Field 

Office, telephoned Noah Ooten, the MSHA superintendent 

686 
responsible for the No. 21 Mine. In that conversation, Fowler 

instructed Ooten to modify the outstanding citations against 

Top Kat to name W-P as a "co-operator .. " After Fowler instructed 

Ooten to modify the citation, a representative of MSHA's 

collection office visited the Logan Field Office to search for 

records to support MSHA's theory of co-operator liability. The 

Solicitor's Office subsequently advised Ooten on the language the 

Logan Field Office should use in modifying the citation. Ooten 

then instructed his inspector to modify the citations. 

MSHA modified the citation in this case, Citation 

No. 3750647, at 9:32a.m. on November 14, 1991, more than a month 

after Top Kat had ceased operations. Approximately one hour 

later, and without having served W-P with the modified citation, 

MSHA issued Order No. 3742534 against W-P for allegedly having 

failed to abate Citation No. 3750647. At approximately 1:00 p.m. 

on November 14 9 1991 6 MSHA served W-P with the modification of 

Citation No. 3750647. and Order No. 3742534. 

Before the modifications~-MSHAdid not notify W-P that W-P 

was considered to be a nco-operator" of the No. 21 Mine nor that 

it would seek to hold W-P liable for safety and health violations 

at the No. 21 Mine. 

Analysis 

A preliminary issue raised in this case is whether W-P was 

an noperator" within the meaning of the Act. The term "operator" 

is defined in Section 3(d) of the Act as any "owner, lessee, or 

other person who operates, controls, or supervises a coal or 

other mine o •• aa. since there is no dispute that W-P was an 

u'ownerY' and aolessee 90 of the subject mine 9 W-P was therefore an 

"operatorgu and subject to liability for violations committed by 

its contractors this mine. Harman Mining Corporation v. 

Federal Mine Safety and Health Review Commission, 671 F.2d 794 

(4th Cir. 1981) 9 Secretary v. Calvin Black Enterprises, 7 FMSHRC 

1151 (1985) 0 Secretary v. Phillips Uranium Corp., 4 FMSHRC 549 

(1982) See also Bituminous Coal Operators' Assoc., Inc. v. 

Secretary of Interiorv ~47 F.2d 240 (4th Cir. 1977), similarly 

construing provisions of Section 3(d) of the Federal Coal Mine 

Health and Safety Act of 1969 identical to those of Section 3(d) 

issue herein. W-P 1 s position, with which the Secretary is in 

agreement 0 that a mine owner or lessee can be liable as an 

9

'operator'' only the facts establish the exercise of control 

or supervision over the operation of the mine is therefore 

erroneous as a matter of law. In this case the Secretary also 

maintains that W-P is liable as a "co-operator" based on the 

alleged control and supervision it exercised at the mine. The 

term "co-operator" is not defined in the Act, however, and any 

liability on the part of W-P in this case must rest upon a 

finding that it was an "operator" under Section 3(d) of the Act. 

687 
W-P next argues that the Secretary1 s decision in this case 

to proceed against W-P was not consistent with the purposes 

of the Act and that the citation must be vacated under the 

principles set forth in Phillips Uranium, supra, at 551-553. 

In the Phillips case the Commission reaffirmed the principles 

enunciated in Old Ben Coal Co., 1 FMSHRC 1480 (1979) that in 

choosing the entity against whom to proceed, the Secretary 

should look to such factors as the size and mining experience 

of the independent contractor, which parties contributed to 

the violation, and the party in the best position to eliminate 

the hazard and prevent it from recurring. 4 FMSHRC at 552-53. 

The Commission stated in Phillips that a Secretarial decision 

grounded solely on considerations of "administrative convenience" 

rather than the protective purposes of the Act could not be 

approved. See also Secretary v. Calvin Black Enterprises, 

suprao 

Applying these principles to the present case, I find that 

the Secretary has failed to establish that he has proceeded 

against W-P in this case on anything other than administrative 

convenience in an attempt to collect civil penalties from a 

"deeper pocket. nv Indeed, the Secretary readily acknowledges that 

one reason for selecting w~P for prosecution herein apparently 

after discovery tha·t the contractor could not pay the civil 

penalties was W-Pils 01 resources. uv Beyond that the Secretary has 

essentially refused to reveal the reasoning, if anyF behind his 

selection of W-P for prosecution citing a "deliberative process" 

privilege. The result is that there is no evidence that the 

Secretary considered the factors enunciated in the Phillips 

decision. 

Moreoverc evidence there is in this case 

suggests <::ha·t p criteria u W-P was not the 

against. Top Kat was clearly in 

charge of ·the mining activities and because only Top 

Kat had crews of working miners at the mine during relevant times 

reasonably be inferred that it was the primary contributor 

condition it was in the best position to 

:• and ·chat icc 1.v-as best prepared to prevent 

ly 1 l'ias Top Kat us employees who were 

primarily exposed to the cited hazard. While the Secretary also 

argues that W-P exercised co-equal supervision over the mining 

activi·ties 'che facts not: support this argument. 

The limited evidence is available demonstrates moreover 

·that decision ·to select W-P for prosecution was in fact based 

on administrative convenience. For example MSHA did not cite W-P 

until after Top Kat ceased operations and was no longer in 

business. Moreover MSHA inspectors were at the No. 21 Mine 

frequently during 1990 and 1991, at which time they had ample 

opportunity to observe the relationship between Top Kat and W-P. 

688 
If citing W-P for violations at the Noo 21 Mine would in fact 

have promoted the health and safety of miners, MSHA should have 

cited W-P at the time of the alleged violations. 

In addition, Noah Ooten from MSHA's Logan Field Office 

testified that, after Top Kat ceased operations, a representative 

of MSHA's Mount Hope District Office advised him that MSHA would 

be modifying the outstanding citations against Top Kat to name 

W-P as a "co-operator." According to Ooten, a representative of 

MSHA's collection agency subsequently visited the Logan Field 

Office to search for evidence to justify citing W-P as a 

••co-operator. n The decision was also made by MSHA's Office of 

Assessments and was made before the Secretary's investigation 

into the facts which he now contends support W-P's liabilityo 

It may reasonably be inferred from these facts that the 

Secretary's motivation in citing W-P was therefore primarily 

to obtain a 11 deep pocketn to ensure collection of penalties. 

The idea that the purpose of-charging W-P was to advance the 

health and safety interests of miners appears to have been 

only an afterthought not consistent with the actual sequence 

of events. Under the circumstances I find that the Secretary 

has not complied with the criteria set forth in Phillips Uranium, 

and this case must accordingly be dismissed. In light of this 

determination there is no need to decide whether the citations 

in this case could have been otherwise legally amended within the 

framework of Wyoming Fuel Company, 14 FMSHRC 1282 (1992). 

ORDER 

The civil penalty proceedings Docket No. WEVA 92-746 

are hereby dismissed as against Top Kat Miningu Inc.u and Bear 

Run Coal Inc., lure to execute service. Furthermoreg 

Citation Noo 3750647 and Order Noo 3742534 are vaca~ed and these 

civil penalty proceedings are dismissed against W-P Coal company 

for the reasons stated in the above decision. 

/l I 

J I I ''i <%,<:;,. 

/1 // \\ II/ Lv\ /J j l'J ~. rLlv \ tl/U~~ ' r I ' I 

l Gary Me~-~ f ck l I 

Adminis tative Latpudge 

703-756 r261 1 

689 
Distribution: 

Gretchen M. Lucken, Esq., Office of the Solicitor, 

u.s. Department of Labor, Labor, 4015 Wilson Boulevard, 

Suite 400, Arlington, VA 22203 (Certified Mail) 

Kurt A. Miller, Esq., Thorp, Reed and Armstrong, 

One Riverfront Center, Pittsburgh, PA 15222 (Certified 

Mail) 

/lh 

690 
FEDERAL l!llliE SAFETY ABD BRATlJIH REVDSW COIDIISS:IOR 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 91993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION ( MSHA) 1 

Petitioner 

Docket No. CENT 92-219-M 

A.C. No. 41-03717-05501 

Vo . • 

: Blum Quarry 

ARROW CRUSHED STONE, INC., 

Respondent 

. . 

. • 

Appearances: 

Before: 

DECISION 

Nancy Carpentier, Esquire, Office of the 

Solicitor, u.s. Department of Labor, Dallas, 

Texas, for Petitioner; 

suzanne Arnold, President, Arrow crushed stone, 

Inc. and John Whitehorn, Vice-President, Arrow 

crushed stone, Inc., for Respondent 

Judge Melick 

This case is before me upon the petition for assessment 

of civil penalty filed by the Secretary of Labor pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 

1977 9 30 U.S.C. § 801, et ~~ the "Act" charging Arrow 

Crushed Stoneu Inc. (Arrow) with 15 violations of mandatory 

standards and seeking civil penalties of $1 8 107 for those 

violations. 

During hearings Petitioner submitted a motion for 

settlement with respect to all citations, except Citation 

No. 4108051 9 seeking a reduction in penalties from $924 to 

$462 and seeking to remove the "significant and substantial 19 

classification from Citation Nos. 3609050, 3690951, 360952, 

3609056 and 360959. The motion was supplemented posthearing 

and was thereafter approved. An order approving the settlement and directing appropriate payment follows at the 

conclusion of this decision. 

The one citation remaining at issue, citation No. 4108051, 

alleges a "significant and substantial" violation of the 

standard at 30 C.F.R. § 56.14101(a)(l) and charges as follows: 

On inspection the primary brakes on the 

Terex 72-51B front-end loader were not capable 

of stopping or holding the equipment stationary 

691 
on the incline ramp, primary feed hopper. The 

loader work area and practice typically to feed 

primary, will operate in the plant area with 

observed foot traffic. 

The cited standard provides, in relevant part, as -follows: 

Self-propelled mobile equipment shall be equipped 

with a service brake system capable of stopping 

and holding the equipment with its typical load 

on the maximum grade it travels. 

Mike A. Davis 1 an inspector for the Mine Safety and 

Health Administration (MSHA) testified that during the 

course of his inspection of the Arrow operation on March 31, 

1992, and upon examination of the cited front-end loader, he 

observed at the right front wheel what he believed to be a 

brake fluid leak. As a result of this observation Davis 

performed a '

0standing brake test" on the loader. The loader 

was backed up the 100 foot long ramp, graded from zero to 

4 feet and Inspector Davis signaled the equipment operator 

to stop. The loader failed to stop. The test was repeated 

and again the loader failed to stop. According to Davis, 

during the tests the bucket was unloaded and held off the 

ground 1 to 2 feet. The loader operator, Pueblo Villasana, 

also told Davis that he had applied the brakes during the 

tests but they would not hold. 

Davis concluded on the basis of these tests that the 

cited standard had been violated. Davis further concluded 

that the violation constituted a serious hazard. He testified that the primary hopper into which the front end loader 

tmloaded adjacent ~co Jche haul road on which there was 

pedestrian and l duty vehicleso Indeedu at 

t:.he 'c.ime he cit:.ed t.he condition he observed three persons 

on the ground. The violation was further aggravated by the 

absence of any berm on the ramp, the fact that the operator 

did not wear a seat belt and that there was no operable backup 

alarm nor operable on the cited loader. The loader was 

~lso large in size and according to Davis could cause serious 

damage a light duty vehicle such as a pickup truck. Under 

the circumstances Davis concluded that it was highly likely 

injuries to occur and that those injuries could be fatal. 

There no direct evidence this case to contradict 

Inspector Davis; observationso Arrow Vice President John 

Whitehorn testified that the loader operator subsequently 

advised him that he had told the inspector that he had in 

fact inspected the front end loader that morning and that 

it had been working fine at that timeo Whitehorn also testified that typically the loader is used in reverse when backing 

692 
down the ramp to the primary hopper and therefore the test 

performed by Inspector Davis was not a true indication of 

how the brakes would perform in reverse. 

I have evaluated the testimony of Mra Whitehorn but do 

not find that it contradicts the testimony of Inspector Davis 

in essential respects. I find accordingly that the violation 

was nsignificant and substantial. wa See Secretary v. Mathies 

coal Co., 6 FMSHRC 1 (1984). I do however credit the hearsay 

reports of the loader operator that there were no problems 

when he inspected the front-end loader earlier that morning 

and that it had been working fine at that time. This evidence 

suggests that the brake condition may very well have deteriorated 

during the course of operations during the morning and had not 

been noticed by the loader operator the brake tests. 

Under the circumstances I find the operator chargeable with 

little negligence. Considering all the criteria under Section 

110(i) of the Act I find that the proposed penalty of $183 is 

appropriate. 

ORDER 

Citation No. 4108051 is AFFIRMED with its 11 significant 

and substantial" findings. The 95 significant and substantial" 

findings with respect to Citation Nos. 3609050u 36095lu 

3609052 1 3609056 and 3609059 are deleted. Arrow Crushed Stone, 

Inc., is hereby directed to pay c~'vilpenaltieslf $645 within 

30 days of the date of this d isio . 

L I (l \ 

I \ I ! I~ 0 

; /\ (\ \ ,J ('//',, 

,, : ; ~. / \/ \. : lv \ \. 

J Gary M~_j ick \ i V '',""- .. Adminis rative rlJw Judge ~ .. 703-756 6261 \I 

Nancy B. Carpentier, Esq. of the , u.s. Department of Laborv 525 South Griffin Street 0 

Suite 501u Dallas 9 TX 75202 (Certif Mail 

Suzanne Arnold, President, John Whitehornu Vice-Presidentu 

Arrow Crushed Stone, Inc., P.O. Box 693 0 Cleburne 0 TX 76031 

(Certified Mail) 

/lh 

693 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.APR 1 21993 

ROY FARMER and OTHERS, 

Complainants 

COMPENSATION PROCEEDINGS 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

Docket No. VA 91-56-C 

Docket No. VA 91-57-C 

VP-3 Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern complaints for compensation 

filed by the complainants against the respondent pursuant to 

section 111 of the Federal Mine Safety and Health Act of 1977. 

In Docket No. VA 91-56-C, the complaining miners claimed 

compensation for the time they were idled as a result of a 

section 107(a) Imminent Danger Order No. 3354742 1 issued by MSHA 

Inspector Arnold D. Carico on December 5~ 1990o The inspector 

also issued a simultaneous section 104(a) citation No. 3354743, 

citing an alleged violation of mandatory safety standard 

30 CoFoRo § 75o3l6u in conjunction with the imminent danger 

ordero 

In Docket No. VA 91-57-C, the complaining miners claimed 

compensation for the time they were idled as a result of a 

section 107(a) Imminent Danger Order No. 3508496 1 issued by MSHA 

Inspector Claudy Jo Scamell on December 13, 1990o Contrary to 

the assertion made by the complainants in their complaint, I find 

no evidence that the order issued by inspector scamell on 

December 13~ 1990 1 was accompanied by a section 104(a) citation. 

On April 3 1 1991 1 I issued decisions in Island Creek Coal 

Company Vo Secretary of Labor (MSHA} and UMWA District 28, Local 

1640, Docket Nos. VA 91-47-R, VA 91-48-R, and VA 91-49-R, 

vacating the aforementioned imminent danger orders and citation 

which gave rise to the instant compensation claims. 13 FMSHRC 

592 (April 1991) • The Secretary and the UMWA filed appeals with 

the Commission, and the compensation claims were stayed pending 

the Commission's review and decision. Thereafter, on March 3, 

1993, the Commission rendered its decision affirming my decisions 

vacating the imminent danger orders and citation. Under the 

circumstances, I issued an Order to Show Cause on 

694 
March 16, 1993, ordering the parties to state why the previously issued stay should not be lifted and the compensation claims 

dismissed as a result of the Commission's decision. The parties 

were ordered to respond to my show-cause order within ten (10) 

days of its receipt. 

Discussion 

My show-cause order was served on the parties by certified 

mail. The return postal receipts reflects that the order was 

delivered to the respondent's counsel on March 22, 1993, and to 

the complainant's representative on March 23, 1993. on March 25, 

1993, the respondent's counsel informed me by telephone that the 

respondent does not oppose the lifting of the stay and the 

dismissal of these claims, and that the respondent does not wish 

to respond further. 

The complainant's representative of record (Roy Farmer) has 

not responded to my show-cau~~ order, nor has he communicated 

with me further in this regard. Commission Rule 63(a), 29 C.F.R. 

§ 2700.63(a), provides as follows: 

(a) Generally. When a party fails to comply with an 

order of a judge or these rules, an order to show cause 

shall be directed to the party before the entry of any 

order of default or dismissal. 

I have on several occasions in the past furnished Mr. Farmer 

(at his request) with copies of the Commission's procedural rules 

in several Island Creek civil penalty proceedings in which 

Mr. Farmer was granted party status as the representative of 

miners. Under the circumstancesu I have no reason to believe 

that Mr. Farmer is ignorant of the rules. Accordingly, I 

conclude and find that the compensation claims should be 

dismissed because of the complainantsu failure to respond to my 

Order. 

ORDER 

The previous stays ARE LIFTED. The compensation claims ARE 

DENIEDu and these matters ARE DISMISSED. 

&~~ Administrative Law Judge 

695 
Distribution: 

Mr. Roy Farmer, P.O. Box 63, Swords creek, VA 24649 (Certified 

Mail) 

MarshallS. Peace, Esq., 201 West Vine Street, Lexington, 

KY 40507 (Certified Mail) 

Jay Dalton, General Counsel, Island Creek Coal Company, P.O. 

Box 11430, Lexington, KY 40575 (Certified Mail) 

ml 

696 
I'BDBRAL JUJIB SAFETY DD JIBAL'!rll RBVJ:BW COJDI.l:SS:IOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 131993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION on behalf, 

of Samuel Coble, 

Petitioner 

v. 

CHRISTIAN COAL CORPORATION, 

Respondent 

. . 

0 

. 

DISCRIMINATION PROCEEDING 

Docket No. KENT 93-1-D 

A.C. No. MADI CD 92-02 

Foxfire Mine 

ORDER APPROVING SETTLEMENT 

Before: Judge Feldman 

This case is before me as a result of the above captioned 

complaint filed under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977. The parties now seek my approval of 

their joint motion for settlement of this matter. The substance 

of their proposed resolution is that the respondent, without 

admitting that any discriminatory act occurred, has agreed to pay 

the complainant the sum of $5,000. In return, the complainant 

has agreed to request dismissal of his complaint. In addition, 

t.he respondent has agreed pay a penalty of $200. 

I have considered the information provided support the 

parties 0 motion and I conclude that the proffered settlement 

should be approved. Accordingly, the motion for the approval of 

settlement IS GRANTED and IT IS ORDERED that the respondent make 

payment of the sums noted above within 30 days of the date of 

this order. XT IS FURTHER ORDERED that upon receipt of paymentu 

Samuel CobleQs complaint in this matter IS DISMISSED WITH 

PREJODIC~. 

697 

/1 

p~ 

Jerold Feldman 

Administrative Law Judge 

(703) 756-5233 
Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, u.s. Department of Labor, 2002 Richard Jones Rd., suite B-201, Nashville, TN 

37215 

(Certified Mail) 

Christain Coal Corporation, Agent for Service, David L. Roberts 

Route 2, outer Laffon Trail, Madisonville, KY 42431 

(Certified Mail) 

Robert P. Moore, Esq., 21 Sugg Street, Madisonville, KY 42431 

(Certified Mail) 

vmy 

698 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CONSOLIDATION COAL COMPANY, 

Respondent 

APR 13 1993 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 92-771 

A.C. No. 36-04175-03569R 

Robena Prep Plant 

DECISION APPROVING SETTLEMENT 

ORDER.TOMODIFY 

ORDER TO PAY 

Before: Judge Merlin 

The above-captioned case was the subject of an extensive 

conference call between the undersigned and counsel for both 

parties. The Solicitor subsequently filed a motion to approve 

settlement of the one violation involved in this case. The 

originally assessed penalty was $227 and the proposed settlement 

is for $175. 

citation No. 3691596 was issued for a violation of 30 C.F.R. 

§ ?:o402(a because the bathroom on the first floor of the prep 

was not maintained in sanitary condition. The Solicitor 

requests tha·t t:.he citation be modified to reduce "che likelihood 

of injury from reasonably likely to unlikely and to delete the 

significant and substantial designation. The Solicitor advised 

at the conference call that after further investigationu the 

amount and location of the accumulation of dirt and mud would not 

tha·t an injury was reasonably likely. 

, have considered the representations and documentation 

submitted this case along with the discussions in the conference callc and I conclude that the proffered settlement 

appropriate under the criteria set forth in section llO(i) of the 

Act. 

In light of the foregoing, the motion for approval of 

settlement is GRANTED. 

It is ORDERED that Citation No. 3691596 be MODIFIED to 

reduce the likelihood of injury from reasonably likely to unlikely and to delete the significant and substantial designation. 

699 
It is further ORDERED that the operator pay a penalty of 

$175 within 30 days of the date of this decision. 

,... 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified !-1ail) 

Myrna A. Butkovitz, Esq. 1 Office of the Solicitor, U.S. Department of Labor, 14480 Gateway Bldg., 3535 Market st., Philadelphia, PA 19104 

Daniel E. Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241 

gl/ 

700 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LITTLE ROCK QUARRY COMPANY, 

INCORPORATED, 

Respondent 

1 61993 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-202-M 

A.C. No. 03-01475-05526 

Docket No. CENT 92-204-M 

A.C. No. 03-01475-05528 

Docket No. CENT 92-205-M 

A.C. No. 03-01475-05529 

De Roche Creek Quarry 

DECISION ON REMAND 

Before: Judge Lasher 

On January 15, 1993, I issued a Decision and Order of Dismissal as a result of the Secretary's failure to show good cause 

for failure to comply with a prehearing order. A brief history 

of events is in order. 

As the Commission noted its remand of February 22, 1993~ 

~ne Secretary requested reconsideration on January 27 1993, incHeating the parties had Ge informal settled 91 the case on 

January 12, 1993v three days prior to the Dismissal Order. 1 The 

Commission determined that my jurisdiction terminated with the 

issuance of the Dismissal Order on January 15, 1993, and treated 

Secretary's Motion for Reconsideration as a timely petition 

for discretionary review thereof, and 'c.o afford the Secretary the 

opportunity to present position to me, vacated the Dismissal 

Order, and remanded the matter for such action as I deem appropriate. In compliance therewith, by Order dated March 2, 1993, 

I gave the Secretary until April 2u 1993, to file his position in 

writing l:vith me. 

By Order dated February 10, 1993, I did deny the Secretary's motion 

for reconsideration noting that at the time the parties informally settled the 

matter on January 12, 1993, it was unknown to Respondent that the Secretary had 

not complied with and Order to Show Cause I had issued, nor with a subsequent 

Order. Respondent indicates that had it been in possession of all the facts, it 

would in all probability have declined the Secretary's offer of settlement, an 

allegation which I noted in My Order Denying Motion for Reconsideration. 

701 
On April 1, 1993, the Secretary filed a "Response to the 

Order of March 2, 1993, Related to the Dismissal for Want of Prosecution and Response to Respondent's Renewed Motion for Dismissal.11 In that it overlooks much of the history of non-compliance 

by Petitioner, including the fact that it was put on notice to 

take responsive action by written motions to dismiss for its noncompliance by Respondent on October 19, 1992, and November 13, 

1992, a letter dated November 25, 1992, indicating Petitioner had 

not communicated with Respondent, and Orders of various sorts 

from me dated October 20, 1992, December 3, 1992, and December 11, 1992, this "Response" does not contain an accurate depiction of events which led to the dismissal of the three dockets in 

questiono Further, Petitioner's explanation 2 that it was a 01 scheduling oversight," etc., does not explain away the failure 

to discharge the responsibility raised by repeated prompting from 

both this Judge and Respondent over the period of time involved 

from the issuance of the pre-hearing order on September 14, 1992, 

to December 3 1 1992, when the Order to Show Cause issued. 3 In 

short, Petitioner did not establishgood cause for its lengthy 

non-compliance even though repeatedly urged and prompted to do 

so. 4 

Petitioner 

tled u ns and that 

Respondent that 

proposal. This 

pointed out, 5 

also argues that"··· this case 

Petitioner has not received any 

Respondent was not agreeable to 

argument does not appear valid. 

has been setindication from 

the settlement 

As I previously 

2 In its Response to Order to Show Cause dated December 16 1992. 

As the Order to Show Cause indicated, Petitioner was required to show 

good cause at that "point in time" why it should not be deemed to have abandoned 

its prosecution of this matter. Petitioner's allegations in its April 1, 1993, 

Response regarding its compliance, which I do not concur in, are in any event 

untimely, and should have been made in response to the Order to Show Causeo 

L:. The importance to the Commission's ability to function and process 

proceedings to require at least minimal feedback from counsel was described in 

my Decision and Order Dismissing Proceeding and will not be repeated here. 

Nevertheless, it is believed the particular counsel involved is capable and 

conscientious and it is hoped that whatever circumstances were developing which 

led to the happenings here have been alleviated. The rights of the Respondent 

must also be considered. 

5 Order Denying Motion for Reconsideration dated February 1993. Although my jurisdiction to issue such had terminated, this part of the reasoning 

therefrom appears applicable. 

702 
"In its Answer opposing Petitioner's 

Motion for Reconsideration, Respondent 

alleges: 

9. Unknown to Respondent, however, at the 

time of such agreement to compromise, was 

the fact that Petitioner had not complied 

with the Order to Show cause nor with the 

subsequent Order of 11 December 1992. 

10. Superior knowledge was had by Petitioner 

on 11 January 1993 at the time of its 

telephone call to Respondent initiating 

its offer to compromise in the sum of 

$760.00, that it had failed to comply with 

the Court's Order. 

11. Had Respondent been in possession of such 

knowledge, it in all probability, would 

have declined Petitioner's offer •••• " 

Under the circumstances, it would be unreasonable to infer 

that the settlement, oral to begin with, would have proceeded 

had the facts and procedural posture of the case been known to 

Respondent. 

I conclude that Petitioner's position lacks merit, such is 

DENIED, and my Decision and Order Dismissing Proceeding dated 

January 15, 1993, is AFFIRMED. 

Distribution~ 

Michael H. Olverav Esq. 9 Office of the Solicitor, U.S. Department 

of Labor 1 525 Griffin street, Suite 501 Dallas, TX 75202 

(Certified Mail) 

Mr. Ike Carter, Jr., President 1 LITTLE ROCK QUARRY, P.O. Box 548, 

Benton, AR 72015 (Certified Mail) 

ek 

703 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD 1280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

APR 151993 

FRED L. PETERS, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEST 92-311-D 

Vo 

DENV DC 91-02 

TWENTYMILE COAL COMPANY, 

DARYL FIRESTONE and 

CYPRUS MINERALS COMPANY, 

Respondents 

DECISION 

Appearances: Patricia Jo stone, Esq., Lakewood, Colorado, 

for Complainant; 

Stanley R. Geary, Esq., Pittsburgh, Pennsylvania, 

for Respondents. 

Before: Judge Morris 

This case involves a discrimination complaint filed by Fred 

L. Peters against Respondents Twentymile Coal Company, Daryl 

Firestone and Cyprus Minerals Company, pursuant to the Federal 

Mine Safety and Health Act of 1977, 30 UoS.C. § 801 et ~, (the 

"Act 11 " 

A hearing commenced in Denver, Coloradou on December 8, 

1991. The parties filed post-trial briefs. 

Section 105(c) (1) of the Act provides, part 9 as follows~ 

No person shall discharge or 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 mineru representative 

of miners or applicant for employment in any 

coal or other mine subject to this Act because such miner, representative of miners or 

applicant for employment, has filed or made a 

complaint under or related to this Act, 

including a complaint notifying the operator 

or the operator's agent, or the representative of the miners at the coal or other mine 

of an alleged danger or safety or health 

violation in a coal or other mine or because 

704 
such miner, representative of miners or 

applicant for employment is the subject of 

.medical evaluations and potential transfer 

under a standard published pursuant to 

section 101 or because such for employment 

has instituted or caused to be instituted any 

proceedings under or related to this Act or 

has testified or is about to testify in any 

such proceeding, or because of the exercise 

by such miner, representative of miners or 

applicant for employment on behalf of himself 

or others of any statutory right afforded by 

this Act. 

APPLICABLE CASE LAW 

The general principles governing analysis of discrimination 

cases under the Mine Act are settled. In order to establish a 

prima facie case of discriminationunder section 105(c) of the 

Mine Act, a complaining miner bears the burden of proof to 

establish that (1) he engaged in protected activity and (2) 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. Consolidated Coal co. v. Marshall, 663 F2d 1211 

(3rd Cir. 1981); 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 the operator cannot rebut 

the prima facie case, it nevertheless may defend affirmatively by 

proving that it. also vJas motivated by ·the miner"s unprotected 

and would have ·taken the adverse action in any event for 

the unprotected activity alone. Pasulaf supra; Robinette, supra; 

see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F2d 639, 642 

(4th Cir. 1987); Donovan v. stafford Constr. Co., 732 F2d 954, 

958-59 (D.C. Ciro 1984)9 Boich v. FMSHRC, 719 F2d 194, 195-96 

(6th Cir. 1983) (specifically approving the Commissionvs PasulaRobinette test)o Cf. NLRB v. Transportation Management Corp., 

462 u.s. 393v 397-403 (1983) (approving nearly identical test 

under National Labor Relations Act.) 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 

FMSHRC 2508 0 2510-11 (November 1981) 0 rev'd on other grounds sub 

nom., Donovan v. Phelps Dodge Corp.u 709 F.2d 86 (D.C. cir. 

1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 {June 

1984). As the Eighth Circuit analogously stated with regard to 

discrimination cases arising under the National Labor Relations 

Act in NLRB v. Melrose Processing co., 351 F.2d 693, 698 {8th 

Cir. 1965): 

705 
It would indeed be the unusual case in which 

the link between the discharge and the (protected) activity could be supplied exclusively by direct evidence. Intent is subjective 

and in many cases the discrimination can be 

proven only by the use of circumstantial 

evidence. Furthermore, the (NLRB) is free to 

draw any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge 'by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

In Bradley v. Belva CoalCompany, 4 FMSHRC 982, 993 (June 

1982), the Commission stated as follows: 

As we emphasized in Pasula, and recently reemphasized in Chacon, the operator must prove 

that it would have disciplined the miner anyway for the unprotected activity alone. ordinarily, an operator can attempt to demonstrate this by showing, for example, past 

discipline consistent with that meted to the 

alleged discriminatee, the miner's unsatisfactory past work record, prior warning to 

the mineru or personnel rules or practices 

forbidding the conduct question. Our 

function is not ·to pass on the wisdom or 

fairness of such asserted business justifi-

·cations3 but rather only to determine whether 

they are credible and 1 if so, whether they 

would have motivated the particular operator 

as imecL 

SUMMARY OF THE EVIDENCE 

BACKGROUND 

~RED ~o PETERS of Steamboat 9 Coloradou presently works in 

the electrical department of Twentymile Coal Company. He is 

working under temporary status and he has been there for over 

three years. 

Mr. Peters has been a production foreman, a longwall utility 

foreman (hourly), and a shuttle car operator. Prior to his 

employment at Twentymile he was a mine superintendent for Western 

Fuels for over five years as well as a surface superintendent. 

He has also served as a fire boss for Mid-Continent Resources. 

706 
In addition, he has worked in southwestern Pennsylvania. He has 

been a miner since 1971 and is familiar with MSHA's operations. 

In the spring of 1991 Mr. Peters (sometimes called Fred) was 

working as a shuttle car operator for Daryl Firestone, the face 

boss. Other employees included Jim Conner and employees Harrison, Turnipseed, Meckley, Stewart, and Williams. 

In May 1991 they were working between sections as they were 

opening up a new longwall section. 

In June 1991 Mr. Peters operated two different types of 

shuttle cars and in early June 1991 he was operating the No. 4 

shuttle car. 

The No. 4 car is a DC car and the overloads 

kicking out. The heaters would kick on and this 

three times a trip and usually once on a return. 

out, the electrical controls on the car fail and 

brakes automatically engage. The service brakes 

this DC car. In addition to these problems, the 

had loose bolts. 

on the car kept 

would occur 

When it kicks 

the service 

would not hold 

No. 4 car also 

Mr. Peters reported this to Mr. Firestone and the maintenance foreman was told to look into it before the shift started. 

They said they were working on it, but they still used the same 

car. 

Mr. Peters also became concerned about the air in the entry. 

It was necessary to turn off the ventilation tubes. If a door 

was not totally closedv air would recirculate in the face. Mr. 

Peters talked to Mr. Firestone and the mine manager about this. 

They also tried to put buffers behind the fans in an attempt to 

correct the problem. Mr. Peters reported this to ~- Firestone 

because he was his supervisor. These conditions ~ere not corrected before June lOp 1991. 

On a Monday or Tuesday in June Mr. Peters was given a letter 

after he discussed the air recirculation and the brakes with Mr. 

Firestone. Mr. Peters said maybe he should shut the car down and 

Mr. Firestone replied that he should give him an unsatisfactory 

job performance. Mr. Firestone and Mr. Peters discussed the 

matter for approximately three hours and Mr. Peters thought they 

had the problem resolved. Mr. Firestone said that when he 

received a promotion he would take care of Mr. Peters' problems. 

On Monday Mr. Firestone said he had talked to Steve Rosene 

and they were going to give him a letter anyway. He received the 

letter the next day. Management did not ask him his side of the 

issue. Because of that Mr. Peters felt MSHA was his only 

recourse. 

707 
The "second advisory" letter Mr. Peters received was dated 

June 10, 1991. The letter refers to Mr. Peters' "unacceptable 

job performance." The letter was signed by Daryl Firestone and 

acknowledged by Fred Peters on June 11, 1991 (see Exhibit C-1). 

Mr. Peters had never received any first step letter. (The 

letter was stated to be a 11 second advisory.") Mr. Peters 

believes he didn't merit the letter. 

On June 12 Mr. Peters went to work and he noticed the bolts 

were loose in the brakes. He and the section mechanic tightened 

them and he operated the car for two to three hours. About 7:30 

or 8:00 o'clock while going uphill he lost the tram, the brakes, 

and the shuttle car rolled backwards and came to an abrupt stop. 

Mr. Firestone called the maintenance people so they could resume 

production. Mr. Peters didn't think he was injured. He told Mr. 

Firestone he had pulled some muscles in his lower back and they 

returned to mining coal. 

Mr. Peters signed up to work through his scheduled vacation. 

While drilling into the floor he asked the safety representative 

if Mr. Firestone had ever filled out an accident report. They 

could not find such a report, and in Julyu after vacations, Mr. 

Firestone said he had not filled out such a report. The following night Mr. Firestone handed him an accident report form and 

told him to fill it out. 

Mr. Peters went to a doctor and received therapy and an MRI; 

a ruptured disc was later removed. 

C-2 Mr. Petersv handwritten complaint to MSHA. 

Mr. Peters t had been discriminated against because of 

the letter given him by the company (Exhibit C-1). Mr. Peters 

thought the issues had been worked out in the three hour talk 

with Mr. Firestone. 

When I~. Peters made his complaints to Mr. Firestoneu he had 

the company poi1cies in mind and he felt he should tell his 

supervisor of any problems. He did not feel that the company was 

complying with the third paragraph of its safety and health 

policy statement which provides~ 

We hold every employee accountable for 

following all prescribed safe work practices 

and. procedures. No job will be considered so 

urgent--no schedule will be considered so 

rigid that the time cannot be taken to perform the job in a safe manner. 

With ,respect to the shuttle car, the company did not follow 

its policy. However, an operator does not shut down a piece of 

708 
equipment on a production shift and Mr. Peters was told to run 

the shuttle car. 

MSHA investigated Mr. Peters' discrimination claim. MSHA 

found no discrimination and so advised Mr. Peters (Exhibit C-5). 

Mr. Peters felt threatened for his job at the mine. Different 

management people said maybe they could hurt their back and sit 

in the guard shack. 

After disc surgery Mr. Peters returned and initially worked 

for the safety department and later in the electrical department. 

As his back improved, he did more and more underground work and 

he has continued to work in the electrical department. 

Befone the accident occurred Mr. Peters was a full-time 

shuttle car operator and now there is a possibility that he could 

be transferred to a job he could not do. 

Company policy does not" allow overtime when a person works 

on light duty status. In 1992 Mr. Peters' overtime lost wages 

carne to about $2,500. In 1991 he lost approximately $21,406 in 

overtime. In Mr. Peters' view, if Mr. Firestone had heeded his 

complaints an accident would not have occurred. 

Mr. Peters seeks the following relief: Recovery of loss of 

overtime wages, attorney's fees and costs, and assignment to a 

permanent position to a crew he's not on at this time. 

Mr. Peters is more experienced in mining matters than Mr. 

Firestone" 

In J·uly 1990 he received a letter of congratulations from 

·the company" 

In October 1990 the company referred him to an alcohol abuse 

counselor. 

The pivotal portion of this case generally deals with the 

events of April 23 9 1991 9 May 3 9 1991 6 June 6 9 1991 9 June 7 0 

1991u June Su 1991 and June 12 6 1991. 

On the credibility issues surrounding these dates I credit 

the testimony of Daryl Firestone. His testimony is supported by 

almost contemporaneous notes of the events. 

In considering this evidence I have outlined Respondents' 

evidence and footnoted Complainant's evidence. 

According to Mr. Firestone when Fred Peters started on Mr. 

Firestone's crew his performance was good and they got along 

well. (Tr. 225). 

709 
When Mr. Peters began using alcohol his performance started 

to drop. Mr. Firestone discussed Mr. Peters' performance with 

management, mostly the shift supervisor. He also discussed Mr. 

Peters' performance with Mr. Rosene. 

on April 23, 1991 Gary Harrison said Mr. Peters' shuttle car 

had broken down. Gary said that on the last trip Mr. Peters was 

crowding he and Allen on the high side, i.e. he was pushing them 

tight to the rib. (Tr. 238, 239). It sounded like horseplay to 

Mr. Firestone. Gary and Mr. Peters hollered at each other. Gary 

then told Mr. Firestone that Mr. Peters had backed up and slammed 

into the miner as hard as he could with the shuttle car, putting 

the lights out. (Tr. 239). 

At that point Mr. Firestone went back to the shuttle car to 

locate Mr. Peters. Mr. Firestone told Mr. Peters what Gary had 

said. Further, he said Allen (Meckley) had backed him up. Mr. 

Peters got real defensive and.~tarted hollering at Mr. Firestone. 

He told hi~ he was calling him a liar because he was insisting 

his tram had stuck. (Tr. 239). Mr. Firestone was pushing the 

issue that Mr. Peters was crowding Allen and Gary. In addition 1 

they had words. Mr.Firestone and Mr. Peters again had words; 

nothing was resolved and the car was down for 45 minutes. (Tr 

239$ 240). 

Mr. Firestone described how in a small space miners can be 

crowded against the ribs. Mr. Firestone considered Mr. Peters' 

conduct an unsafe act and basic horseplay. He also believed Mr. 

Peters' hollering at him was insubordination. 1 

on May ,. 1991 Gary {Harrison) complained that the shuttle 

car operators ttleren" t helping them move from place <to place,. Mx. 

irestone called a meeting between the miner operators and the 

shuttle car operators. Mr. Firestone flagged Ross and he got 

out. Fred kept going. Upon being flagged again he stopped. Mr. 

Peters got real defensive. He approached the four men: Connerf 

Gary Harrisonu Ross Stewart and Mr. Firestone. Mr. Peters became 

and he was hollering at Mr. Firestone and at Garyo He 

·told Gary that was 09 the laziestu sorriest shuttle car operator 

he'd ever seen his 1 n (Tr. 242). 

I 

During this time Mr. Firestone was trying to calm Fred down. 

At. t.he time he considered taking Fred outside but it was about 

five minutes to quitting time. If Mr. Firestone had taken Mr. 

Mr. Peters testified he was not aware of any complaint. But he admits 

he might have had words with Gary and possibly Mr. Firestone. When Mr. Firestone 

asked him what happened he said the tram stuck on the shuttle car. This was the 

only time they ever talked about the way he operated the shuttle car. (Tr. 49 1 

SO). I am not persuaded by Mr. Peters testimony. It is considerably short of 

unequivocal. 

710 
Peters outside the crew would have been waiting underground for 

him. Also Mr. Peters had calmed down. 

Taking him "outside" means Mr. Firestone would call the 

shift supervisor and tell him why he was taking such action. 

( Tr • 2 4 2 , 2 4 3 ) • 

The next morning 

Firestone didn't feel 

supervisor's office. 2 

I 

Mr. Peters immediately apologized and Mr. 

it was necessary to take Mr. Peters to the 

(Tr. 243) • 

On June 6, 1991, Mr. Firestone and Mr. Peters met to review 

performance appraisals. Such appraisals are reviewed with each 

individual employee and supervisor. The evaluation was for the 

last six months of 1990, Daryl indicated it was a good evaluation 

but for the period in 1991 to June 6, 1991, he had some performance problems with Mr. Peters. Mr. Firestone told Fred his performance (in 1991) was not up.to par and it wasn't acceptable. 

They discussed the hollering incidents. Fred agreed his performance was not up to par. It was a good meeting. 3 (Tr. 243, 

244) • 

The following day 1 June 7, Daryl was shorthanded a roof 

bolter and a new man (Phil) came in to run the bolter. Mr. 

Peters talked to Phil, telling him to run the shuttle car and he 

(Fred Peters) was going to bolt. Mr. Firestone told Mr. Peters 

that Phil was going to bolt, that he wanted him to learn and he 

(Mr. Firestone) was going to train him. (Tr. 245). 

Mr. Firestone didnut say so to Mr. Peters but he wasn't 

going t:.o ~eward n letting him do any job he wanted for that 

dayo'' n 245 0 

Fred was made He said he wasnvt going to run that shuttle 

car and he was aashutting it down because of the brakes o" (Tr. 

¥;r, Peters 1cemembered this incident when Gary complained to Mr. 

Firestone about the shuttle car operators not helping. A meeting was called 

between Rossu Fred, Jim and Gary. 

He further agrees Gary, Daryl and Fred were talking in a heated tone 

of voice but he denies putting Mr. Firestone down in front of the crew. In 

addition he does not remember apologizing. Mr. Peters does not deny the main 

elements of the May 3 events. 

3 Mr. Peters testified he had an attitude problem and it was in direct 

relationship to the way things were being run. (Tr. 52). During that discussion 

Mr. Peters agrees that Mr. Firestone might have told him that his performance was 

not up to par. (Tr. 53). I am not persuaded by Mr. Peters' less than positive 

testimony. 

4 Mr. Peters didn't remember the roof bolter incident. (Tr. 54). 

711 
245). Mr. Firestone said "fine.~ Right at hand was Dean Smith, 

the graveyard mechanic. Mr. Firestone told Dean to go with Mr. 

Peters and to work on the brakes until Mr. Peters was comfortable 

enough to 'run with it. At that point Dean and Fred were working 

on the brakes. (Tr 245, 246). They were bleeding the brakes and 

pulling the equipment forward and backwards. At this time Jim 

(Lewis) told Mr. Peters he was walking behind him. When Jim made 

the statement Mr. Peters started to tram towards him. This 

scared Jim and he hollered for Mr. Peters to watch out. Jim had 

said to turn your lights on in the direction of travel. Mr. 

Peters got real defensive with Jim and hollered back "fuck you." 

Jim walked away and went to Mr. Firestone to complain. 5 

Later that day Mr. Firestone stopped Mr. Peters. Mr. Firestone wasn't real stern. Mr. Peters explained to Mr. Firestone 

the same thing that Jim had discussed. Mr. Firestone asked Mr. 

Peters not to holler or swear profanities at other employees. As 

foreman he didn't. Mr. Peters agreed and he apologized to Jim 

later that day. (Tr. 246, ~47). 

On June 8, 1991, the·crew came into the section following 

the bull gang crew. The bull gang crew hadn't gotten all their 

work done. Mr. Peters' cable wasn't hung and the arc bar wasn't 

up. Mr. Peters hung the cable anchor but couldn't make one trip 

because he was running over his cable. Mr. Firestone asked Mr. 

Peters if they were going to have to drop the anchor and rehang 

the cable. Mr. Peters said he wasn't going to do it because he 

had just finished it. 6 

Fred was aggravated. Mr. Firestone told Mr. Peters the work 

had to be done. Mr. Firestone discussed taking him 11 outside. Dv 

, is~ Mr. Peters Mr. Firestone, and Clyde Bower~ 

continued working hanging the cable. Mr. Peters complained 

5 Mr. Peters recalled a ~near missn when Jim came around a corner. Mr. 

Peters ·told him he needed to watch where he was going. He and Jim had an 

argument and he possibly told Jim to ~ruck off.w (Tr. 55). 

Mr. Peters denies that Mr. Firestone asked him to hang cable because it 

hadn't been hung by the down shift. (Tr. 56). Mr. Peters said he didn't have 

enough cable. He told Mr. Firestone that if he'd anchor his cable back there I'm 

going to run over it. Mr. Firestone said do it anyway. So he reanchored his 

cable and made one try and Mr. Firestone said you are running over your cable. 

Mr. Firestone told him to move the cable back. When asked to move the cable back 

for the second time he did not refuse to move it but he might have said "I don't 

want to." (Tr. 56). Mr. Peters did move the cable; he was upset because he knew 

he'd be running over his cable where he was told to locate it. (Tr. 56, 57). 

I credit Mr. Firestone's version of the occurrence. Mr. Peters somewhat 

concedes he refused to rehang the cable. This could be considered to be an act 

of insubordination to the face boss. His continuing complaints about the down 

shift confirm that the downshift had not hung the cable. 

712 
constantly about the downshift screwing up. Mr. Firestone said 

we get paid for ten hours, let's continue to work. (Tr. 248). 

Mr. Peters kept arguing. Mr. Firestone got fed up. Mr. 

Firestone said they were going outside to talk to a shift supervisor. Mr. Peters and Mr. Firestone and superintendent Bob 

Deirkes went into the kitchen. They discussed Mr. Peters' previous performances. Mr. Firestone told Bob he was instituting a 

second advisory step and if that didn't do any good then a third 

step. (Tr. 249). 

Mr. Peters agreed he was not performing but it was because 

of the morale of the hourly employees. He was complaining that 

the downshift crew was not doing their jobs; likewise, as to the 

supervisors. Mr. Firestone said if this would be documented it 

was a second advisory. Bob Deirkes and Mr. Peters then had a 

discussion. (Tr. 250). 

Mr. Firestone went back up to the 

followed and said they needed to talk. 

three hours about everything including 

(Tr. 250) . 

section. Mr. Peters 

They talked for two or 

air to bull gang problems. 

Mr. Firestone was completely frustrated due to the time he 

had been spending with Mr. Peters. They talked for three or four 

hours but didn't accomplish anything except they weren't hollering at each other when it was over. (Tr. 250). Both men agreed 

they could do better at communication. Mr. Peters didn't want to 

go to the second step. Mr. Firestone didn't give Mr. Peters any 

indication the second step letter wasnFt going to happen. (Tr. 

25) 0 

On June 9 Mr. called Mr. Firestone at home and wanted 

to know if he had talked to Steve Rosene. (Tr. 252, 253). 

Mro Firestone prepared a rough draft the second-step 

letter. He and Steve Rosene and Bob Deirkes went over it. (Tr. 

253) 0 

I 

The second advisory letterq dated June 10 6 199lq was 

received by Mr. Peters on June 11 6 1991. (Ex. C-1). 

The parties presented evidence of events that occurred on 

June 12u 1991. On that occasion bolts were tightened on the 

shuttle car brakes. Four bolts held the rotary in place. The 

mechanic said the rotor needed to be changed out. Mr. Peters did 

not know the equipment would break. When the part broke, he was 

going upgrade and the car then rolled backwards. He did not hit 

the panic bar on the shuttle car. As a result of the accident, 

he did not feel he had a serious injury. 

713 
Mr. Firestone was in the area but did not see the parts 

break on No. 4 shuttle car. Mr. Peters told Mr. Firestone that 

he had pulled a muscle. 

on June 12 Mr. Peters told Mr. Deirkes that he wanted off 

the shuttle car; he didn't remember telling him that he had hurt 

his back. Mr. Peters did not know if he had received a first 

step letter. 

Since his back injury, Mr. Peters has received hourly wage 

increases from Twentymile when there has been a general hourly 

increase. 

Mr. Peters has not been told by Twentymile that if equipment 

is unsafe he is not to run it. 

In 1991 there was a period when he did not work because of 

back surgery. He also received Workmen's Compensation. 

FRANK PAVLISICK of Paonia, Colorado, is employed by the 

Western Coal Company as a mechanic. Mr. Pavlisick was employed 

by Twentymile from February 1985 to July 1991 as a maintenance 

foreman. He and Mr. Peters were on the same crew. 

On June 12, 1991, Mr. Pavlisick was called to repair shuttle 

car No. 4. He found the side was broken. Also, the drive line 

was broken. The witness was familiar with the particular shuttle 

car. It was an original in 1985. 

Shuttle car No. 4 was not in continuous use but he had 

received complaints about the brakes not holding. The resistors 

had been bypassed shuttle car No. 4 and this would cause the 

:::ront of ·the shuttle car to rise up when i~c started forward. He 

·testif t:ha:t when an operator turns in a report that a piece of 

equipment is defectiveu the equipment goes to the maintenance 

department. The maintenance department fixes it with the necessary parts. 

car was used and worn out and the brakes had not ever 

been totally replaced. To ful repair the brakesu you need time 

to get the necessary parts and such a repair could be made in ten 

hours. 

As maintenance foremanu failure to keep the brakes in repair 

could cause loss of control of the car when the brakes failed. 

Mr. Pavlisick worked with Mr. Peters until he terminated 

with the company. He had never seen Mr. Peters operating the 

shuttle car in any way that might adversely affect the brakes. 

The equipment should do what is required of it. It is possible 

to tram with the brakes engaged and that will damage them. 

714 
Mr. Pavlisick would take Mr. Peters on his crew at any time. 

Mr. Pavlisick believed there was friction between Mr. Firestone 

and Mr. Peters. In his opinion, it was a po~er struggle and Mr. 

Firestone felt threatened by Mr. Peters. 

Mr. Pavlisick had never observed Mr. Peters' conduct inappropriate or against safety. He was not aware Mr. Peters had 

complained about the brakes. 

In the chain of command, Mr. Firestone could remove the 

shuttle car from service and have it repaired. 

Mr. Pavlisick did not see any conduct on the part of Mr. 

Peters to justify any reprimand of Mr. Peters. 

In Mr. Pavlisick's opinion, the cars should have been taken 

out of service or rebuilt; both of the shuttle cars were unsafe 

to run. 

As maintenance foreman, Mr. Pavlisick's responsibility was 

to repair cars that break down during production. 

Mr. Pavlisick examined broken parts in the shuttle car. The 

metal break had egg-shaped holes. That's why he directed the new 

parts be installed. Mr. Pavlisick did not know if the DC car was 

designed to hold itself back. At times these cars ran 20 hours 

with four hours' maintenance. Mr. Peters had worked for Mr. 

Pavlisick but not on a full-time basis and he had never worked 

with Mr9 Firestone and Mr. Peters for any length of time. 

On June 12 the rotor part broke. If Mr. Firestone had seen 

loose bolts 9 he wouldnPt know that they would break on that 

particular 

DOUGLAS w. OGDEN of DeBeque, Colorado, is now a section 

mechanic for Powderburn Coal Company. He left Twentymile in 

1992o He had started there as a downshift continuous miner 

mechanic and transferred to the electrical department. He has 

been mining since 1978. 

In June 1991 he worked for Frank Pavlisick. On June 12 he 

was advised they needed help repairing a shuttle car in two-left. 

When he arrived he learned that the shuttle car was the one that 

Mr. Peters had been running. The brakes and traction were out 

and it was necessary to crawl under the equipment and work under 

it. Mr. Ogden explained in detail how the shuttle car brakes and 

traction were restored. 

The supervisors knew about the problem on the shuttle cars 

as it kept coming up on conversation. 

715 
It was not part of Mr. Ogden's job function to analyze what 

needed to be done on the shuttle cars. He had talked to Mr. 

Peters socially and had seen him in the section. 

After June 12, 1991, the shuttle car was returned to service 

when it was repaired. Mr. Ogden was never fully in charge of 

pulling down and repairing the brakes. 

The bolt holes that were oblong were replaced. An individual would not notice if the bolt holes were tight. 

Mr. Pavlisick had the authority to take defective equipment 

out of service. 

After the repairs were effective, Mr. Ogden thought the 

brakes were operational but he believed some risk existed. They 

bled the brakes after tightening the bolts. 

They would also tram the brakes and if the brakes were 

spongy, they would bleed them. As to shuttle car No. 4, they 

would report their repairs back to Frank Pavlisick and in a few 

days there would again be reports of loose bolts. 

DAN GAGON of Craig, Colorado, has been at Twentymile since 

March 1984 on the longwall bull gang. 

In June 1991 he was a shuttle car operator and he became 

acquainted with Mr. Peters. He operated the shuttle car No. 4 on 

a different shift. 

to June 12~ 1991, shuttle car No. 4 had bad brakes and 

he reported condition to the supervisor. 

On June 12 he shut the car down because of the brakes and he 

tightened the bolts. He was stopping in a safe distance but the 

brakes were mushy. He had the same problems both before and 

after the repairs. on June 12 he parked shuttle car No. 4 and 

l:'efused to run The mechanic then ·tightened the bolts 

and brake rot.ors. lYI.r. Gagon also talked to the shift supervisor and the mechanics on the down shift. 

After June 12 0 1991 8 the brake rotors were repaired and they 

got a little better. 

Mr. Gagon has no knowledge of the June 12 accident involving 

Mr. Peters. He has run shuttle car No. 4 and No. 5 off and on 

since 1984 and the brake rotor broke three times while he was 

operating the equipment. For the last two or three years he has 

lost the brakes on three occasions. 

ROSS STEWART, Craig, colorado, is now a shuttle car operator. In 1991 he was on the same crew with Mr. Peters. 

716 
Mr. Firestone was his supervisor. 

In June 1991 Mr. Stewart drove No. 4 or No. 5 shuttle car. 

He didn't see the June 12 accident involving the shuttle car but 

he was in the section. He reported the brakes on his car when 

they were malfunctioning. These reports were made to the foreman 

or the mechanic. 

There was a time when Mr. Firestone and Mr. Peters were cobosses wi~ Mr. Stewart. Mr. Stewart believed there was some 

friction between them. 

Mr. Peters was a good worker. 

Mr. Stewart believed he was familiar with the company criteria for a step 1 or Step 2 reprimand. These included unsafe 

acts, horseplay, unsafe job conditions, and lack of concern for 

safety. 

Mr. Stewart agreed that on one occasion Mr. Peters had run 

into his shuttle car, and he also had struck his once or twice. 

Mr. Stewart complained about Mr. Peters having alcohol on 

his breath. 

At a meeting of the shuttle car operators, Mr. Firestone and 

Mr. Peters yelled, and Mr. Peters criticized Mr. Harrison's performance and some words were said. 

In May and June 1991 Mr. Peters complained about the down 

not doing its share of the work. Alcohol was not involved 

manner in the or June 1991 incidents. 

RESPONDENTS' EVIDENCE 

DARLY FIRESTONE's testimony has been previously reviewed. 

STEVE ROSENE has been in the employ of Twentymile Coal 

Company since October 1987. He is responsible for the Human 

Resources activities. 

He has been involved in disciplinary matters for Mr. Peters 

since April 1989. He was involved in ten formal contacts, 

including a referral for alcohol abuse in 1989-1990 as well as 

overall job performance in 1990 and 1991. 

Mr. Peters was issued a Step 2 advisory on June 11, 1991. 

Mr. Rosene is familiar with the company's corrective action 

program. The program is a step program to identify performance 

issues which the company tries to resolve. 

717 
The steps consist of what is called a first reminder which 

takes place between the supervisor and the employee. If there's 

no change ·in the situation, there is a second reminder or advisory step. This involves formal documentation, letters and is 

structured towards improvements. It goes in the performance 

file. If there is no improvement, then there is a career discussion advisory where he meets with the employee and summarizes 

the problem. The employee is sent home for one day with pay and 

the company seeks a commitment by the employee to remedy whatever 

may be the problem. 

Exhibit R-7 outlines the corrective action counseling guidelines that are followed. 

There is not necessarily an initial step program; the 

company can go immediately to any one of the levels. The gambit 

of performance issues include fighting, disruptive activities, 

work quality, work quantity,-and damaging company equipment. 

Miners have been terminated under this program. Mr. Rosene becomes involved in the second advisory level. 

Mr. Firestone came to him concerning Mr. Peters. Mr. Rosene 

had counseled Mr. Peters on work performance, disruption with 

crew 9 and co-worker complaints. 

Mr. Rosene was not aware of the air recirculation and shuttle car complaints. The fact that Mr. Peters had made safety 

complaints did not enter the conversation when the second advisory took place. 

Mro Rosene was aware of Mro Peters' back surgery and when he 

:::-e·turned dt.o 7work 9 he tvas on restricted duty and the company 

required a doctor's reporto When Mro Peters returnedv he joined 

the electrical group 9 working mostly on the surface. Mr. Peters 

has a permanent restriction, namely a so-pound lifting limit. In 

view of Mr. Peters' restriction, he has not returned to work in 

full capacityr although he works full-time in the electrical 

department doing day-to-day duties and assisting in the maintenance of the electrical equipment. Mr. Peters requested this 

assignment and it was appropriate under the circumstances. 

Twentymile has two departmentsu maintenance and productionu 

and people are rotated in various subdepartments for trainingo 

In 1991 and 1992 overtime work at Twentymile was handled 

through a sign-up system. The company posts a sheet and any 

miner can .sign up. If he does, he's expected to show up for the 

work. Mr. Peters could sign up for electrical work. In the last 

two years the company's overtime percentage has been high. 

Twentymile has been attempting to cut down its overtime and 

limit it 'to one overtime shift per employee per month. They also 

718 
hired additional miners to cut back on excessive overtime. The 

overtime percentage is over 10 percent and this was necessary due 

to two longwall moves. 

Mr. Peters accepted a lead supervisory position and employees in this category are paid an additional one and a half hours 

at time and a half. From December 1989 to July 1990, this was 

his work status. 

When Mr. Peters first returned to work, the return-to-work 

program necessarily restricts his duty and he is limited to 40 

hours per week. 

Twentymile has a complaint procedure. It's a step procedure. The employee first addresses the problem with his supervisor and the employee learns of this when he is a new hire. Mr. 

Peters would have learned of it at that time. 

The second advisory letter of June 10, 1991, given to Mr. 

Peters recites "he (Peters) was not up to standard." The given 

behavior of Mr. Peters was not as clear as Mr. Rosene would like 

it to be, but the specific behavior by Mr. Peters was that he was 

not doing his assigned work; his manner of doing work; his 

request that miner cable be hung; his unacceptable performance; 

his foul language; and his insubordination. These were discussed 

with Mr. Firestone and Jody Hampton. Mr. Firestone mentioned the 

recirculating air but he did not mention the shuttle car. 

The company had no complaints with Mr. Peters about fighting 

or about absenteeism. 

Mr" Rosene did not. ~<.now what manner Mr. Peters was operat the shuttle car . . 

Peters wasn't given the second advisory letter because 

recirculation complaints nor for the shuttle car 

Rosene was not aware of Mro Petersu MSHA complaint (Ex. 

C-2) after MSHA investigated his complaint. When he talked 

to Mr. Firestone there was some mention of the air in the section. Mr. Rosene did not discuss with Mr. Peters his side of the 

storyv and his involvement went back to prior evaluations including the mandatory referral and Mr. Peters' work performance. 

Mr. Rosene did not assume Mr. Peters was at fault and he 

talked to other supervisors and mine management. He did not talk 

to Messrs. Stewart or Gagan. He talked to Conner but didn't 

discuss anything about the brakes. He first learned about 

shuttle car No. 4 when Mr. Peters filed his complaint with MSHA 

at the end of the June 1991. No report was filed by Mr. Peters 

after the accident. The accident involving the shuttle car 

719 
losing its brakes was serious and it attracted attention when the 

shuttle car shut down. On June 12 nothing was reported to Mr. 

Rosene. 

After his accident Mr. Peters had surgery on his back and 

filed a Workmen's Compensation claim. 

On June 12, 1991, the company filed a form entitled "Final 

Admission of Liability" with the Colorado Department of Labor 

and, in particular, with the Division of Workmen's Compensation 

as it related to Mr. Peters. (Ex. C-7). 

Mr. Rosene did not talk to Mr. Peters after he learned about 

shuttle car No. 4 because he felt it was inappropriate to discuss 

the matter with Mr. Peters while MSHA was investigating it. 

At a later time he asked Mr. Firestone if shuttle car No. 4 

or the air complaints resulteq in any action, and he stated they 

did not. 

COMPLAINANT'S REBUTTAL 

Mr. P.eters, in rebuttal, indicated that he didn't believe 

there was an emergency bar on the shuttle car on June 12, 1991. 

Between June 8 and the step letter of June 11, Mr. Peters 

believed he had called Mr. Stuckey and stated that he had concerns over safety issues. He stated the mine was being run like 

Mid-Continent Resources when he worked there in 1977-1981. He 

had told Mr. Firestone about the air problems which were occurring" Mr. Firestone said he would take care of ity but other 

concerns were not being taken care of. 

The following morning Mr. Peters was driving the mantrap and 

Mr. Firestone said it was a performance problem for him {Peters). 

He also said Mr. Peters' attitude was real bad and that he wasn't 

pulling his share. Mr. Peters agreed he wasn't happy about the 

recirculation and the brakes and the kicking heaters some 30 to 

40 times a shiftt this would engage the emergency brakes. 

Prior to the evaluation in June 1991u all previous evaluations of Mr. Peters had been outstanding or excellent. There had 

been no alcohol recurrence. The last one was in october 1990. 

Having considered the hearing evidence and the record as a 

whole, it 'is appropriate to enter specific findings of facts. 

The preponderance of the substantial, reliable and probative 

evidence establishes the following: 

720 
FINDINGS OF FACT 

1. Fred L. Peters is a full-time employee of Twentymile 

Coal Company (Twentymile) in the electrical department as a mine 

electrician. (Tr. 15, 87). 

2. Mr. Peters has held several mine management positions. 

(Tr. 48) • 

3. In May 1989 Mr. Peters was referred by Twentyrnile to 

counseling for alcohol abuse. In July 1990 Twentyrnile congratulated Mr. Peters on completion of his alcohol abuse counseling. 

(Tr. 48) • 

4. On September 20, 1990 Daryl Firestone and Jody Hampton 

counseled Mr. Peters about corning to work under the influence of 

alcohol. (Tr. 49). 

5. In October, 1990 Mr.·~~ters was again referred by 

Twentyrnile to counseling for drug abuse. (Tr. 49}. 

6. Daryl Firestone was Mr. Peters' supervisor in the spring 

of 1991. (Tr. 18). Mr. Peters had been temporary foreman of the 

same crew before Daryl Firestone. (Tr. 49). 

7. In the spring of 1991 Mr. Peters was operating two 

shuttle cars, including the No. 4 shuttle car. (Tr. 20). 

8. On June 10, 1991 Mr. Peters was issued a second step 

discipline letter under Twentymile's corrective action counseling 

program. (Tr. 24, Ex. C-1). 

~. Mr. Peters filed his complaint of discrimination on 

June 15, 1991, because he felt it was the only way to get the 

second step discipline letter removed from his file. (Tr. 36, 

Ex. C-2). 

10. As of May 28, 1992, when Mr. Peters filed answers to 

interrogatories the only discriminatory act which Mr. Peters was 

complaining about was receipt of the second step letter. (Ex. 

R-6). 

11. Mr. Peters served on Mr. Firestonevs continuous miner 

crew. (Tr. 224). 

12. There are several events which preceded issuance of the 

second step disciplinary letter, each of which would constitute 

sufficient business justification for the letter. 

13. On April 23, 1991, Mr. Peters was crowding the continuous miner operators with his shuttle car, he was pushing them 

tight to the rib. One of the miner operators, Gary Harrison, had 

721 
words with Mr. Peters about the crowding. Mr. Peters then backed 

up and slammed his shuttle car into the miner, breaking the 

lights on the shuttle car. (Tr. 239, Ex. R-8). When confronted 

on this matter, Mr. Peters insisted that his tram had stuck. Mr. 

Firestone pressed the issue of Mr. Peters crowding the miner 

operators. Mr. Peters and Mr. Firestone had words. (Tr. 239-

240, Ex. R-8). By "crowding" the miner operators (who stand 

behind the miner and operate it by remote controls) Mr. Peters 

was intentionally pushing them towards the rib. (Tr. 240). Such 

conduct is unsafe. (Tr. 240). 

14. Mr. Peters admits that on April 23, 1991, he ran his 

shuttle car into the miner and broke the lights on his shuttle 

car. (Tr.' 49). 

15. Mr. Peters admits that on April 23, 1991, he had words 

with Daryl Firestone about the manner in which Mr. Peters was 

operating his shuttle car. (~;r. 50). 

16. Mr. Peters admits that on the day he ran his shuttle car 

into the miner (April 23, 1991) he might have had words with Gary 

Harrison about crowding Gary with the shuttle car. (Tr. 50). 

17. on May 3, 1991, Gary Harrison, a continuous miner 

operator, complained to Mr. Firestone that the shuttle car 

operators were not helping move the cable for the continuous 

miner. As a result, Mr. Firestone called a meeting of the two 

shuttle car operators and two miner operators and himself. (Tr. 

24, Ex. R-9). When Mr. Firestone advised Mr. Peters that the 

meeting was about helping the miner operators, Mr. Peters became 

very defensive and began yelling at Mrc Firestone as he 

approached the meeting. Mr. Peters yelled at Mrc Firestone and 

had words with Gary Harrison. He told Mr. Harrison that he was 

the laziestv sorriest shuttle car operator he had ever seen. Mr. 

Peters was insubordinate to Mr. Firestone and he was abusive and 

derogatory towards Mr. Harrison. (Tr. 156, 242, Ex. R-9). 

18. Mr. Peters admits that on May 3~ 1991v he was involved 

a heated argument with Daryl Firestone and Gary Harrison about 

the shutt.le car operators 6 unwillingness to assist the continuous 

miner operators in moving the trailing cable for the miner. (Tr. 

50-52). 

19. On June 6u 1991 1 Mr. Firestone gave Mr. Peters his 

performance evaluation for the last 6 months of 1990. (Tr. 244). 

During the discussion concerning that performance evaluation, Mr. 

Firestone told Mr. Peters that, although the evaluation for the 

last 6 months of 1990 was good, Mr. Peters' performance in 1991 

was not satisfactory. (Tr. 244, Ex. R-10). Mr. Peters agreed 

that his performance was not up to par. (Tr. 244, Ex. R-10). 

722 
20. Mr. Peters admits that on June 6, 1991, Mr. Firestone 

may have told him that his performance was not up to par. 

{Tr. 53) . , 

21. On June 7, 1991, at the beginning of the shift, 

Mr. Peters wanted to run the roof bolter because the regular roof 

bolter was absent. Mr. Firestone, however, directed Mr. Peters 

to run his shuttle car and instructed another employee to run the 

roof bolter. Mr. Peters became angry because he was not permitted to run the roof bolter. He then threatened to shut down his 

shuttle car because of the brakes. At that time, the graveyard 

mechanic happened to be in the area and Mr. Firestone sent the 

mechanic with Mr. Peters to make sure the shuttle car brakes were 

working properly. While the mechanic and Mr. Peters were bleeding the brakes, Mr. Peters was tramming the car forward and 

backward. Jim Lewis told Mr. Peters that he was walking behind 

the shuttle car, but Mr. Peters trammed toward Mr. Lewis without 

turning on the lights in the-direction of travel and scared 

Mr. Lewis. Mr. Lewis told Mr. Peters to turn on the lights in 

the direction of travel and Mr. Peters responded by swearing at 

Mr. Lewis. Mr. Firestone met with Mr. Peters and asked 

Mr. Peters not to swear at his fellow workers. (Tr. 53, 55, 246-

247v Ex. R-11). Tramming towards Mr. Lewis was unsafe because 

Mr. Peters did not have his lights on in the direction of travel. 

22. On June 8, 1991, Mr. Firestone's shift and crew followed 

the bull gang crew. The bull gang had not finished its work, so 

the cable for Mr. Peters' shuttle car needed to be hung and the 

anchor needed to be moved. Mr. Peters and Mr. Firestone discussed the possibility that the cable may be in the way where 

Mr. Firestone wanted it hung, but Mr. Firestone decided to bang 

there because otherwise they would have to piggyback (loads of 

coal . Tr. 247 . Mr. Peters hung the cable as instructed and 

attempted to haul coal, but the shuttle car was running over the 

cable. Therefore, Mr. Firestone asked Mr. Peters to rehang the 

cable at another location and Mr. Peters refused. (Tr. 248). 

23. Subsequentlyg Mr. Peters helped rehang the cableu but be 

complained the whole time about the down shift not getting its 

work done. Mr. Peters kept arguing with Mr. Firestone about the 

down shift not doing its job so Mr. Firestone decided to take 

Mr. Peters talk with Dennis Bowensv a shift superintendent. 

Howeveru Mr. Deirkes 0 another shift superintendentu came by and 

they had a meeting with him. (Tr. 248-249). 

24. Mr. Peters admits that on June 8 0 1991, he may have refused a directive from Mr. Firestone to relocate the cable for 

Mr. Peters' shuttle car. (Tr. 56). Mr. Peters also admits that 

he had an attitude problem in June, 1991. (Tr. 52). 

25. While on Mr. Firestone's crew, Mr. Peters' performance 

level began to drop during the time when Mr. Peters was using 

723 
alcohol. (Tr. 226). He was counseled by Mr. Firestone and Jody 

Hampton for corning to work under the influence of alcohol in 

September, 1990. (Tr. 49). 

26. Mr. Peters was referred to mandatory counseling for 

alcohol abuse in 1989 and again in 1990. (Tr. 170) • 

• 

27. Mr. Peters' alcohol problem was part of his performance 

problem. Part of the performance evaluation given to him on 

June 6, 1991, referred to his previous alcohol abuse problems. 

(Tr. 267) • 

28. Mr. Ross Stewart has complained to Mr. Firestone about 

Mr. Peters coming to work with alcohol on his breath. (Tr. 155). 

29. The way Mr. Peters operated his shuttle car was abusive 

to himself and the car. Other employees, including Mr. Peters' 

witness, Mr. Pavlisick, told,Mr. Firestone that Mr. Peters had to 

slow down because he was going to hurt himself or damage the 

shuttle car. Mr. Firestone recalls one location where the road 

was rough and recalls seeing Mr. Peters really bouncing around in 

his shuttle car. This was before June 12, 1991. Mechanics also 

complained about Mr. Peters free wheeling the AC shuttle cars. 

(Tr. 259) . 

30. Mr. Peters' manner of operating his shuttle car was 

causing the car to be damaged. (Tr. 194). 

31. Mr. Peters has a reputation for running his shuttle car 

hard. (Tr. 155). 

32. Mr. Peters admits that Jody Hampton talked to him about 

taking better care of the equipment. (Tr. 90). 

33. Mr. Stewart is aware of one instance where Mr. Peters 

crowded a continuous miner operator with his shuttle car; 

Mr. Stewart considered that to be an unsafe act. (Tr. 157). 

34. On one occasion Mr. Peters rammed his shuttle car into 

Mr. Stewart 0 s shuttle car. (Tr. 155). 

35. Mr. Peters admits that he often became angry and complained to Mr. Firestone about the down shift not doing their job 

when Mr. Firestone's crew had to finish work which the down shift 

did not complete. (Tr. 57). 

36. Mr. Peters complained about the down shift not doing its 

work and he complained if he had to do work that the down shift 

had not completed. (Tr. 158). 

37. ~· Peters' poor work performance included, insubordination, yelling at Mr. Firestone, yelling at his co-workers, 

724 
refusing to do work which he was directed to do, and not helping 

move the continuous miner from place to place. (Tr. 280). 

38. Mr. Peters' failure to help move the continuous miner 

from place to place was a daily occurrence. (Tr. 280). 

39. During their discussion on June 8, 1991, Mr. Firestone 

advised Mr. Peters that Mr. Firestone was going to issue a second 

step disciplinary letter to Mr. Peters. (Tr. 250). 

40. On June 8, 1991, Mr. Peters threatened Mr. Firestone. 

After Mr. Firestone told Mr. Peters he was going to be issued a 

second step letter, Mr. Peters said he had notes on Mr. Firestone 

and other supervisors and that if he was going to lose his job, 

Mr. Firestone and other supervisors would also. (Tr. 252). 

41. On June 8, 1991, Mr. Peters attempted to convince 

Mr. Firestone not to issue a second step disciplinary letter and 

tried to convince Mr. Fireston~ to tell Mr. Rosene that they 

(Firestone and Peters) had worked out the problem with 

Mr. Peters' performance. (Tr. 251). 

42. Shortly after June 8, 1991, Mr. Peters called Mr. Firestone at home to ask if Mr. Firestone had talked to Mr. Rosene 

and to attempt to persuade Mr. Firestone not to issue the second 

step disciplinary letter. (Tr. 252). Mr. Firestone believed 

Mr. Peters did not want the second step letter issued because Mr. 

Peters was trying to get a truck driver job on the surface at the 

mine. (Tr. 252-253). 

43. Mr. Rosene is the Human Resources Manager for Twentymile 

Company. He had that position since October 1968. Mr. 

Rosene has 4 years experience coal and noncoal mines in 

hour and management positions. {Tr. 168). 

44. Twentymile Coal Company has a corrective action counseling program which was implemented in 1988. (Tr. 171, Ex. R-7). 

45. The corrective action counsel program has three 

steps a first reminder; a second reminder, and then a career 

discussion advisory. {Tr. 171v Ex. R-7). 

46. A £irst reminder is a confidential meeting between a 

supervisor and an employee to identify performance problems. 

(Tr. 172, Ex. R-7). 

47. A second reminder (or second step advisory} is more 

serious and it includes a letter to identify problems and means 

of improving. (Tr. 172, Ex. R-7). 

48. A career discussion (or third step) advisory identifies 

performance issues and the affected employee is sent home for a 

725 
day with pay to decide whether or not he or she can make a commitment to the guidelines, policies and procedures of Twentymile. 

If the employee makes such a commitment, a joint action plan is 

formulated. If the employee succeeds in following the plan, the 

employment relationship continues. If not, the employee is terminated. (Tr. 173, Ex. R-7}. 

49. Any appropriate step of the corrective action counseling 

program may be used at anytime, depending upon the severity of 

the performance issues involved. (Tr. 175, Ex. R-7). 

50. Mr. Firestone was frustrated with the amount of time he 

was spending concerning performance problems with Mr. Peters. 

(Tr. 250). 

51. Mr. Peters was issued a second step advisory letter 

because his job performance was inadequate, he was disruptive on 

his crew, his co-workers were complaining about the way he 

treated them, he refused to hang his shuttle car cable when told 

to do so by his foreman, he refused to help the continuous miner 

crew move the miner, and for unsafe conduct. (Tr. 177, 192, 196, 

280) . 

52. ~he second step disciplinary letter was based on concerns about Mr. Peters' performance since April 1991. (Tr. 199). 

53. Mr. Peters signed the acknowledgment on the second step 

disciplinary letter (Ex. C-1), which letter specifically states 

that Mr. Peters agreed that his performance was not up to 

standard. (Tr. 60). 

54. Mr. Peters admits that he tried <co persuade Mr. Firestone that it. would not be fair to give Mr. Peters a second step 

disciplinary letter. (Tr. 59). 

55. Mr. Firestone's decision to issue the second step letter 

to Mr. Peters was not motivated in any way by Mr. Petersf complaints about ventilation or the condition of shuttle car. 

Tr o 77 J 19 6 , 2 2 1 o 2 61) • 

56. Mr. Peters talked to Mr. Firestone and the mine manager 

about ventilation issues at various times. (Tr. 22-23}. 

57. When Mr. Peters complained to Mr. Firestone about ventilation in the mineu Mro Firestone would take measurements$ If 

they needed more air, Mro Firestone would notify one of the shift 

supervisors who would make arrangements for the graveyard shift 

to provide more airo (Tr. 227). 

58. If there was recirculation of air, Mr. Firestone would 

shut down production and repair what needed to be done. (Tr. 

227) • 

726 
59. Mr. Peters admits that when he identified ventilation 

problems to his supervisors, various actions were taken to 

correct them. (Tr. 23). 

60. The No. 4 shuttle car is the one which Mr. Peters was 

operating on June 12, 1991, and generally during the time period 

in question. (Tr. 65). 

61. The No. 4 shuttle car was also operated by another 

operator, Dan Gagan, on a different shift. (Tr. 66, 138). 

62. Mr. Firestone would often run the No. 4 shuttle car 

during Mr. Peters' lunch breaks. (Tr. 65). 

63. During May and June, 1991, Mr. Firestone ran Mr. Peters' 

shuttle car for approximately one hour every other day. (Tr. 

229) • 

64. When Mr. Peters complained to Mr. Firestone about the 

brakes on Mr. Peters' shuttle car, Mr. Firestone and Mr. Peters 

would determine if the car was safe to continue operation. If 

something needed to be done immediately, it was done. If the 

maintenance or repair could wait, it was reported to the down 

shift. (Tr. 228). This was standard practice. (Tr. 103, 151). 

65. Mr. Firestone relied upon the maintenance foreman to 

repair Mr. Peters' shuttle car. (Tr. 277). 

66. During May and June, 1991, the brakes on Mr. Peters 1 

shuttle car were adequate to stop the loaded car on an incline. 

Howeveru the brakes were not as good as the brakes on the newer 

AC cars. (Tr. 230 . 

67. When the brakes failed on Mr. v shuttle car on 

June 12, 1991u it was because a brake rotor broke. (Tr. 61). 

68. is common for a brake rotor to break on shuttle 

cars such as shuttle car No. "-L (Tr. 13 2 146 v 256) • A typical 

dail v walk around inspect of ~che shuttle car would not have 

revealed that the brake rotor was about to break. (Tr. 63Q 132 6 

145) 0 

69. Mr. Dan Gagan operated the No. 4 shuttle car on a 

different crew from Mr. Peterse (Tr. 138). 

70. On June 12u 1991, during the day shift, Mr. Gagan had 

his shift mechanic check the brakes on the No. 4 shuttle car. 

(Tr. 139) • 

71. On occasion, Mr. Gagon shut down the No. 4 car during 

his shift to check the brakes. He also reported problems with 

the brakes to his supervisor and to maintenance. (Tr. 138). 

727 
There was no testimony that Mr. Gagon was disciplined or of any 

hostility towards him for such actions. 

72. Mr. Ross Stewart is a shuttle car operator for Twentymile Coal Company. He drove the other shuttle car on Mr. Peters' 

crew. (Tr. 148). 

73. At times Mr. Stewart shut his shuttle car down when he 

felt it was not safe to operate. (Tr. 150). There was no testimony of any discipline or hostility towards Mr. Stewart for such 

conduct. 

74. Mr. Frank Pavlisick was employed by Twentymile Coal 

Company from 1985 to July, 1992. In June 1991, he was a maintenance foreman. (Tr. 99) 

75. Mr. Pavlisick's crew was not the regular crew 

worked on the No. 4 shuttle car. (Tr. 115-116, 119). 

only worked on it if it broke down during a production 

that 

His crew 

shift. 

( Tr. 116) . - ·· 

76. Generally, if Mr. Firestone reported problems with the 

brakes on the No. 4 shuttle car, they would have been fixed by a 

different maintenance crew than Mr. Pavlisick's crew. (Tr. 119). 

77. When Mr. Pavlisick's crew did work on the No. 4 shuttle 

car, it was safe to operate when he released it for production 

work. (Tr. 116). 

78. According to Mr. Pavlisick, no one could have known that 

the brake rotor was going to break on the day it broke. (Tr. 

122) 0 

79o Mr. Pavlisick does not know the No. 4 shuttle car was 

designed and constructed so the motor would hold it back going 

down hills. In any event, the car still had brakes to hold it 

back on hills. (Tr. 118). 

80. Mr. Pavlisickv as a maintenance foreman, had authority ~o take the No. 4 shuttle car out of service if he thought it was 

unsafe. (,Tro 134). 

81. Mr. Pavlisick admitted that he is 

regard to electrical matters. (Tr. 101). 

ions he gave about the electrical circuits 

car cannot be given any weight. 

not an expert with 

Therefore, the opinof the No. 4 shuttle 

82. Mr. Doug Ogden was on Mr. Pavlisick's downshift continuous miner maintenance crew in June, 1991. (Tr. 125). 

728 
83. Mr. Ogden is aware that in June 1991, the brakes of the 

shuttle cars were checked by maintenance people on the production 

shifts and on the maintenance shifts. (Tr. 143). 

84. When Mr. Ogden worked on the brakes on the No. 4 shuttle 

car he would check them to make sure they worked before he would 

release the car. (Tr. 133). 

85. Mr. Ogden's crew had tightened the bolts on the brakes 

on the No. 4 shuttle car on occasions prior to June 12, 1991. 

When they tightened the bolts, they felt the machine was operational. (Tr. 12 9) . 

86. It was acceptable for Mr. Peters to shut down his 

shuttle car if he felt the brakes were not working properly. 

(Tr. 273, 275). 

87. Mr. Firestone never_decided not to have Mr. Peters' 

shuttle car checked or repaired because of Mr. Peters' complaints 

about the car or ventiliation. (Tr. 262). 

88. MSHA investigated shuttle car No. 4 following the brake 

failure on June 12, 1991, and found no neglect by Twentymile Coal 

Company with respect to maintenance of the car. (Tr. 213). 

89. When Mr. Peters refers to the "heaters" on his shuttle 

car, he is referring to the electrical overloads. (Tr. 75). 

90. An overload is an electrical unit that protects the 

motor from drawing too much amperage. (Tr. 20). 

91. During the time in question, the "overloads" kept kickon the No. 4 shuttle car. (Tr. 20) 

92. When the 61 heatersii would kick on shuttle car No. 4, the 

power would be cut off. The shuttle car could not be operated 

again the heaters cooled and they could be reset. (Tr. 

228 y 0 

93. When the heaters kicked on Mr. Petersv shuttle car the 

breaks were activated by a selinoid and they set immediately. 

(Tr. 23 0) • 

94. The downshift had been working on the No. 4 shuttle car 

frequently to correct the situation with the heaters kicking. 

(Tr. 229) . 

95. If a shuttle car is worked on during a production shift, 

it is noted on a report called a production and maintenance 

report. (Tr. 69). 

729 
96. If a shuttle car is worked on during a maintenance 

shift, it is noted on a report called a maintenance report. (Tr. 

69} • 

97. The brakes on the No. 4 shuttle car had been worked on 

several times shortly prior to June 12, 1991, as indicated in 

Exhibits R-1 through R-5. (Tr. 257). 

98. The production and maintenance report for Mr. Peters' 

crew on the day shift on May 31, 1991, indicates that work was 

done on his shuttle car with regard to the heaters kicking and to 

replace a brake puck. (Tr. 71, Ex. R-1). 

99. A maintenance report for the swing shift on May 31, 

1991, indicates that repairs were made to the electrical system 

of the No.' 4 shuttle car and that 4. 1 hours were spent replacing 

the brake rotor on the right side of the shuttle car. (Tr. 72, 

Ex. R-1). 

100. A maintenance report for the swing shift on June 6, 

1991, indicates that work was done on the heaters on the No. 4 

shuttle car. (Tr. 76, Ex. R-2). 

101. A maintenance report for the graveyard shift on June 6, 

1991, indicates that additional work was done on the heaters of 

the No. 4 shuttle car. (Tr. 76, Ex. R-2). 

102. A maintenance report for the swing shift on June 7, 

1991, indicates that work was done on the electrical system on 

the No. 4 shuttle car. {Tr. 77 9 Ex. R-3). 

103. A main~t.enance reoort for the graveyard shift on June 7, 

19 91'" ind ·that. t<JOrk was done on the brakes on the No. 4 

shuttle car. (Tr. 77, Ex. R-3). 

104. A maintenance report for the swing shift on June Bu 

1991 0 indicates that one man spent nine hours working on the 

electrical system on the No. 4 shuttle car. (Tr. 79-80, Ex. 

R-5)!. 

105. A maintenance report for the day shift on June lOu 1991u 

indicates tha'c work was done on the electrical system of the No. 

4 shuttle car. (Tr. 78, Ex. R-4). 

106. A maintenance report for the day shift on June 11, 1991, 

indicates that two men worked seven hours to check the tram 

circuit of the.No. 4 shuttle car "for why the overloads kick." 

(Tr. 79, Ex. R-4). 

107. Mr. Peters testified that it is the operator's responsibility to check his car before the start of each shift. (Tr. 27}. 

730 
108. During the day shift on June 12, 1991, the operator of 

shuttle car No. 4 had the shift mechanic work on the brakes. 

(Tr. 139) . 

109. On June 12, 1991, Mr. Peters noticed some loose bolts on 

the brakes of the No. 4 shuttle car during his walk around inspection. He and the section mechanic tightened up the loose 

bolts. (Tr. 27). 

110. After Mr. Peters and the section mechanic tightened up 

the bolts on the brakes on his shuttle car at the beginning of 

his shift on June 12, 1991, he operated the car for three or four 

hours before the brake rotor broke. (Tr. 27). 

111. When the brake rotor broke, Mr. Peters was driving the 

unloaded shuttle car up a hill. (Tr. 27). The car then rolled 

backwards down the hill for a distance of 25 to 30 feet where it 

bottomed out and came to a sudden stop. (Tr. 27). 

112. Mr. Peters is not sure whether his car had a panic bar 

on June 12, 1991, but he knows he did not hit the panic bar when 

the car rolled backwards. (Tr. 64). 

113. At the time Mr. Peters shuttle car rolled backwards on 

June 12, 1991, Mr. Peters did not believe he had been injured and 

he told Mr. Firestone that there was no problem. (Tr. 28, 65). 

114. On June 12, 1991, Mr. Peters did not tell Mr. Firestone 

that he was injured. If he had, Mr. Firestone would have either 

taken Mr. Peters outside or he would have completed an accident 

report. (Tr. 255-256). 

115. subsequent 'co June 12 1 1991; while working through 

vacationu Mr. Peters began to have pain going down his leg which 

he believed was connected to the sudden stop of his shuttle car 

on June 12, 1991. (Tr. 29). It was then that Mr. Peters 

inquired as to whether an accident report had been filed. 

(Tr. 3 o )l • 

116. Mr. Peters never proved that his back injury was a 

result of the sudden stop of his shuttle car on June 12, 1991, 

since there was no medical expert testimony to connect the 

accident to the injury. 

117. Mr. Peters has been instructed by mine management personnel that if he feels a piece of equipment is unsafe, he is not 

supposed to operate it. (Tr. 88). 

118. Mr. Firestone was not present in the section on June 12, 

1991, when the brake rotor broke on Mr. Peters' shuttle car 

because he was in another section running an errand for his 

supervisor. (Tr. 255). 

731 
119. Mr. Peters is not aware of any damage to the shuttle car 

on June 12, 1991, when the brake rotor broke. (Tr. 67). 

120. There was no reason for Mr. Firestone to file an accident report immediately following the failure of the brakes on 

June 12, 1991, because Mr. Peters said he was not injured and 

because there was no damage to the shuttle car other than the 

broken brake parts. 

121. 

incident 

June 12, 

report. 

employee 

There was no accident report filed with respect to the 

when the brakes broke on Mr. Peters' shuttle car on 

1991, until July, 1991. Mr. Peters did not file a 

Accident reports are initiated at the mine by the 

involved. (Tr. 203). 

122. Mr. Peters' complaint to MSHA states that the brakes 

would not .stop his shuttle car very good with a load on; however, 

his car was unloaded when the brake rotor broke on June 12, 1991. 

(Tr. 66) . 

DISCUSSION 

As a threshold matter there is no proof in this record as to 

the status of cyprus Minerals Company. Accordingly, the case is 

dismissed as to said Respondent due to lack of proof. 

Protected Activity 

There is no question but that Fred L. Peters was engaged in 

activities protected under the Mine Act when he complained about 

the shuttle carsr the overloads kicking out and the service 

braJces on 'che shuttle cars. In addition Q his complaints about 

the entries and his written complaints to MSHA were furt:her protected under the Mine Act. 

Direct Evidence of Discrimination 

As a threshold matter, it is apparent that the record fails 

'i:O OlJ..sclose anv direct evidence of discrimination as to Mr. Peters" protected activities. HoweverQ as noted under the case law 

direct evidence is seldom seen in such cases. Accordinglyu it is 

appropriate to determine whether any circumstantial indicia might 

be established by the evidence. 

~nowledge of Protectea Activity 

Twentymile's supervisor knew of Mr. Peters' safety complaints but took no adverse action. 

732 
Hostility to Protected Activity 

There was no hostility to Mr. Peters' protected activity. 

Ross Stewart, a shuttle car driver on Mr. Peters 1 crew shut down 

the shuttle car when he felt it was unsafe to operate it. No 

discipline or hostility was shown towards Mr. Stewart. In addition, it was acceptable for Mr. Peters to shut down his car if he 

felt it was unsafe. Finally, Mr. Peters had been instructed to 

shut down unsafe equipment. Compare Hicks v. Cobra Mining, Inc., 

et al 12 FMSHRC 563, 568 (Weisberger, J.). 

In sum, the failure of management to manifest hostility, 

displeasure or anger appears to confirm the lack of any discriminatory intent against employees who exercise such rights. 

Coincidence in Time 

Mr. Peters claims the second step letter of June 10, 1991, 

was discriminatory conduct on'·the part of the company. However 1 

that bears only a minimal relationship in time to the events 

beginning April 23, 1991. In Larry Cody v. Texas Sand and Gravel 

Co., 13 FMSHRC 606, 668 it was held that adverse action was not 

motivated by a two week old safety complaint. 

Disparate Treatment 

There is no evidence that Mr. Peters was treated differently 

than other employees. 

In support of his position Mr. Peters relies on Phillips v. 

Interior Board of Mine Operations Appeals, 500 F.2d 772 (1974). 

He asserts Phillips is identical with the case at bar. 

~ d The primary issue in Phillips is when a miner's 

safety complaints first come under protection of the Mine Act 

(when made to a foreman or when made to MSHA). 

The determination 

t.hat. case o 

Phillips was specific to the facts in 

Mr. Peters further argues the failure of Respondents to 

fully repair the defective shuttle car brakes constitutes discrimination which resulted in direct damage to him and deprived 

him of full payq overtime and a demotion to the status of a 

temporary position. 

Contrary to Mr. Peters' views the record establishes extensive repairs were made to shuttle car No. 4. Mr. Peters' position apparently seeks to by-pass the work refusal rights under 

the Mine Act. On the other hand, the Judge is obliged to follow 

the Commission's established analysis for considering discrimination cases. 

733 
On the record of this case and for the reasons stated I 

conclude that any adverse action was not motivated, in whole or 

in part, by Mr. Peters' protected activities. Assuming Twentymile and Mr. Firestone's actions were motivated in part by 

Mr. Peters' protected activities the Respondents' established by 

a preponderance of the evidence that they were also motivated by 

business reasons and Mr. Peters' unprotected activities and they 

would have taken the adverse action in any event. 

For the foregoing reasons stated herein, this case is 

DISMISSED. 

Law Judge 

Distribution~ 

Patricia Jo Stoneu Esq"u STONE & ASSOCIATESv 2535 South 

Wadsworthu' Lakewoodv CO 80227 (Certified Mail) 

Stanley R. Geary, Esq., BUCHANAN INGERSOLL, 600 Grant Street, 

58th Flooru Pittsburghu PA 15219 (Certified Mail) 

sh 

734 
FEDERAL tiTNE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 20, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CURTIS CRICK, employed by 

ISLAND CREEK COAL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JAMES BO JONES, employed by 

ISLAND CREEK COAL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CHARLEY WRIGHT; employed by 

ISLAND CREEK COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-548 

A.C. No. 15-02706-03752-A 

Hamilton No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-550 

A.C. No. 15-02706-03754-A 

Hamilton No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-551 

A.C. No. 15-02706-03755-A 

Hamilton Noo 2 Mine 

DECISION 

Appearances~ Gretchen M. Lucken, Esq., Office of the Solicitor, 

UoS. Department of Labor 1 Arlington, Virginia, 

Before~ 

for Petitioner; 

Timothy M. Biddle, Esq. and Jo Michael Clise, 

Esq. 1 Crowell and Moring, for Respondentso 

Judge Melick 

These cases are before me upon the petitions for civil 

penalty filed by the Secretary of Labor pursuant to Section 

110(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et seq., the "Act," charging Curtis Crick, 

James Bo Jones and Charley Wright as agents of a corporate 

735 
mine operator, Island Creek Coal Company 1 with knowingly 

authorizing, ordering, or carrying out a violation by that 

mine operator of the mandatory standard at 30 C.F.R. 

§ 75.400 as alleged in Order No. 3549013. 1 

In pretrial motions to dismiss the Respondents objected 

to the untimely filing by the Secretary of the instant 

petitions. 2 In this regard the undisputed facts show that: 

1. On or about March 31, 1992, the Secretary 

issued to each of these Respondents a proposed civil 

penalty assessment for allegedly violating 30 c.F.R. 

§ 75.400 on January 15, 1991. 

2. By certified mail on April 22, 1992, each 

Respondent filed with the MSHA Office of Assessments 

a notice of contest requesting a hearing on the 

alleged violation and p~oposed penalty. 

3. On April 27, 1992, the Secretary received 

the Respondents' notices of contest. 

4. The Secretary filed the instant petitions 

for civil penalty against Respondents crick, Jones 

and Wright on July 6, 1992, 70 days after receiving 

Respondents' notices of contest. 

5. Respondents Jones and Wright first learned 

that the Secretary intended to propose individual 

civil penalties when they received the March 31 1 1992, 

notice of proposed penalty from the Secretary. 

Section 110(c) provides as follows~ 

'

9Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates or fails 

or refuses to comply with any order issued under this Act 

or any order incorporated in a final decision issued under 

this Act, except an order incorporated in a decision issued 

under subsection l05(c), any director 1 officer, or agent of 

such corporation, who knowingly authorized, ordered, or 

carried out such violation 1 failure, or refusal shall be 

subject to the same civil penalties, fines, and imprisonment 

that may be imposed upon a person under subsections (a) and (b)." 

2 Rulings on the pretrial motions to dismiss were 

deferred to enable the parties to develop an evidentiary 

record to support their positions. Hearings on these 

motions 1 as well as hearings on the merits with Docket 

No. KENT 92-549, were thereafter held on November 18 and 

19, 1992. 

736 
6. Respondent Crick first learned that the 

Secretary intended to propose an individual civil 

penalty against him when the proposed individual 

penalty was conferenced in October 1991. 

More particularly, Respondents argue that the 

petitions herein are untimely under Commission Rule 27(a) 

and must be dismissed under the principles of Salt Lake 

County Road Department, 3 FMSHRC 1714 (1981). In that 

case the Commission held that "if the Secretary does seek 

permission to file late he must predicate his request upon 

adequate cause." The Commission further held that a Respondent 

could also object to a late-filed penalty proposal on grounds 

that it was prejudiced by the delay. The Respondents argue 

that the Secretary's late petitions fail on both counts and 

should therefore be dismissed. 

Commission Rule 27(a), 29 C.F.R. § 2700.27(a) provides 

that 11within 45 days of receipt of a timely notice of contest of a notification of proposed assessment of penalty, 

the Secretary shall file a proposal for a penalty with the 

Commission." In these cases the Secretary now admits that he 

failed to comply with Rule 27(a). In the Salt Lake decision, 

the Commission held that the Secretary is not free to ignore 

the time constraints in Rule 27 for any mere caprice, as that 

would frustrate the enforcement purposes of Section 105(d) 

and, in some cases, deny fair play to operators. Clearly these 

principles are applicable as well to individual respondents in 

Section 110(c) cases and, because such cases directly impact 

individual rights, the concepts of fair play and due process 

must be even more carefully protected. 

The Commission also held in the Salt Lake decision that 

absent extraordinary circumstances; the Secretary is , G , 

admonished to proceed by timely extension motion when extra 

time is legitimately needed. 11 The Commission found unacceptable the procedures followed by the Secretary in that case 

filing an instanter motion accompanying the late filed 

proposal for civil penalty noting that under Commission Rule 9v 

29 C.F.R. § 2700.9 a request for extension of time "shall be 

f 5 days before the expiration of time allowed for the 

filing or serving of the document. 99 In these cases the 

Secretary failed not only to comply with Commission Rule 9, 

but also failed to file any motion explaining the late led 

petitions until, and only in response to, motions to dismiss 

filed by the Respondents. This cavalier disregard of the 

Commission Rules of Procedure and established Commission 

precedent in itself warrants dismissal of these proceedings. 

737 
In any event, the Secretary has failed 

cause" for the late filing in these cases. 

at 1716. As reason for the late filing the 

in her post hearing brief as follows: 

to show "adequate 

Salt Lake, supra 

Secretary alleges 

[T]he record reflects that the Office of 

Assessments was experiencing an unusual backlog 

of cases at the time the case materials were 

generated and forwarded to the Solicitor's Office. 

The record also reflects that the 45-day deadline 

had already expired before undersigned counsel 

even received the case materials, and that the 

petitions were filed within 6 days of receiving 

the case. 11 

The evidentiary record does not, however, contrary to the 

Secretary's representation 1 include any of the information 

now cited by the Secretary as justification for her late 

filing. As part of the Secretary's response in opposition 

to the Motions to Dismiss certain representations and allegations were made, however such representations made in 

pleadings are not evidence. In addition, attached to the 

Secretary's pleadings was a copy of an undated memorandum 

not on its face identified or associated in any way with the 

cases at bar purportedly issued by the Office of Assessments 

and directed to the Regional Solicitors' Offices stating the 

following: 

The subject case is being sent to your 

office for a hearing with an Administrative 

Law Judge at the Federal Mine Safety and 

Health Review Commission" 

rtoweverff due to the increased number of 

contested cases being received in this office 1 

some cases may be late coming to your office. 

We apologize in advance for any inconvenience 

·this may cause p and we intend to make every effort 

possible to get these cases to your office as soon 

as humanly possible. 

If you have any questions concerning this 

matter 1 please contact Edwina Pitts of my staff 

at FTS 235-8344. 

Again, while this document was attached to the Secretary's 

pleadings, it was never introduced into evidence at the 

hearings. Even if it had been properly admitted at hearings 

and identified with these cases, the document needs further 

explanation. 

738 
In addition, as noted by the Respondents in their 

posthearing brief, the Secretary has apparently fallen 

into precisely the routine that the Commission condemned 

in the Salt Lake decision, i.e., the practice of filing 

rather uncomplicated pleadings late. The use of a generic 

intra-agency memorandum warning the regional solicitors 

to expect late transmittal of cases from the Office of 

Assessments creates an inference that the untimely filing 

of pleadings had become the Secretary's practice, not the 

rare exception. The untimeliness in these cases is 

particularly egregious when considering that these cases 

had already been delayed by the Secretary for over 14 months 

before he issued a proposed civil penalty assessment. Obviously at that point the Secretary had already computed the 

proposed assessments and had prepared the related workup so 

his administrative tasks were minimal, i.e., the transferral 

of the case files from one office in the agency to another 

and the filing of a two-page "boiler plate" pleading. Under 

the circumstances, and for this additional reason, the 

late filing in these cases warrants dismissal. 

However 1 even assuming 1 arguendo 1 that the Secretary 

had presented justifiable circumstances for his violation of 

Commission Rules 9 and 27 the Respondents have established 

that they have been prejudiced by the late penalty proposals. 

Salt Lake, supra. First, I find that the delay of 25 days 

is inherently prejudicial to the Respondents, particularly 

following a delay of 14 months before Jones and Wright (and 

9 months in the case of Crick) were even notified that they 

would be charged under Section 110(c) of the Act. The 

inherent prejudice to the individuals charged in cases 

under Section 110(c) is greatly exacerbated by the fact that, 

mine who generally receive immediate notice 

of violations the receipt of a citation or order 1 these 

individuals did not learn of the charges against them until 

well after the alleged violations had been abated, after 

evidence had been removed and after memories had faded. 

There was no reason for these Respondents to have been 

aware when the underlying order was issued on January 15, 

1991; that the Secretary would prosecute them months later 

and they did not therefore have any opportunity to preserve 

evidence or to effectively participate in the various stages 

of the proceedings¢ It was not until March 31, 1992, over 

14 months later, that the Secretary first informed Respondents 

Jones and Wright that they were to be prosecuted under Section 

llO(c) and 9 months later before informing Respondent Crick. 

739 
In addition, at hearing Respondents Jones and Wright 

could not recall with any specificity the circumstances 

surrounding the alleged violation and Respondent Crick's 

recollection was only refreshed "a little bit" by reading 

reports in the belt examiner's book. Moreover, Crick was 

unable to recollect conditions on the cited belt with specific 

detail" 

Other witnesses also had difficulty recalling conditions 

on the cited belt. Belt Examiner Grisham, who conducted the 

belt examination on the day shift preceding the date of the 

order, could not remember the condition of the cited belt or 

any other particular belt. Belt Examiner Hatfield, who completed the last belt examination report before the order was 

issued, also admitted having no specific recollection of the 

conditions at the time of that examination or on the day the 

order was issued. Hatfield also testified that he took notes 

of his observations but that he had long since thrown them 

away. Even Inspector Gamblin.,. who issued the order, admitted 

that he had no recollection of conditions on the cited belt 

independent of reading the order itself. Moreover, Gamblin 

candidly recognized that nwhat the conversation was two years 

ago there would be no way I could tell you that." 

Under the circumstances and recognizing that it would 

be impossible to identify and isolate that precise quantum 

of memory loss and prejudice attributable to the delay at 

issue after a delay of more than a year and a half, it can 

nevertheless reasonably be inferred that the former delay 

contributed to the prejudice. Under the circumstances and 

for this additional reason, the petitions herein must be 

dismissedo 

ORDER 

1\ penalty proceedings Docket Nos. KENT 92-\548, 

92-550 and KENT 92-551 are herrbY dismissed./ j 

~ J i 

1\ 

If I 1 .4 I I Vf;- II/ 

I r ( ~\rv\1 LA/1/\ 

Gary Mel1ck J 

Admini$trative L~w Judge ' 

~ 

KENT 

740 
Distribution: 

Gretchen M. Lucken, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Blvd., Suite 400, 

Arlington, VA 22203 (Certified Mail) 

Timothy M. Biddle, Esq. and J. Michael Klise, Esq., 

Crowell and and Moring, 1001 Pennsylvania Avenue, N.W., 

Washington, D.C. 20004-2595 (Certified Mail) 

/lh 

741 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

APR 2 2 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 92-375-M 

A.C. No. 26-02161-05503-A 

v. 

FRED KNOBEL, employed by 

FKC INCORPORATEDp 

Respondent 

FKC Portable 

PARTIAL SUMMARY DECISION 

Beforeg Judge cetti 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section llO(c) of the 

Federal Mine Safety and Health Act of 1977 1 30 u.s.c. Set seg., 

the "Act. gn 

1 The Secretary charges that Fred Knobel as an agent 

of a corporate operator, namely FKC Incorporatedg knowingly 

authorized, the mandatory 

alleged failure 

machine. 

On the issue of jurisdiction the parties request a partial 

summary decision. I agree ·that such a decision may well be an 

efficient way 't'.o deal with and result in an economy of 

·;:he :oar't.ies ana Com.miss z-esources. 

Section 110c of the Act provides~ 

Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates or fails 

or refuses to comply with any order issued under this 

Act of any order incorporated in a decision issued under 

subsection (a) or section lOS(c}, any director, officer, 

or agent of such corporation who knowingly authorized, 

ordered, or carried out such violation, failure, or 

refusal shall be subject to the same civil penalties, 

fines, and imprisonment that may be imposed upon a 

person under subsections (a) and (d). 

742 
I 

STIPULATIONS 

The parties have agreed to the following stipulations, which 

I accept: 

At all times relevant in this matter: 

1. Fred Knobel was the President of FKC Rock & Sand Company, Inc. 

2. Fred Knobel wasr and is, the President of FKCu Inc. 

3. FKCu Inc. is a general contractor and is engaged in 

offsite gradingu filling and leveling. 

4. FKC, Inc. also grades local streets and roadways. 

5. FKCu Inc. employs from 10 to 20 construction workers, 

depending on the needs of any given project. 

6. FKC Rock & Sand Company, Inc. owned one portable rock 

crushing machine which was and is used to crush rock from construction excavation into smaller, more usable pieces. 

7. FKC Rock & Sand Company, Inc.'s only business operation 

was the portable rock crushing machine. 

B. The rock crusher owned by FKC Rock & Sand Company, Inc. 

was and is located in the Green Valley areau and was and is moved 

to various locations in that area depending upon need. 

9o There was no excavation of materials performed by the 

rock crushing machine or by FKC Rock & Sand Companyu Inc. 

10. The rock crusher performs rock crushing for FKCu Inc. 

and other contractorso 

11. On June 30, l992u the rock crusher was being used to 

crush rock on ~ subcontract with other construction companies in 

Green Valley" 

II 

The Respondent requests a summary decision based upon the 

pleadingsu papers 9 filesr records and evidence herein, the affidavits of Glenn Dodd, Wes Parks and Pat L. Hickey, the Points and 

Authorities and its reply to Petitioner's Response to Motion for 

Summary Decision and Cross-Motion for Partial Summary Decision. 

Petitioner;s motion for summary decision on the issue of 

jurisdiction is based upon the arguments and authorities set 

743 
forth in Petitioner's Response to Motion for Summary Decision and 

Cross-Motion for Partial Summary Decision and the affidavits of 

Vernon Gomez and Arle Brown. In addition to the stipulations and 

material set forth above there is in the file a copy of Respondent's legal identity report dated July 5, 1990 signed by Respondent's executive secretary. 

I have carefully reviewed the entire record including the 

arguments and points and authorities cited by the parties, the 

pleading, documents, affidavits and the stipulations. 

Having considered all of the above and the research and 

arguments of both parties, I find the position of the Secretary 

on the issue of jurisdiction well stated, in accord with precedent, and meritorious. It is adopted here by reference. 

Respondent's emphasis of the term "extracted" in his interpretation of the Mine Act's,definition of mining overlooked the 

relevant terms of the definition of a mine as provided in section 

3(h) of the Mine Act, 30 u.s.c. 801(3) (h). 

The definition of a "coal or other mine" includes "equipment. machines, tool, or other property, •.. used in, or to be used 

in, the milling ... or the work of preparing coal or other minerals ... 01 30 u.s.c. 802(h) (1) (c) (emphasis added). MSHA's jurisdiction over portable crushing operations in this case is predicated on the preparation activity of crushing rock into smaller 

usable pieces. The crushed rock was used for house pads and some 

was sold to various contractors who haul it away for use 

elsewhere a 

Rock ordinarily ined as any consolidated or coherent 

and relatively hard mass of mineral matter" Respondent utilized 

machineu the portable crusher cited by MSHA, to crush rock 

into smaller usable sizes. This activity is properly characterized as the nwork of preparing coal or other minerals" (emphasis 

added) " 

Accordinglyv Respondentfls reliance on the term q

0extraction99 

argue that the portable crusher is not a mining operation is 

misguidedo According to the definition of mining provided in 

section J(h) of the Mine Actv the portable crusher and its use in 

crushing rock into smaller sized usable material is a mining 

operationo 

III 

A legal identity report is required for newly established 

mines. Respondent took the affirmative step of registering its 

portable crusher "F.K.C. Portable" as a new mine with MSHA with 

the Federal mine identification number 26-02161. The same mine 

name and mine identity number appears on the citation at issue. 

744 
Although filing with MSHA for a mine identity number does not 

confer jurisdiction, it strongly indicates that there can be no 

claim of lack of notice or surprise when the inspection was made 

and the citation issued. 

ORDER AND DECISION ON JURISDICTION 

Respondent's motion to dismiss this proceeding is DENIED. 

Petitioner's cross-motion for partial summary decision on the 

issue of jurisdiction is GRANTED. 

The Secretary of Labor Mine Safety and Health Administration 

has jurisdiction. 

Administrative 

Au st F. Cetti ~~ Law Judge 

Distribution~ 

Susanne Lewald 0 Esqou Office of the Solicitoru U.So Department of 

Laboru 71 Stevenson Streetu Suite 1110u San Franciscou CA 94105-

2999 {Certified Mail~ 

Ashley Eo Nitz-Holleranu Esqou NITZu WALTON & HAMMER, LTD., 514 

South Third Streetu Las Vegas, NV 89101 (Certified Mail) 

sh 

745 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 61993 

PEABODY COAL COMPANY, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

0 

. 

DECISION 

CONTEST PROCEEDINGS 

Docket No. KENT 92-1107-R 

Order No. 3547306; 9/10/92 

Docket No. KENT 92-1108-R 

Citation No. 3547307; 

9/10/92 

Camp No. 9 Prep Plant 

Mine ID 15-11012 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 93-177 

A. C. No. 15-11012-03522 

Camp No. 9 Prep Plant 

Appearances~ n 3oest u Esq. r Peabody Coal Company u 

Before 

Henderson, Kentuckyu for Contestant/Respondent; 

Mary Beth Bernui, Esq., Office of the Solicitor, 

U. s. Department of Labor, Nashville, Tennessee 1 

for Secretary. 

Judge Maurer 

~TATEMENT OF THE CASE 

Contestant, Peabody coal Company (Peabody) has filed Notices 

Contest pursuant to section 105(d) of the Federal Mine Safety 

and Health Act of 1977J 30 u.s.c. § 815(d), challenging the 

issuance of a section 107(a) imminent danger order and a 

section 104(a) significant and substantial (S&S) citation which 

were both issued on September 10, 1992, at its Camp No. 9 

Preparation Plant. The Secretary of Labor (Secretary) has filed 

a petition seeking a civil penalty of $700 for the alleged 

violation of 30 C.F.R § 77.201 charged in the contested citation. 

The proceedings have been consolidated for purposes of hearing 

and decision. 

746 
Pursuant to notice, the cases were heard in Evansville, 

Indiana, on January 29, 1993. 

The general issues before me include: (1) whether the 

condition cited in the contested imminent danger order was in 

fact an imminent danger warranting the withdrawal of miners; 

(2) whether Peabody violated the cited mandatory safety standard 

found at 30 C.F.R. § 77.201, and if so, whether that violation 

was S&S; and (3) the appropriate civil penalty to be assessed for 

the violation, should any be found. 

Both parties have filed post-hearing proposed findings of 

fact and conclusions of law, which I have considered along with 

the entire record herein. I make the following decision. 

ST~PULATIONS 

The parties have agreed to the following stipulations, which 

I accept (Tr. 5, Joint Exhibit No. 1): 

1. Peabody Coal Company is subject to the Federal Mine 

Safety and Health Act of 1977. 

2. Peabody Coal Company, camp No. 9 Preparation Plant, has 

an affect upon interstate commerce within the meaning of the 

Federal Mine Safety and Health Act of 1977. 

3o Peabody Coal Company and its Camp No. 9 Preparation 

Plant are subject to the jurisdiction of the Federal Mine Safety 

and Health Review commission and stipulate that the 

administrative law judge has the authority to hear these cases 

and issue a decision. 

4. Peabody Coal Company produced 82,713,677 tons of coal in 

the year 1992o 

5. reasonable penalty will not affect Peabody Coal 

Companyus ability to remain in business. 

DISCUSSION AND FINDINGS 

Order No. 3547306, issued pursuant to section 107(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seg. (the Act), charges as follows: 

The following condition which constitutes an 

imminent danger was observed in the tunnel located 

below the raw coal storage silo. Methane 

concentrations of 5.2% to 5.4% were measured one foot 

74 7 
above the coal on No. 3 raw coal belt outby No. 1A and 

No. 1B raw coal feeders. 

A separate citation will be issued for the 

violation included in this Order of Withdrawal. 

Citation No. 3547307, issued pursuant to section 104(a) of 

the Act, charges as follows: 

The raw coal storage silo tunnel is not being 

ventilated so as to maintain concentrations of methane 

below 1.0 volume per centum. Methane concentration of 

5.2% to 5.4% was measured one foot above the coal on 

No. 3 raw coal belt outby No. lA and No. 1B raw coal 

feeders. 

FIND"INGS OF FACT 

1. The order and citation were issued at 9:10a.m., on 

September 10, 1992, by MSHA Inspector Michael V. Moore during a 

CBC inspection of the camp No. 9 Preparation Plant. 

2. During the course of his inspection that day, 

Inspector Moore was accompanied by MSHA Inspector Ted Smith, 

Peabody Safety Manager Larry Cleveland, and miner's representative Sammy Thomas; all of whom testified in this proceeding, save 

Inspector Smith. 

3. During inspection Inspector Moore took a series of 

methane readings ing a methanometer at several locations 

~chroughout prepara"cion plant and of particular significance 

hereing the area underneath the raw coal storage silo. This 

area consists of a ground-level space in the silo structure open 

to the outdoors through an opening approximately 20 feet by 

20 feet. The area underneath the silo contains two coal feeders 

which feed raw coal from the si storage area above onto a coal 

conveyor bel conveys coal out ·through the 20 feet by 

20 feet opening to the preparation plant. 

4. The portion of ':.he coal conveyor bel tline which is 

located under the raw coal storage silo covered by a tight= 

fitting metal cover which serves to contain coal dust. This 

cover has openings behind each of the feeders and is replaced at 

the tail end of the beltline by a metal mesh guard. The cover 

extends approximately to the point at which the beltline exits 

the area under the silo; at this point it is replaced by an 

arched corrugated metal cover with openings in the sides. 

748 
5. Inspector Moore obtained various readings indicating the 

presence of methane gas. He obtained one reading in the 

2.2 to 2.4 percent range by opening an inspection door between 

the two feeders of the silo and holding his methanometer above 

the coal flow under the belt cover while the conveyor belt was 

running. He obtained another reading in excess of 2 percent 

methane by opening an inspection door in the chute area. He 

obtained two additional readings in excess of 2 percent methane 

further down the beltline toward the outside. These four 

readings were each taken above the coal flow on the running belt 

inside the belt enclosure. 

Inspector Moore then proceeded to the area where the belt 

enclosure comes out of the silo and enters the corrugated metal 

belt cover outside of the silo~ He positioned himself on top of 

the belt enclosure and placed his methanometer through the 

opening of the covered belt at the point where it ends, holding 

it above the coal flow and obtained a methane reading of 

5.2 to 5.4 percent. Inspector Moore then obtained another 

methanometer and retested this area holding both methanometers 

above the coal flow, and both methanometers measured 5.2 to 5.4 

percent methane. He then extended his arm inside the corrugated 

metal cover over the beltline outside the silo and obtained a 

reading of 3.7 percent methane. 

6" All the other methane readings taken by the inspector in 

the area underneath the silo showed 0-1 percent concentrations of 

methane gas" These readings were all taken in the general 

atmosphere under the silo as opposed to inside the belt 

enclosure i~self. 

7. Peabody employees regularly take methane readings of the 

general atmosphere in the area underneath the raw coal silo, but 

do not take them under the beltline cover while the coal is 

flowing. Typically~ methane is not detected the general 

atmosphere under the coal silo. 

8. Several tests were run by Mr. Randy Wolfe, Supervisor of 

Safety Engineering at Peabody subsequent to Inspector Moorews 

issuance of the order and citation at bar. He measured airflow 

at the end of the covered section of the beltline (location R-4 

on Joint Exhibit 2) and found an average airspeed of 276 feet per 

minute; and an average airflow volume of 552 cubic feet per 

minute with the belt running but the exhaust fan off. In order 

749 
to determine the airspace volume between the coal and the 

beltline cover, Wolfe had the belt stopped several times and took 

measurements. He found that the clearance between the coal and 

the belt cover ranged from 10-1/2 to 6 inches (the coal surface 

undulated because of the way the feeders work) and averaged 

8-3/4 inches between the top of the coal and the belt. He also 

checked for methane when the beltline was stopped with coal on 

the belt and found none. Based on these measurements and 

observations, it was Wolfe's opinion that methane was being 

liberated while the coal was being fed onto the beltline, and 

this methane was carried outward to the end of the covered area 

by the natural ventilation created by the openings in the 

beltline cover (at the tail and behind each feeder) and the 

movement of the peaks and valleys of the coal. Wolfe also opined 

based on his measurements that it would have been impossible for 

Inspector Moore to take his t:E?adings underneath the cover of the 

beltline and still be at least 12 inches away from the flowing 

coal. 

FURTHER PISCUSSION AND CONCLUSIONS 

The mandatory safety standard set forth at 30 c.F.R. 

§ 77e201 requires that with regard to surface installations 

n[t]he methane content in the air of any structure, enclosure or 

other facility shall be less than 1.0 volume per centum." 

It is well recognized in the mining industry that methane 

measurements made closer than 12 inches from the point of methane 

liberation are not representative of the general atmosphere being 

sampled because of the undue influence of the methane source 

Inspector Moore testified that he tried to take his methane 

readings at least 12 inches from the coal on the beltline because 

this was ~the accepted practice underground and I related it to 

surface o o o o 00 He conceded 'that had he measured closer to 

t:he coal t.han 1 foot 9 he would expect a higher methane reading 

than he would have obtained 12 inches or more away from the coal. 

Taking the reading at least 1 foot off the top of the coal flow 

allows the natural ventilation to dilute any methane that may be 

t:.here. 

Inspector Moore, however, was unwavering in his testimony 

that he took the six methane readings identified on Joint 

Exhibit 2, and discussed herein, supra, at least 12 inches away 

from the coal on the beltline. But he also testified that he 

took five of these readings below the plane of the tight-fitting 

beltline cover. The sixth was taken under the corrugated metal 

750 
beltline cover outside the silo. On the other side, Mr. Wolfe, 

who actually measured coal heights at several points while the 

belt was stopped, testified that there was only 6 to 10 1/2 

inches of clearance between the coal (which varied in height) and 

the belt-enclosing cover. 

I am convinced by Mr. Wolfe's testimony that Inspector 

Moore's methane measurements must have been taken less than 

12 inches from the top of the coal while it was running on the 

beltline. Wolfe's analyses, tests and measured observations are 

more inherently trustworthy than Moore's "eyeball" estimate of 

this distance which he made while the belt conveyor was in 

motion. 

Accordingly, I find and conclude that the methane readings 

taken by Inspector Moore thatformed the basis for the order and 

citation at issue herein, would have been some indefinite amount 

lower had they been taken at least 12 inches off the coal. 

However, notwithstanding that fact, I am still going to give the 

Secretary the benefit of the doubt that even though they would be 

somewhat lower than stated, they would still be in excess of 

1 percent. 

Turning to the mandatory safety standard at issue herein, 

Peabody called Donald w. Mitchell as an expert witness in the 

mine safety field. Earlier in his career, he had participated in 

the drafting of the regulations which appear in the 30 C.F.R. 

§ 77.200 series as the immediate supervisor of the task force 

responsible their preparation. He testified that 

CoFoRo § 77o201 was a surface safety standard adapted from the 

underground safety standardsr and based on his involvement in 

preparing the rule, was his opinion that section 77.201 was 

never intended to apply to methane concentrations in such 

relatively confined areas such as the space under the cover of 

covered beltlinesF and that ~enclosure" as that word is used in 

standardf was contemplated to apply to much larger areas such 

as control rooms and that type of enclosure within a preparation 

plant. In the context of the area under the raw coal silo at 

Peabody's camp No. 9 Preparation Plant, he opined the standard 

would be designed limit methane in the atmosphere in the 

structure generally, not specifically in that confined space 

under the belt cover. Mr. Mitchell further testified that he was 

not familiar with any previous instance in which an MSHA 

inspector has taken methane measurements underneath the cover of 

a beltline. Inspector Moore agreed that it was a new practice in 

his own experience. 

I concur with Mitchell and Peabody. A covered beltline is 

not a "structure, enclosure or other facility" within the meaning 

751 
of 30 C.F.R. § 77.201. The enclosed area under the raw coal 

storage silo where the covered beltline is located is the 

"structure, enclosure or facility" for purposes of the standard, 

which is violated if the methane concentration in the general 

atmosphere of the structure exceeds one percent by volume. 

Irrespective of the interpretation of the mandatory safety 

standard alleged to have been violated, it is also alleged that 

the methane levels found by Inspector Moore represented an 

imminent danger. 

Section 3(j) of the Act defines an imminent danger as "the 

existence of any condition or practice in a coal or other mine 

which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated." 

30 u.s.c. § 802(j). In Rochester & Pittsburgh Coal Co., 

11 FMSHRC 2159, 2163 (November 1989), the Commission noted that 

"the u.s. courts of Appeals have eschewed a narrow construction 

and have refused to limit the concept of imminent danger to 

hazards that pose an immediate danger." {citations omitted). 

The Commission noted further that the courts have held that "an 

imminent danger exists when the condition or practice observed 

could reasonably be expected to cause death or serious physical 

harm to a miner if normal mining operations were permitted to 

proceed in the area before the dangerous condition is 

eliminated ... Id., guoting Eastern Associated Coal Corp. v. 

Interior Bd. of Mine Op. App., 491 F.2d 277, 278 (4th Cir. 1974). 

The Commission also adopted the Seventh Circuit's holding that an 

inspector 9 s finding of an imminent danger must be supported 00 unless there evidence that he has abused his discretion or 

authority" 0

' 11 FMSHRC at 2164 quoting Old Ben Coal Coro. v. 

Tnterior Bd. of Mine Op. APP·u 523 F.2d 25 0 31 (7th Cir. 1975). 

In Utah Power & Light Co., 13 FMSHRC 1617, 1627 (October 

1991) , the Commission reaffirmed that an MSHA inspector has 

considerable discretion determining whether an imminent danger 

exists. However the Commission held in these cases that there 

must be some degree of imminence to support an imminent danger 

order and noted that the word 01 imminent 11 is defined as nready to 

take place[$] near hand[;] impending •.. [v] hanging 

threateningly over one~ s head [ ; ] menacingly near. uu 13 FMSHRC 

at 1621 (citation omitted). The commission determined that the 

legislative history of the imminent danger provision supported a 

conclusion that 01 the hazard to be protected against by the 

withdrawal order must be impending so as to require the immediate 

withdrawal of miners. 01 Id. Finally, the Commission held that an 

inspector abuses his discretion, in the sense of making a 

752 
decision that is not in accordance with law, if he issues a 

section 107(a) order without determining that the condition or 

practice presents an impending hazard requiring the immediate 

withdrawal of miners. 13 FMSHRC at 1622-23. 

The Commission has also held that, in an imminent danger 

case, the judge must determine "whether a preponderance of the 

evidence shows that the condition or practice, as observed by the 

inspector, could reasonably be expected to cause death or serious 

physical harm, before the condition or practice could be 

eliminated." Wyoming Fuel Co., 14 FMSHRC 1282u 1291 (August 

1992). The Commission went on to explain that, in making such a 

determination# a judge "should make factual findings as to 

whether the inspector made a reasonable investigation of the 

facts, under the circumstances, and whether the facts known to 

him, or reasonably available :t.o.him, supported issuance of the 

imminent danger order.n 14 FMSHRC at 1292. 

The Commission has also very recently held that: 

While the crucial question in imminent danger 

cases is whether the inspector abused his discretion or 

authority, the judge is not required to accept an 

inspector's subjective "perception" that an imminent 

danger existed. Rather, the judge must evaluate 

whether, given the particular circumstances, it was 

reasonable for the inspector to conclude that an 

imminent danger existed. The Secretary still bears the 

burden of proving his case a preponderance of the 

evidenceo Although an inspector granted wide 

scretion because he must act quickly to remove miners 

from a situation that he believes to be hazardousu the 

reasonableness of an inspector 1 s imminent danger 

finding is subject to subsequent examination at the 

evidentiary hearing. 

Island Creek Coal Co. 9 Docket Nos. VA 91=47-R9 91-48-Rv and 

91-49-R 15 FMSHRC (March 3 9 1993)o 

Inspector Moore testified that the high level of methane 

found inside the enclosed belt conveyor and the presence of coal 

dust on the belt could cause an explosion which would result in 

bodily injury such as burns or death to any personnel working in 

the area. He also testified that the possibility of an explosion 

was intensified by the presence of an ignition source in that 

roof bolts, mining machine bits, and other types of metal objects 

found intermittently mixed in the coal in the silo could strike 

the metal structure of the silo and create a spark. 

753 
Additionally, the Secretary presented testimony by Clete 

Stephan, an expert in the field of explosions related to coal 

mining. Mr. Stephan stated the methane levels found by Inspector 

Moore were within the explosive range and that the addition of 

coal dust on the belt conveyor would heighten the explosibility 

of the methane. Mr. Stephan also testified that there were four 

potential ignition sources that could have been present 

including: spontaneous combustion in the silo, metal to metal 

contacts such as Inspector Moore discussed, the possibility of 

welding or cutting by Peabody employees in the area of the silo 

and rollers on the belt conveyors which can become stuck and 

generate enough friction to increase the temperature on the 

beltline. 

It is undisputed that cutting or welding is not performed 

while the raw coal beltline at ... camp No. 9 Preparation Plant is 

running. Mr. Mitchell discounted the possibility of methane 

ignition by spontaneous coal combustion due to the lack of any 

history of such combustion at Camp No. 9, and the fact that the 

type of coal handled has little tendency to spontaneous heating. 

Based on the nature of the materials likely to be present on the 

belt and the amount of energy available, Mitchell did not believe 

that sparking or friction due to materials on the belt striking 

the beltline cover was a likely ignition source, and he did not 

believe that rollers becoming stuck and heated was a likely 

ignition source because studies have shown that temperatures 

associated with stuck rollers are below the ignition temperatures 

of either coal or methane and because there were no accumulations 

coal dust around the rollers. Mitchell also considered and 

discounted static electricity as an ignition source because the 

beltline is grounded for its entire length and because the 

humidity is high. Mr. Mitchell also considered the possibility 

of ignition due to electrical equipment, which was not likely 

because the electrical equipment within the facility was designed 

to be incapable of igniting a vapor or gas. 

In choosing Mr. Mitchell~s opinion over that of Mr. stephan, 

I have considered that Mitchell 0 s opinions were based, at least 

in partu on his personal inspection of the raw coal silo, an 

investigation into the operational history of the facility and on 

the physical data gathered by Mr. Wolfe, including the important 

factor that the inspectoris methane readings had to have been 

taken within 6 to 10 1/2 inches of the coal vice a minimum of 

12 inches, as is standard practice. Mr. Stephan, on the other 

hand, was not sure he had ever visited the facility in question 

and he had accepted the inspector's methane readings at face 

754 
value. Therefore, his op1n1ons were necessarily of a general 

nature, not specifically related to conditions and practices at 

this facility or taking into consideration the manner in which 

the readings were obtained and they accordingly carry less weight 

than Mitchell's in resolving the issues in these cases. 

Mr. Mitchell and others testified that the standard practice 

in measuring methane was to measure at least 12 inches from the 

coal in order to obtain a measurement representative of the 

"general body" of the atmosphere being measured. High percentage 

concentrations of methane coming out of the surface of the coal 

(as in these cases) are unavoidable and do not represent a hazard 

in the absence of an ignition source. He also testified that 

ignition of methane under the belt cover was not likely due to 

the absence of an ignition source but that even if an ignition 

should occur it would be a "deflagration" rather than an 

explosion and would not endanger anyone who might be in the area, 

which is in and of itself, a rarity. Mr. Shirkey estimated that 

typically about 15 minutes per shift of work would be performed 

in the area under the raw coal storage silo. A certain volume of 

gas is required, according to Mr. Mitchell; you need more than a 

small pocket of air in the explosive range in order to sustain an 

explosion. 

Furthermore, the highest methane reading obtained by 

Inspector Moore and the one cited in the order and citation was 

taken at position R-4 in Joint Exhibit No. 2. At that location, 

the methane is virtually outside; it is within inches of being 

outside and the potential ignition sources in that area are as a 

matter 8 nil. 

llyf it is undisputed that the covered beltline under 

the raw coal storage silo at Camp No. 9 has been in existence and 

in substantially the same condition and configuration since 

approximately 1981. It is also uncontested that no fires and/or 

have occurred on the that time. Yet the 

contendsu based on the methane measured by 

Inspector Moore on September lOu 1992 1 that a methane ignition is 

ouimminent. au Mr. Stephan testified that an explosion will 

occuru and that the only question is when. This 

discrepancy between actual experience and the Secretaryus theory 

defies explanationu and has not been explained to my satisfaction 

this record. 

Inspector Moore's readings in excess of 1 percent methane 

under the beltline cover do not represent a concentration of 

methane in excess of 1 percent in the general atmosphere of the 

structure in violation of 30 C.F.R. § 77.201 and do not represent 

an imminent danger in the absence of an ignition source, or a 

755 
sufficient volume of methane to cause any real damage, assuming 

an ignition. Accordingly, Order No. 3547306 and Citation 

No. 3547307 will be vacated herein. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Section 107(a} Order No. 3547306 IS VACATED and 

Peabody's contest IS GRANTED. 

2. Section 104(a) Citation No. 3547307 IS VACATED and 

Peabody's contest IS GRANTED. 

3. The captioned cases ~E DISMISSED. 

Law Judge 

Distribution: 

David R. Joest, Esq., Peabody Coal Company, 1951 Barrett Court, 

P. o. Box 1990, Henderson, KY 42420 (Certified Mail) 

Mary Beth Bernuiu Esq.u Office of the Solicitor U. S. Department 

of Labor 2002 Richard Jones Roadu Suite B-201v Nashvilleu TN 

37215 {Certified Mail) 

dcp 

756 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

APR 2 91993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

v. 

VARRA COMPANIES, INC. , 

Respondent 

Docket No. WEST 92-305-M 

A.C. No. 05-2846-05521 

Del Camino Pit 

DECISION 

Appearancesg Kristi Floyd, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner; 

!Seforeg 

Thomas Ripp, Esq., Wheat Ridge, Colorado, 

for Respondent. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA)u charges Varra Companiesu Inc. 

("Varra"), with violating safety regulations promulgated under 

the Federal Mine Safety and Health Act 9 30 U.S.C. § 801! et seq. 

(the Act "; " 

A hearing on the merits was held in Denver 9 Coloradou on 

December 29 9 1992. Respondent filed a post~trial brief. 

SETTLEMENTS 

At the commencement of the hearing, Respondent moved to 

withdraw its contests as to Order Nos. 3905712, 3905713, and 

390514. 

The motion should be granted. (Tr. 8). 

757 
The remaining enforcement documents were litigated particularly as to negligence, unwarrantable failure, and civil 

penalties. 

ST:IPOLATIONS 

The parties stipulated as follows: 

1. Varra Companies, Inc., is engaged in mining and selling 

of sand and gravel in the United States, and its mining 

operations affect interstate commerce. 

2. Respondent is the owner and operator of the Del camino 

Pit, MSHA I.D. No. 05-2846. 

3. Respondent is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

~(the "Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citation and orders were properly served by 

a duly authorized representative of the Secretary upon an agent 

of Respondent on the date and place stated therein, and may be 

admitted into evidence for the purpose of establishing their 

issuance. Moreover, the parties hereby stipulate to the facts 

contained in each citation and order and the designation of significant and substantial in each citation and order" The only 

issue remaining t'lith. regard to each citation and. order is the 

degree negligence 9 which affects the designation of each 

order as an unwarrantable 

6. The exhibits to be offered by Respondent and the Secretary are stipulated to be authentic but no stipulation is made 

as to their relevance or the truth the matters asserted 

t.h.ereino 

The proposed penalty will not affect Respondent's 

it.y continue in businesso 

8o The operator demonstrated good faith in abating the 

violation.c 

9o Respondent is a small mine operator with 13,446 tons of 

production or hours worked in 1990. 

10. The certified copy of the MSHA Assessed Violations 

History accurately reflects the history of this mine for the two 

years prior to the date of the citation and orders. 

758 
Citation No. 3905711 

This citation, issued under Section 104{d) (1) of the Act, 

provides as follows: 

The superintendent was observed operating (tramming) 

the cat 416 backhoefF.E.L. and was not wearing a seat 

belt. The cat 416 (Serial No. 5PC01511) was used for 

various jobs at the plant and pit and as a "Gofer") 

shuttle for equipment and parts, etc. Management is 

aware of seat belt requirements. This is an 

unwarrantable failure. 

The regulation allegedly violated, 30 C.F.R. § 56.l4l30(g}, 

provides as follows: 

(g) Wearing •eat belts. 

Seat belts shall be worri by the equipment operator 

except that when operating graders from a standing 

position, the grader operator shall wear safety lines 

and a harness in place of a seat belt. 

ARTHUR Lo ELLIS, an MSHA metal and nonmetal inspector for 

the past five years, issued Citation No. 3905711. 

The citation was issued when Mr. Ellis observed a small 

front-end loader being operated about the plant. The operator of 

the loader, Mike Ramsey, was not wearing a seat belt. It is a 

requirement that an equipment operator wear seat belts in these 

circumstanceso 

This particular equipment not a grader but it is a wheel 

loader and wheel tractoro Seat belts are required on all mobile 

equipment. 

Mr. Ramsey told the inspector that he knew the equipment 

operator is required to wear seat belts. 

Mr. Ellis considered the operator's negligence to be high as 

there was no excuse for the violation. The only excuse offered 

by Mr. Ramsey was that he was only going a short distance. 

The citation was abated when Mr. Ramsey stated he and all 

employees would wear seat belts and he would so advise the other 

employees •. 

MIKE RAMSEY is the superintendent of this sand an gravel 

operation. At the time of the inspection, he was loading steel 

into his backhoe. He observed Mr. Ellis on the premises and 

759 
drove over to talk to him. The weight of the material in the 

backhoe was insufficient to affect the balance of the equipment. 

Mr. Ramsey described the terrain over which he drove as 

being smooth and it could not flip over a backhoe in any manner. 

As he also indicated, he had never seen any vehicle roll over on 

that terrain, nor had he ever received any reports to that effect. It was not his intention to flaunt the seat belt rule. 

On the day of the inspection, all of the individuals at work 

were experienced operators who had been told about the necessity 

of wearing seat belts. 

CHRISTOPHER VARRA testified he is the general manager of 

Varra Companies Incorporated. 

Before the inspection by Mr. Ellis, the operators of the 

equipment had been told to use seat belts. The company had not 

received any prior seat belt citations (see Ex. G-1). 

DISCUSSION 

It is apparent the superintendent was not wearing a seat 

belt. Accordingly, the citation should be affirmed. 

It is further uncontroverted, as stated in Varra's brief, 

that Mr. Ramsey was driving over level terrain to meet the 

inspector. The loader was not out of balance and a loader had 

never overturned in this area. 

these circumstancesu I conclude Mr. Ramseyvs conduct 

i:nvol vedl ordinary negligence. The terms owunwarrantable 

:::ailureQu and 0'negligence 11 are distinguished in the Mine Act. A 

finding by an inspector that a violation has been caused by an 

operator's unwarrantable failure to comply with a mandatory 

health or safety standard may trigger the increasingly severe 

enforcement sanctions of section 104(d). 30 u.s.c. § S14(d). 

Negligenceu on the other handu is one of the criteria that the 

Secretary and the Commission must consider in proposing and assessingv respectively0 a civil penalty for a violation of the Act 

or of a mandatory health or safety standard. 430 u.s.c. S§ 

815(b} (1) (B) and 820(i). Although the same or similar factual 

circumstances may be included in the Commission's consideration 

of unwarrantable failure and negligence, the concepts are distinct. See Quinland Coals. Inc., 7 FMSHRC 1117, 1122 (August 

1985); Black Diamond Coal Co., 9 FMSHRC 1614, 1622 (September 

1987). Nevertheless, as explained in Emery, (9 FMSHRC 1997} and 

Youghiogheny and Ohio, (9 FMSHRC 2007) aggravated conduct constitutes more than ordinary negligence for purposes of a special 

finding of unwarrantable failure. "Highly negligent" conduct 

involves more than ordinary negligence and would appear, on its 

760 
face, to suggest an unwarrantable failure. Thus, if an operator 

has acted in a highly negligent manner with respect to a violation, that suggests an aggravated lack of care that is more than 

ordinary negligence. 

Eastern Associated Coal corp., 13 FMSHRC 178, 186 (February 

1991) . 

Varra's brief observes that cases interpreting "unwarrantable failure" do not yield any facts which match the seat belt 

issues here. I agree. However, the Commission has recognized as 

relevant to unwarrantable failure determinations such factors as 

the extent of the violative condition, length of time it existed, 

whether the operator was placed on notice that greater efforts 

are necessary for compliance, and the operator's efforts in abating the violative condition. Peabody Coal Co., 14 FMSHRC 1261 

(August 1992). 

Mr. Ramsey's conduct involved only ordinary negligence. 

Accordingly, it follows that the unwarrantable failure allegations should be stricken. 

Citation No. 3905711 should be affirmed. 

Citation No. 3905715 

This citation alleges a violation of 30 C.F.R. 

§ 56.14130(i). The citation reads as follows: 

The operator of the Cat D-9 Dozer, Serial No. 66A7250, 

was not wearing a seat belt. The seat belt was rotten 

and one side was torn almost in two pieces. While 

examining the belt, it fell in two pieces. The dozer 

was being operated in the pit on sloped and uneven 

ground. Management was not requiring seat belt use. 

This is an unwarrantable failure. 

The regulation provides as follows: 

qi) Seat belt aaintenance. 

Seat belts shall be maintained in functional 

condition, and replaced when necessary to assure 

proper performance. 

Mr. Ellis indicated the D-9 dozer involved here is a crawler 

tractor with the blade on the front. 

761 
In Mr. Ellis's opinion, the operator was highly negligent. 

He based this view on the fact that the superintendent said he 

was aware of the defective seat belt. In addition, MSHA had 

issued a program manual relating to seat belts. The condition 

that existed here had been there for some time. 

It takes five minutes to install a seat belt. Mr. Ramsey 

testified that he was not aware that there was anything wrong 

with the seat belt before the inspection. After the citation was 

issued, the seat belt was replaced. 

Mr. Ramsey is familiar with the types of equipment that are 

required to have seat belts, but he was not aware that the seat 

belt on this equipment had anything wrong with it before the 

inspection. After the citation was issued, the seat belts were 

replaced. 

At the pit there are no heavily traveled roads, although 

some of the heavy equipment has to go up and down the slopes. 

Mr. Ramsey did not know how long it would take for a seat 

belt to rot. 

CHRISTOPHER VARRA stated the D-9 dozer had been purchased a 

few months before the inspection. He was not aware that the seat 

belt had rotted. Before the inspection, the operator of the 

equipment had been told to use seat belts. Mr. Varra opined that 

the seat belt was probably overlooked when the equipment was 

purchased. 

Mr" Varra agreed he responsible for enforcing the seat 

t la'tv and _:f any violations are found they will lbe written up. Howeve~: he doesn•~ personal check to see that seat belts are 

used operators. 

DISCUSSION 

The evidence establishes the seat lbelt was not maintained in 

a functional condition. The belt was rotten and one side was 

torn almost two pieces. In factQ the belt fell in two pieces 

when the inspector examined The described conditions should 

have been readily observableo 

Although Messrs. Ramsey and Varra testified they were not 

aware of the defective beltv they should have been since the 

equipment had been purchased only a few months before the 

inspection. 

762 
The above facts indicate a high degree of negligence on the 

part of the operator. As a result, the violation was due to the 

operator's unwarrantable failure. 

Citation No. 3905715 should be affirmed. 

citation No. 3905716 

This citation was amended to allege a violation of 10 C.F.R. 

§ 56.14130(g) (cited above). The citation reads as follows: 

Seat belts were not provided on the Komatsu Dozer 

Model No. 355A, exposing employees to the possibility 

of being thrown about and from the cab of the dozer. 

The dozer was used in the pit to mine with. Management was aware of this·eondition. This is an unwarrantable failure. The dozer was provided with 

R.O.P.S. 

MSHA Inspector Arthur Ellis issued this citation when he 

observed Jim Whitley, an employee, operating the Komatsu dozer 

without wearing a seat belt. The seat belt had been missing 

since a new seat had been installed on the dozer. Mr. Ellis 

indicated the regulations require a seat belt on this type of 

equipment, which is a crawler tractor. 

Mr. Ellis further designated this situation as one of high 

negligence. This is based on the fact that Mr. Ramsey said he 

was aware that seat belts were required and an MSHA policy manual 

had been sent to all operators. 

The company offered no excuse. 

The violation was abated by seat belts being installed and 

employees being instructed their use. 

Mr. Ramsey indicated that after the seat was unbolted, a 

seat belt was found lying under the seat. The first time that 

Mr. Ramsey learned the seat belts were not visible was when 

Mr. Ellis so advised him. 

The equipment operator, Jim Whitleyu had some 40 years' 

experience in operating dozers, and Mr. Ramsey himself has been 

aware of the seat belt requirement since he has been in the sand 

and gravel business. 

The terrain where the Komatsu dozer was operated was on 

about a 35 degree angle. 

763 
DISCUSSION 

The operator again challenges the unwarrantable failure 

designation. 

However, I conclude the operator was highly negligent. 

The company was aware seat belts were required. An MSHA 

policy manual had been sent to all operators. Any cursory check 

would have established that the seat belt on this Komatsu dozer 

had been bolted under the seat. 

High negligence establishes the designation of unwarrantable 

failure. 

Citation No. 3905716 should be affirmed. 

In support of its position, Varra mentioned a prior citation 

(No. 3905429) where the operator was cited under§ 104(a) for not 

wearing a seat belt while operating the loader. The loader was 

being operated on uneven ground. (Ex. R-1). 

This evidence does not damage Mr. Ellis's testimony, since 

he explained the operator involved in the prior citation was not 

aware its employee was not wearing the seat belt. 

CIVIL PENALTIES 

Section llO(i} of the Act mandates consideration of certain 

criteria assessing 1 penalties. 

Varra is a small operator. (Stipulation 9) • 

Varra has a favorable history with only 19 violations 

assessed in the two years ending November 4v 1991. (Ex. G-1). 

The operator was negligent as to all the seat belt viola-

~ions since the violative conditions were open and obvious. 

Concerning the operatorvs gravity~ 

Order No. 3905711 involved a terrain where the CAT 416 would 

not likely turn over. As a result, the gravity should be considered as low. 

In Order No. 3905715 the seat belt was not properly maintained. The inadequate belt establishes a situation of high 

gravity. 

764 
In Order 3905716, the seat belt was not worn. The terrain, 

at 35 degrees, establishes a situation of high gravity. 

Varra abated the violative conditions and the company is 

entitled to statutory good faith. 

The penalties set in the order of this case are appropriate. 

For the foregoing reasons I enter the following: 

ORDER 

1. Order No. 3905712 and the proposed penalty of $400 are 

AFFIRMED. 

2. Order No. 3905713 and the proposed penalty of $400 are 

AFFIRMED. 

3. Order No. 3905714 and the proposed penalty of $400 are 

AFFIRMED. 

4. Order No. 3905711 is AFFIRMED and a penalty of $100 is 

ASSESSEDo 

5. Order No. 3905715 is AFFIRMED and a penalty of $400 is 

ASSESSED. 

6 . Order No. 3905716 is AFFIRMED and a penalty of $400 is 

.I&.SSESSED. 

Law Judge 

Distribution~ 

Kristi Floydu Esqo~ Office the Solicitoru U.S. Department of 

Laboru 1585 Federal Office Buildingu 1961 Stout Street, Denver, 

Colorado 80294 ~Certified Mail) 

Mr. Thomas Ripp, 4315 Wadsworth Boulevard, Wheat Ridge, co 80033 

(Certified Mail) 

765 
:FEDERAL IUHB SAFETY ARD HEALTH UVI:D COI!DliSSJ:OB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 91993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on Behalf of 

GERALD SAPUNARICH, 

complainant 

LEHIGH PORTLAND CEMENT 

COMPANY, 

Respondent 

. . 

. . 

:- . 

DISCRIMINATION PROCEEDING 

Docket No. YORK 93-65-DM 

cementon Plant & Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This case involves an alleged discrimination against miner 

Gerald Sapunarich in violation of § 105(c) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seg. 

The parties propose to settle the case by assessment of a 

civil penalty of $1,500.00 and by posting the settlement 

agreement on the mine bulletin board for a minimum of 30 dayso 

: find the settlement to be consistent with the purposes of 

§ 105(c) and § llO(i) of the Act. 

ORDER 

motion to approve settlement is GRANTEDa 

2o Respondent shall pay the approved civil penalty of 

$lu500.00 within 30 days of this Decisionu and upon such payment 

this proceeding is DISMISSEDa 

Distribution: 

0~7-~t/~ William Fauver 

Administrative Law Judge 

James A. Magenheimer, Esq., Office of the solicitor, u.s. 

Department of Labor, 201 Varick Street, Room 707, New York, 

NY 10014 (Certified Mail) 

766 
J. Michael Better, Esq., 315 A. Washington Avenue, Albany, 

NY 12206 (Certified Mail) 

Mr. Gerald M. Sapunarich, P. o. Box 113, cementon, NY 12415-0133 

(Certified Mail) 

Patrick Lydon, Esq., Lehigh Portland Cement Company, 7660 

Imperial way, Allentown, PA 18195 (Certified Mail) 

Mr. Leslie w. Copple, Plant Manager, Lehigh Portland Cement 

Company, P. o. Box 117, Cementon, NY 12415 (Certified Mail) 

/fcca 

767 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 3 01993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

JUNE SAFETY AND HEALTH 

.ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 92-922 

A.C. No. 46-01453-04008 . v. 

Humphrey No. 7 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before~ 

,J)ECISION 

Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, for 

the Petitioner; 

Daniel E. Rogers, Esq., Consol, Inc., Pittsburgh, 

Pennsylvania, for Respondent. 

Judge Maurer 

Statement of the Case 

In this case, the Secretary of Labor (Secretary) seeks a 

l penalty of $1,000 for an alleged violation of section 

03(f of the Federal Mine Safety and Health Act of 1977 

UoSoCc § 813(f 1 which authorizes designated walkaround 

Section 103(f) states~ 

u

9 Subject to regulations issued by the Secretary, a 

representative of the operator and a representative authorized by 

his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

inspection of any coal or other mine made pursuant to the 

provisions of subsection (a)r for the purpose of aiding such 

inspection and to participate in pre- or post-inspection 

conferences held at the mine. Where there is no authorized miner 

representative, the Secretary or his authorized representative 

shall consult with a reasonable number of miners concerning 

matters of health and safety in such mine. Such representative 

of miners who is also an employee of the operator shall suffer no 

loss of pay during the period of his participation in the 

inspection made under this subsection. To the extent that the 

Secretary or authorized representative of the Secretary 

determines that more than one representative from each party 

would further aid the inspection, he can permit each party to 

768 
representatives to accompany inspectors during their inspection 

of the mine. 

Inspector Thomas W. May issued to the respondent section 

104(a) citation No. 3108715 which charges the following: 

The operator did not give the representative, 

authorized by the miners, the opportunity to accompany 

an authorized representative of the Secretary. On day 

shift and afternoon shift on 01-13-92, the miner 

representative was not permitted to accompany me on my 

physical inspection of the Northwest bleeder system. 

On day shift John Higgins, General Superintendent, 

would not permit Sam Woody, the miner representative 

the opportunity to accompany me into the bleeder 

system. On afternoon shift Ron Weaver, Superintendent, 

would not permit Richard Matthews, the miner 

representative the opportunity to accompany me into the 

bleeder system. On afte:fiioon shift I was accompanied 

by Rick Pauley, representative of the operator. 

Pursuant to notice, a hearing was held on the alleged 

violation in Morgantown, West Virginia, on December 17, 1992. 

Both parties have filed posthearing letter-briefs, which I have 

duly considered in making the following decision. 

Stipulations 

The parties stipulated to the following, which I accepted 

(Tr o 7-9) ~ 

Consolidation Coal Company is the owner and 

operator of the coal mine at which the citation in this 

proceeding was issued" 

2o Operations of Consolidation Coal are subject 

to the jurisdiction of the Federal Mine Safety and 

Health Act of 1977" 

3" This case is under the jurisdiction of the 

Federal Mine Safety and Health Review Commission and 

have an equal number of such additional representatives. 

However, only one such representative of miners who is an 

employee of the operator shall be entitled to suffer no loss of 

pay during the period of such participation under the provisions 

of this subsection. Compliance with this subsection shall not be 

a jurisdictional prerequisite to the enforcement of any provision 

of this Act." 

769 
its designated Administrative Law Judges pursuant to 

sections 105 and 113 of the Mine Act. 

4. The individual whose signature appears in 

block 22 of the citation at issue in this case was 

acting in his official capacity and as an authorized 

representative of the Secretary of Labor when the 

citation was issued. 

5. True copies of the citation at issue in this 

case were served on the Respondent or its agent as 

required by the Mine Act. 

6. The total proposed penalty for the citation 

contested by Consolidation Coal Company in this case 

will not affect the Respondent's ability to continue in 

business. 

7. For the purposes of assessing any penalty that 

may be assessed in this case, Consolidation Coal 

Company is a large coal mine operator with an average 

history of violations. 

8. The citation contained in Exhibit A attached 

to the Secretary's petition is an authentic copy of the 

citation at issue in this case with all appropriate 

modifications for abatements. 

Discussion 

on the morning of January 13, 1992v Inspector May informed 

Mr. Robert smith, who works in Consolidation°s Safety Department 

and Mrc Sam Woodyu ·the minerus representative, that he was going 

Y::o go bacJc the northwest bleeder system to inspect the Brock 

Four Bleeder Fan. He also informed them both at this time that 

they had the right to travel with him or not, as they chose. 

This area had not been inspected for 8 months because the 

company had requested and been given a waiver to examine that 

area with the proviso that they take their air and gas readings 

on the surface. Prior to the issuance of this waiver 7 the area 

had been the subject of a weekly examination. 

Mr. Woody was willing to go, but Mr. Higgins, the general 

superintendentv told Inspector May that the company 

representative and the minerus representative, Sam Woody would 

not be traveling with him to the fan. He told the inspector that 

he could go anywhere in the mine he wanted to, but that he 

(Higgins) was not going to permit company employees to go back 

there. Higgins felt that the area was too dangerous; it had not 

been inspected in 8 months and he was not going to allow company 

770 
personnel to go into that area. He informed the inspector that 

his men would stop at the six northwest cut-through. 

Inspector May testified that he then told Mr. Higgins that 

under the Mine Act, the miner's representative had the right to 

travel with him and assist him in his inspection. Higgins again 

stated that the miner's representative, in this situation, Sam 

Woody, was a company employee and his responsibility if he were 

to get injured. He reiterated that he was not going to permit 

it. 

Subsequently, Inspector May, accompanied by Smith and Woody 

arrived at the man door at the six northwest cut-through. 

Inspector May proceeded into the bleeder system alone. Smith and 

Woody remained on the outby side of the man door at the cutthrough. Inspector May remained in the bleeder system for 

approximately an hour. As a result of his inspection, he issued 

a section 107(a) order because of methane concentrations. That 

order is not the subject of this proceeding, but I understand it 

was later vacated as part ot-a settlement negotiation. 

There was a second inspection of the area that day by 

Inspector Mayp to terminate the order. He arrived at the mine 

about 8:30 p.m. At this time John Webber was the Safety 

Department representative and Richard Matthews the minervs 

representative. On this occasion, Mr. Ron Weaver, the 

superintendent of the Bowers Portal stopped him and informed him 

that Webber and Matthews would not be going into that area with 

him, but that a shif~ foreman, Rick Pauley would travel with him 

back to the bleeder. Inspector May advised Weaver of the right 

of the minervs representative under the Act to travel with the 

inspector and assist the inspection. Weaver repeated that 

Matthews "tt>Jould not be with himp he didn 1 t. The 

inspectorr accompanied Foreman carried out 

·cermina"c inspectionu leaving Webber and Matthews behind at the 

man door at the six northwest cut~through. 

In s caser respondent maintains that it was their 

corporate dutv ·to ·· t.hei:c emolovees from potential harm and 

·chat. have a reasona.bJ..e bas · for considering going back 

into 'chat bleeder system ·to be ·too dangerous. 

Upon lection, am not going get into the issue of 

whether or not it "tvas too dangerous or dangerous at all for that 

matter inspect the northwest bleeder system as Inspector May 

insisted on doing on the day in question. The Commission has 

emphasized repeatedly that the walkaround rights granted miners 1 

representatives by section 103(f) of the Mine Act are a vitally 

important statutory right granted to miners and their 

representatives by the Act. And I can find no authority, nor has 

respondent been able to cite me any, for the proposition that the 

opportunity to engage in walkaround can be restricted by the 

771 
operator based on potential danger to the employee/miner's 

representative. Accordingly, I am going to affirm the citation 

at bar. 

Civil Penalty Assessment 

Taking into consideration all of the civil penalty 

assessment criteria found in section 110(i) of the Act, I 

conclude and find that the petitioner's proposed civil penalty 

assessment of $1000 for the violation in question is reasonable, 

and it will be so ordered. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation No. 3108715 IS AFFIRMED. 

2. Respondent, Consolidation Coal Company shall within 

30 days of the date of this decision pay the sum of $1,000 as a 

civil penalty for the violation found herei~ 

Law Judge 

Distribution: 

Charles M. Jackson, Esq., Office of the Solicitor, U.S. 

Department of Laborv 4015 Wilson Boulevard, Room 516; Arlington, 

VA 22203 {Certified Mail) 

Daniel Eo Rogers, Esq., Consol 1 Inc. 1 Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

fb 

wU.S COVERNMENTPRlNTINCOfFJCE, 1993·542·145' 9337 9 

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