September 1982 

Conunissions Decisions 

9-01-82 William A. Haro v. Magma Copper Co. 

9-30-82 MSHA & UMWA ex rel. Howard Mullins 

Administrative Law Judge Decisions 

8-06-82 

9-01-82 

9-03-82 

9-07-82 

9-09-82 

9-10-82 

9-14-82 

9-15-82 

9-15-82 

9-16-82 

9-23-82 

9-23-82 

9-23-82 

9-24-82 

FMC Corp. 

Consolidation Coal Co. 

Mettiki Coal Corp. 

Great Western Electric Co. 

Lehman Gilliam v. Blue Diamond Mining, Inc. 

Charles H. Bundy v. Benham Coal, Inc. 

Lime Products Corp. 

Davis Coal Co. 

Roger E. Sammons v. Mine Services Co. 

Old Ben Coal Co. 

The New River Co. 

Thompson Brothers Coal Co. 

Little Bill Coal Co., Inc. 

C F & I Steel Corp. 

WEST 80-482-DM 

HOPE 75-680 

WEST 82-72-RM 

WEVA 80-516 

YORK 81-12 

WEST 81-213-RM 

KENT 80-288-D 

KENT 82-35-D 

YORK 81-28-M 

WEVA 82-111 

SE 82-15-D 

LAKE 81-46 

WEVA 82-93-R 

PENN 81-171 

KENT 81-102 

WEST 81-93 

Pg. 1619 

Pg. 1622 

Pg. 1628 

Pg. 1634 

Pg. 1635 

Pg. 1645 

Pg. 1651 

Pg. 1691 

Pg. 1699 

Pg. 1707 

Pg. 1713 

Pg. 1735 

Pg. 1741 

Pg. 1763 

Pg. 1766 

Pg. 1777 
Connnission Decisions 
SEPTEMBER 

The following cases were Directed for Review during the month of September: 

Secretary of Labor, MSHA on behalf of George Roy Logan v. Bright Coal Company, 

Inc., and Jack Collins, Docket No. KENT 81-162-D. (Judge Moore, July 23, 1982) 

Secretary of Labor, MSHA v. Sellersburg Stone Company, Docket Nos. LAKE 80-

363-M, LAKE 80-364-M. (Judge Fauver, July 26, 1982) 

Secretary of Labor, MSHA v. A. H. Smith, Docket No. YORK 81-67-M. (Judge 

Melick, July 28, 1982) 

Secretary of Labor, MSHA v. Emergy Mining Corporation, Docket Nos. WEST 82-48, 

WEST 82-80, WEST 81-400-R. (Judge Moore, July 30, 1982) 

Joseph W. Herman v. Imco Services, Docket No. WEST 81-109-DM. (Judge Morris, 

August 9, 1982) 

Review was Denied in the following case during the month of September: 

Secretary of Labor, MSHA v. Miller Mining Co., Inc., Docket No. WEST 81-267-M. 

(Judge Koutras, August 4, 1982) 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

WILLIAM A. HARO 

v. 

MAGMA COPPER COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 1, 1982 

Docket No. WEST 80-482-DM 

ORDER 

William A. Haro has petitioned for discretionary review of a decision 

of an administrative law judge issued on July 23~ 1982. Magma Copper 

has filed a motion requesting that the petition be dismissed as untimely, 

For the reasons that follow, the petition is dismissed as untimely. 

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

~., provides that "any person adversely affected or aggrieved by a 

decision of an administrative law judge, may file and serve a petition 

for discretionary review by the Commission of such decision within 

30 days after the issuance of such decision." 30 U.S.C. § 823 (d) 

(2)(A)(i) (emphasis added). Further, Rules S(d) and 70(a) of the 

Commission's rules of procedure expressly provide that "filing of a 

petition for discretionary review is effective only upon receipt." 29 

C.F.R. §§ 2700.S(d), 70(a). 

The administrative law judge's decision in this case was issued on 

July 23, 1982. The thirtieth day following the issuance of the judge's 

decision was August 22, 1982. Counsel did not mail the petition for 

discretionary review until August 27, 1982. It was not received, and 

therefore filed, at the Commission until August 30, 1982, the thirty1619 82-9-3 
eighth day after the issuance of the judge's decision. Accordingly, 

under the statute and the Commission's rules the petition was untimely 

filed. Valley Rock and Sand Corp., 2 BNA MSHC 1673 (Docket No. WEST 80-

3-M, March 29, 1982)(0rder denying motion for reconsideration); Sunbeam 

Coal Corp., 2 FMSHRC 775 (1980). 

1620 
Distribution 

Thomas G. Martin, Esq. 

1601 North Stone Avenue 

Tucson, Arizona 85705 

for William Haro 

N. Douglas Grimwood, Esq. 

Twitty, Sievwright & Mills 

1700 TowneHouse Tower 

100 West Clarendon 

Phoenix, Arizona 85013 

for Magma Copper Coo 

Administrative Law Judge Jon D. Boltz 

FMSHRC 

333 West Colfax Ave. 

Denver, Colorado 80204 

1621 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 30, 1982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF AMERICA 

on behalf of Howard Mullins 

Vo 

CONSOLIDATION COAL COMPANY, 

Successor to Pocahontas Fuel 

Company 

Docket No. HOPE 75-680 

IBMA 75-39~ 75-40 

ORDER 

This case arose under the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. § 801 !:!~·· (1976). On the effective date of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., (1976 

and Supp. IV 1980), an appeal from a December 20, 1976, decision of the 

Department of Interior's Board of Mine Operations Appeals was pending in 

the United States Court of Appeals for the District of Columbia Circuit. 

On December 31, 1980, the Court issued its decision reversing the decision 

of the Board and remanding for further administrative proceedings. Mullins 

and UMWA v. Andrus, Secretary of Interior, 664 F.2d 297 (D.C. Cir. 1980). ];_/ 

In its decision the Court observed that in light of the enactment of the 1977 

Mine Act "while our remand is technically to the Secretary [of Interior], 

further proceedings to comply with this opinion will automatically take place 

before the [Federal Mine Safety and Health Review] Commission." 664 F.2d at 

310 n. 116. 

Shortly after the issuance of the Court's mandate, the Commission 

issued an order remanding the case to the administrative law judge for 

"further appropriate proceedings" in light of the Court's decision. 

3 FMSHRC 2043 (Sept. 1981). Less than two weeks after this remand, 

and apparently without briefing or argument from the parties, the judge 

issued his decision. 3 FMSHRC 2308 (Oct. 1981)(ALJ). On November 13, 

1981, we granted the petition for discretionary review of the judge's 

decision filed on behalf of Howard Mullins by the United Mine Workers 

of America. 30 u.s.c. § 813(d)(2). 

J:./ The Court's mandate was not issued, however, until August 21, 1981. 

1622 

82-9-16 
That petition requested review of "a single question" presented by the 

judge's decision. The petitioners asserted that "the administrative law 

judge did not comply with the Court of Appeals' instruction to compute the 

amount due and payable to Mr. Mullins." The petition also stated that 

because of the manner in which the judge proceeded on remand, "petitioners' 

counsel has had no opportunity to file an application for whatever costs 

and attorneys' fees may be due Mr. Mullins and/or the UMWA, and no such 

costs or fees were awarded," and requested a summary remand to the judge 

to "'compute the amount due Mullins' as required by the Court of Appeals." 

The petition concluded by framing the question presented: 

Did the ALJ err, and fail to comply with the Court 

of Appeals' remand order, by failing to compute any 

amounts due Mr. Mullins, and instead leaving computation of said amounts to agreement of the parties? 

On review Mullins and the UMWA submitted a two-sentence brief incorporating the petition for review as their brief and noting "that the Court 

of Appeals went to great length to have this case decided without issuance 

of a closure order." Consolidation Coal Company (Consol) submitted a brief 

as the successor to Pocahontas Fuel. It opposes the request for a remand 

to the judge. In Consol's view the adjudicative process, triggered by its 

application for review of the notice of violation, has been brought to an 

end by the Court 1 s finding that the alleged violation in fact occurred" 

Consol submits that because the abatement period was suspended pending 

final administrative action on the question of violation, the appropriate 

course at the present time is for the Secretary to determine the rate of 

pay he believes is appropriate and to set a new period in which abatement 

must be accomplished. Thereafter, if abatement is not accomplished by 

paying Mullins the amount he is due, Consol suggests that a failure to 

abate withdrawal order would be appropriate. Consol dismisses Mullins' 

request for further proceedings to determine costs and attorneys fees, 

stating that such an award is not authorized in this proceeding. 

In a two-page brief the Secretary of Labor submits that "it is clear 

that the D.C. Circuit instructed this Commission to compute the amount 

that Mullins should receive from Consol. Administrative law judges of 

this Commission routinely determine amounts of back pay and interest 

due to complainants after both complainants and respondents have 

briefed the issues relating to such awards." 

The Court of Appeals has determined that compensation at the lower 

rate was impermissible, and although Mullins was officially "classified" 

as a laborer at the time of his transfer, based on the stipulations of 

fact in the record, the "regular rate of pay" that Mullins received 

"immediately prior" to his transfer, in fact exceeded the laborer's 

classification rate. The Court did not determine, however, what the 

"regular rate of pay" received by Mullins "irrnnediately prior to his 

transfer" actually was, i.e., the Court did not establish a precise 

dollar figure at which Mullins should have been compensated after his 

transfer. The Court observed that the appropriate rate was at least 

greater than the $42.75 per shift rat~ due a laborer, but not necessarily 

the $47.25 per shift rate due a roof bolter. The Court left the precise 

rate due Mullins to be resolved as an "administrative.function." 

1623 
We have carefully reviewed the Court's decision, the judge's decision, 

and the arguments of the parties concerning the appropriate forum and 

method of resolving the question remaining in this case. For the reasons 

that follow, we reject the judge's rationale and the operator's argument 

that the Commission has no present role to play in the further administrative proceedings ordered by the Court. In the joint "Stipulation of Issues" 

submitted to the administrative law judge at the outset of this litigation 

the parties framed the issues to be decided in the administrative adjudicative 

proceeding as follows: 

(1) What is the meaning of the phrase "regular rate 

of pay received by him immediately prior to his 

transfer" as used in section 203(b)(3) of the Act? 

(2) Given the meaning accorded the phrase of section 

203(b)(3) set forth above and based on the facts 

stipulated by the parties, is Pocahontas in violation of section 203(b)(3) of the Act? 

The Court of Appeals has resolved the second question: Pocahontas violated 

the Act by paying Mullins at the general inside laborer's rate after his 

transfer. The parties have also been given a partial answer to their first 

stipulated issue: "'The regular rate of pay' is the dollar rate - the rate 

at which the miner was actually remunerated for the work he did - irrespective 

of his job classification" (664 F.2d at 299); "Mullinsi entitlement was the 

rate of compensation actually and regularly received immediately prior to his 

transfer, and not the lower rate of a general inside laborer" (664 F.2d at 

307); "the phrase 'regular rate of pay' in the pay-maintenance section means 

the rate at which the transferring miner was actually and reguiarly compensated when the transfer occurred" (664 F.2d at 310); and "Mullins became 

legally entitled to compensation for his post-transfer work at not less than 

the rate at which he was actually and regularly paid immediately prior to 

transfer" (Id.) • Jj 

Two "interstices in the statutory formula" identified by the Court 

(664 F.2d at 310 n. 117) remain to be filled: (1) what period of time constitutes the time "immediately prior" to Mullins' transfer, and (2) what 

was the "regular rate of pay" received by Mullins during this period? 

Following resolution of these two questions, a precise dollar 

amount must be awarded to Mullins before this administrative adjudication is completed. Absent a specific monetary award based on Mullins' 

"regular rate of pay" "immediately prior to" his transfer, little relief 

will have been afforded the affected miner after eight years of litigation. 

The Court specifically ordered computation of the amount due Mullins. 

This should be done on the remand herein ordered. 

J:./ The questions and issues resolved by the Court are now the law of the 

case. 

1624 
Although the Court observed that "[t]he occasion for remand is not 

a need for additional evidence or fact-finding" (664 F.2d at 310 n. 117), 

this dictum statement made in passing cannot be read as a bar to further 

proceedings if such, in fact, are necessary to finally resolve this 

dispute. Because the parties heretofore have not focused on the precise 

questions remaining, we are of the view that opportunities for further 

briefing from the parties on the meaning of the phrase "regular rate of 

pay ••• immediately prior to transfer", and its application to the facts 

of this case, should be had before a fully adequate decision can be made 

by the judge. In light of the significant passage of time since this 

litigation began, further evidence, perhaps stipulated, as to the 

amounts that Mullins had actually received and the amounts due will be 

necessary before a final award can be made. 

The case is remanded to the administrative law judge for further 

proceedings consistent with this decision. Specifically, if the 

parties find that further litigation, rather than an appropriate 

settlement of this case, is necessary, further briefs from all parties 

on the meaning of the phrase "regular rate of pay ••• immediately 

prior to his transfer" and its application to the facts of this case 

shall be submitted, and a specific determination of the amount due 

Mullins must be made. We further order that the proceedings on 

remand be expedited. 3/ 

3/ Commissioner Backley took no part in the consideration or disposition 

of this case. 

1625 
Distribution 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., NW 

Washington, D.C. 20036 

Steven B. Jacobson, Esq. 

Decastro, West & Chodorow, Inc. 

10960 Wilshire Blvd., Suite 1800 

Los Angeles, California 90024 

Harrison Combs, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Charles C. Moore 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22203 

1626 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of' ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

FW3 CORP~~-tATON, 

Petitioner 

v 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)~ 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FMC CORPORATION, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Application for Review and 

Notice of Contest Proceeding 

Docket No: WEST 82-72-RM 

Citation No: 578862 

Docket No: WEST 82-73-RM 

Citation No: 578863 

Docket No: WEST 82-75-RM 

Citation No: 578865 

Docket No:WEST 82-76-RM 

Citation No: 573980 

Docket No: WEST 82-77-RM 

Citation No: 573981 

Docket No: WEST 82-78-RM 

~ Citation No: 573982 

Docket No: WEST 82-79-RM 

Citation No: 573983 

Civil Penalty Proceedings 

Docket No: WEST 82-134-M 1/ 

A.O. No: 48-00152-05056 

Docket No: WEST 82-135-M 

A.O. No: 48-00152-05059 H 

Docket No: WEST 82-172-M 

A.O. No: 48-00152-05061 

Docket No: WEST 82-183-M 

A.O. No: 48-00152-05012 

FMC Mine 

1/ There are three citations involved in this docket. Only citation 

number 573981 is included in this decision. 

1628 
Appearances: 

Before: 

John A. Snow, • , Vancott, Bagley, Cornwa.11 & McCarthy, 

50 So. Main Street, Suite 1600, Salt Lake City, Utah 

for Respondent and Stephen Kramer, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, Virginia. 

Judge Moore 

DECISION 

The following "Statement of Facts " is adopted from Respondent's briefo 

"FMC owns and operates 9 mobile cranes in conjunction with the operation 

and maintenance of its surface facilities at its mine in Westvaco, Wyomingo 

Periodically, the mobile cranes were used to lift men from the ground to 

elevated positions where they could perform repair and maintenance taskso 

(Trial Transcript, hereinafter "Tr." 153, 154). This practice was conducted 

by all of the mine operators in the trona basin. (Tr. 7). 

In March or April, 1981, Merrill Wolford~ an inspector for the Mine 

Safety and Health Administration ("MSHA"), became concerned about the 

practice of lifting men with mobile cranes. (Tro 7, 55). Wolford discussed 

the situation with his supervisor and his district manager, and a decision 

was made to apply the man-hoisting standards embodied in 30 C.F.R. §57.19 

to the practice of lifting men on the surface with mobile cranes. Tr. 7, 

8, 55, 56). This decision representedi a departure from past MSHA policy 

where inspectors were "basically directed not to issue citations" on this 

practice. (Tr. 56) 

In accordance with this decision, Wolford informed FMC that MSHA was 

going to begin applying the §57.19 Man-Hoisting standards to surface crane 

operations beginning July 1, 1981, and until that date, FMC was required 

to use "spotters" whenever men were lifted with mobile cranes. (Tr. 8, 9, 

35, 36). In response, Julius Jones, safety manager for FMC, on June 4, 1981, 

informed Melvin Jacobsen, MSHA's supervisor of mine inspectors, that FMC 

felt that the §57.19 Man-Hoisting standards applied only to underground or 

shaft operations utilizing hoists and not to surface repair and maintenance 

operations utilizing mobile cranes. (Tr. 9, 10). 

FMC continued using mobile cranes on the surface to lift men. MSHA 

inspectors continued to visit the FMC mine, and, even past the July 1, 

1981 deadline, citations were not issued to FMC for their practice of 

lifting men with mobile cranes. 

On approximately November 25, 1981, Wolford visited the FMC mine and 

made inquiries concerning FMC's practice of using mobile cranes on the 

surface to lift men. (Tr. 11). He issued no citations. Wolford returned 

to the mine on December 8, 1981, with Paul Talley, another MSHA Inspector 

1629 
and issued the Order and Citations at issue herein. (Tr. 12). FMC filed 

an Application for Review and Notices of Contest on December 21, 1981, and 

a hearing was held in Green River, Wyoming, on April 13, 1982." 

Also it was stipulated that although the civil penalty cases associated 

with the review proceedings had not yet been filed, evidence pertaining 

to those penalty cases would be received so that they could be decided, 

based upon the record already made. The civil penalty cases listed in the 

caption above were assigned to me after the trialo 

The order and all of the citations allege violations of various subsections 

of 30 C.F.R. §57ol9. That section has the heading 11Man-hoisting11 0 The preamble 

under the heading states as follows: 

The hoisting standards in this section apply to those 

hoists and appurtenances used for hoisting persons. 

However, where persons may be endangered by hoists and 

appurtenences used solely for handling ore, rock, and 

materials, the appropriate standards should be appliedo 

Emergency hoisting facilities should conform to the extent 

possible to safety requirements for other hoists, and 

should be adequate to remove the persons from the mine with a 

minimum of delay. 

The first paragraph quoted is a prime example of studied ambiguity. 

The first sentence says the standards apply to hoists "used for hoisting 

persons." The second sentence says the standards apply to other hoists. If the 

drafter of this preamble had the desire to foster litigation, I am confident 

that the desire will be fulfilled. Fortunately, in this case, I do not have 

to make a decision as to whether hoists that are not used for man-hoisting are 

covered by the standards. While the Solicitor's brief makes the argument that 

such non-manhoists are covered, MSHA has not taken that position in this case 

because the only cranes cited were those the inspector thought had been used 

for man-hoisting. 

It is obvious that a mobile crane is a hoist in the sense that it lifts 

things. It can hoist men and materials from one elevation to another. The 

terminology used for various parts of the mobile crane (See Gov. Exh. 1), 

include a point sheave for the gib-boom hoist, a point sheave for the main 

hoist, and a main hoist rope. But if any device which is used to hoist 

material is a "hoist" within the meaning of 30 C.F.R. §57.19 it raises the 

question of why it took the inspector almost 8 months after he learned that 

men were being hoisted with the mobile cranes before issuing the withdrawal 

order and citations. At the trial I tried unsuccessfully to determine when 

and why MSHA changed its position regarding the applicability of the standard 

in question to mobile cranes.]:_/. 

'!:_/ JUDGE MOORE: Was there some reason why at one point MSHA thought it was 

not required on these particular cranes; the various standards you are 

talking about? 

1630 
MSHA's hesitancy becomes more understandable upon reading the definition of hoists in 30 C.F.R. 57.2. That definition says that hoist 

"means a power-driven windlass or drum used for raising ore, rock, or other 

material from a mine, and for lowering and raising men and material." The clear 

implication is that the men, material rock and ore are to be lowered into 

an underground mine and raised from it by means of a hoist. Nothing in this 

fn. 2 (continued) 

MR. WOLFORD: No, sir. I donvt believe so. I became interested in it after 

hearing about some of the accidents and seeing an accident in Salt Lake City 

where a person was killedo 

JUDGE MOORE: All right. The other thing is a question that Mr. Snow brought 

up. Why wasn't there an imminent danger when you first found it? Why did 

it become an imminent danger on December 8? 

MR. WOLFORD~ Well, at the time I found it and observed it~ as I said? 

contacted my supervisor, identified the people----

JUDGE MOORE: Well, why did you contact him? 

MR. WOLFORD: Because I wanted some instruction on whether or not we could 

apply the hoisting standards to these cranes. We didn't have any other 

standards that would really apply. 

JUDGE MOORE: Well~ that's what I meant a while ago. Was there some reason 

why you didn't think they applied at one time. 

MR. WOLFORD: I haven't been an inspector that long and I have been--my self 

and Mr. Talley have asked for, over the last three years, have asked for 

direction? • 

MR. WOLFORD: Yes, sir. 

JUDGE MOORE: Now, was it--did you ask for the direction because of the 

imminent danger part of it rather than just the citation. 

MR. WOLFORD: No. I felt it was a hazard and had been for some time. And 

really it had been basically directed not to issue citations on it and--I 

haven't personally seen anyone being hoisted and I had a conflict there. And 

I had told my supervisor that if I found it, I would issue the appropriate citation on it. And he started checking. I haven't personally observed 

anyone being hoisted until the one time at another mine. And these people 

used spotters from that point on until they got the devices installed on 

the cranes. In fact, all of the other operators here did it with the 

exception of FMC. 

JUDGE MOORE: Well, if FMC had been, on December 8, hauling men and you went 

out there and using a spotter, would you have still said it was an imminent 

danger? 

MR. WOLFORD: No, sir. I think if they were using the new safe guidelines 

that we had laid out earlier----

JUDGE MOORE: That would be the difference between imminent and non-imminent 

danger? 

MR.WOLFORD: Yes. 

MR. SNOW: In fact, they are still using the crane without the two-blocking 

device--anti two-blocking device? 

MR. WOLFORD: I don't know. 

MR. SNOW: You don't know if FMC is still using that? 

MR. WOLFORD: Not officially. 

1631 
definition would seem to include a crane which raises men on the surface up to 

various structures for the purpose of making repairs and adjustments. Likewise, 

the definition contained in A Dictionary of Mining, Mineral, and Related Terms 

published by the Bureau of Mines in 1968 makes no mention of mobile cranes in 

the definition of hoist. }__/ The only way a mobile crane can fit into these 

definitions would be if it were positioned over a shaft and used to lower and 

raise men and materials in the shaft. 

Some of the·mandatory standards under 30 C.F.R. §57.19 are inconsistent with the idea of a mobile crane that is used to lift men from the 

surface to .elevated structures coming within the meaning of the word "hoist" 

in those standards. For example §57.194 says that "any hoist •••• shall be 

equipped with a brake •••• capable of holding its fully loaded cage •••• at any 

point in the shaft." §57.19.2 states "hoists shall be anchored securely. 11 

Mobile cranes are not anchored. §57.19.95 provides for signaling devices on 

the shaft bottom or lower deck of the sinking platform. 

fn. 2 (continued) 

MR. SNOW: Well, you do know that from your supervisor telling you that FMC 

is still using the crane, don't you? 

MR. WOLFORD~ He has mentioned that he has allowed FMC to use the crane. 

MR. SNOW: And they're still using it as far as you know based on what your 

supervisor told you? 

MR. WOLFORD: I don't know. 

JUDGE MOORE: What was your answer? I didn't hear. 

MR. WOLFORD: Not that I know of. 

JUDGE MOORE: You don't know whether they're still using it or not? 

MR. WOLFORD: No. I received a call from FMC, from Mr. Bob May-- I don't 

know--two to three weeks ago telling me they had a job and they wanted to 

hoist some people. And I told him I would have to talk to my supervisor 

about it. But as far as I was concerned I would not allow ito 

Mr. SNOW: But you know your supervisor has permitted it? 

MR. WOLFORD: Yes. I think he has. 

l_/ hoist. a. A drum on which hoisting rope is wound in the engine house, 

as the cage or skip is raised in the hoisting shaft. Pryor, 3. b. An 

engine with a drum, used for winding up a load from a shaft. See also 

winding engine. C.T.D. c. The windlass mechanism incorporated as an 

integral part of a power-driven drilling machine used to handle, hoist, and 

lower drill-string equipment,, casing, pipe, etc., while drilling, or to snake 

the drill from place to place. Long. d. The act or process of lifting 

drill-string, casing, pipe, etc., while drilling, or to snake the drill from 

place to place. Long. d. The act or process of lifting drill string, casing, 

or pipe out of a borehole. Long. e. A power-driven windlass for raising ore, 

rock, or other material from a mine and for lowering or raising men and 

material. Long. Also called hoister. Fay. f. The mechanism by which a 

bucket or blade is lifted, or the procesS"Of lifting it. Nichols. g. The 

amount of ore, coal, etc., hoisted during a shift. Fay. h. See draw works. 

B.S. 3618, 1963, Sec. 3. ~-

1632 
After full consideration of the definitions referred to above and all 

of the standards contained in 30 C.F.R. §57 .19 I am convinced that those 

standards were intended to apply only to lifting devices used to raise or 

lower men and material from or to an underground mine site. It follows that 

the citations were improperly issued and they are accordingly vacated. 

As to to the imminent danger order, an imminent danger can exist even if 

there is no violation of a health or safety standard. If the inspector in 

this case had gone to the mine and learned that men were being hoisted 

without two-blocking devices, etc., and believed that that in itself constituted 

an imminent danger, ne could have properly issued a closure order. In this 

case it appears that he waited approximately 8 months to issue such an order 

because he was doubtful as to the applicability of the standards in 4uestion 

to mobile cranes. As indicated by the opinion herein I think bis doubts 

were well founded. but an imminent danger was not created when the decision 

was made to apply hoisting standards to mobile cranes. If an imminent danger 

existed it existed in Harcl1 or April of 1981 and an order should have been 

issued at that time. 

Estopple can play rio valid part in a matter involving health and safety. 

Therefore tne fact that the inspector did not issue the order in March or 

April does not stop him from doing so at a later date. Also, an inspector 

is entitled to change his mind as to whether or not an imminent danger exists. 

In this case, however, it does not' appear there was any change of minde The 

inspector issued the imminent danger order when he decided to issue the 

citations as though he thought therJ was a necessary connection between the 

violation of a standard and an imminent danger. These circumstances, 

together with the fact that the inspector's supervisor still allows men to 

be lifted by the same mobile cranes, convince me that the existence of an 

imminent danger has not been establishedo The withdrawal order is accordingly 

vacated. 

Distribution: By Certified 1".lail 

(}lMs e m ~( J; 

Charles C. Moore, Jr., 

Administrative Law Judge 

Stephen Kramer, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

John A. Snow, Esq., Van Cott, Bagley, Cornwall and McCarthy, 

50 So. Main Street, Suite 1600, Salt Lake City, Utah 84144 

1633 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

Petitioner 

v. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

September 1, 1982 

Civil Penalty Proceedings 

Docket No. WEVA 80-516 

AC No. 46-01436-03094 

Docket No. WEVA 80-517 

AC No. 46-01436-03095 

CONSOLIDATION COAL COMPANY, 

Respondent 

AMENDMENT TO DECISION 

The Decision entered on August 25, 1982, is Ai~ENDED by changing 

the "Distribution!! to read as follows: 

,_.,,,, 1 • - ,. . '.!f: 

(.(:>,/ ·,:,. ' . '1't-((1./'/.."'7_ 

WILLIAM FAUVER, JUDGE 

"Distribution:" 

Robert Cohen, Esq., US Department of Labor, Office of the Solicitor, 

4015 Wilson Boulevard, Arlington, VA 22203 

HJM Little John, Consolidation Goal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 

1634 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY fu.iD HEALTH 

ADMINISTRATIOd (MSHA), 

Vo 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3 1982 

Petitioner 

Civil Penalty Proceedings 

Docket Nos. YORK 81-12 

YORK 81-18 

YORK bl-24 

YORK 81-25 

HETTIKI COAL CORPORATION, 

Respondent Gobbler's Knob Mine 

HETTIKI GOAL COl{POAATilh'lN, 

Applicant 

Vo 

SECRETARY OF LABOR, 

MINE SAfETY AND HEALTH 

ADMINISTRATION (MSHA), 

Contests of Citations and Order 

Docket Nos. YORK 80-107-R 

YOKIZ 80-109-R 

YORK 80-110-R 

YORK 80-113-R 

YORK 80-114-R 

YORK 80-115-R 

YORK 80-116-R 

Respondent 

Gobbler's Knob Mine 

DECISION 

Appearances: Michael Bolden, Esq., John H. O'Donnell, Esq., and 

Leo J. McGinn, Esq., Office of the Solicitor, 

U. S. Department of Labor 

Ralph M. Burnett, for Mettiki Coal Corporation 

Before: Judge William Fauver 

These civil pena~ty and review proceedings were consolidated and heard 

under sections 105 and 110 of the Feaeral Mine Safety and Health Act of 1977, 

30 U. s.c. § 801 ~ ~· Both parties were represented by counsel and have 

submitted proposed findings, conclusions, and briefs. 

riaving considered the contentions of the parties and the record as a 

whole, I find that tne preponderance of the reliable, probative, and substantial evidence estabiishes the following: 

1635 
FINDINGS OF FACT 

1. At all pertinent times, Respondent, Mettiki Coal Corporation, 

operated the Gobbler's Knob Nine in Garrett County, 1VJ.aryland, which produced coal for sales or use in or substantially affecting interstate 

c ornme r c e. 

Docket Nos. YOKK 80-107-R, 80-109-R, and 81-18 

rder of \Ji thdrawal No. 63L.7ll5 and Ci ta ti on • 632707 

2. At the time of an inspection on June 5, 1980, Mettiki was constructing an overcast in the tracK uaulage supply entry. Tt1e overcast was to split 

the air so the belt entry would be isolated. A cavi had been blasted with 

explosives and two walls were under construction on either side of the cavity. 

The cavity was about 20 feet in diagonal, with brows, including overhangs 

averaging 3 to 6 feet, and it extended 6 to 8 feet above the coal seam. 

The haulage ways were frequen used and miners traveled this area on foot. 

There was no wire screen mesh installed over the cavity. Mettiki~s was, 

at some point, to cover the cavity with a canopy of concrete block. A canopy 

is routinely placed in such an overcast construction. At the time of the 

inspection the cavity was not canopied and it was not actually in the process 

of being canopied (although plans called for a canopy later), and the cavity 

had so existed for up to 10 days with miners passing under it. Installing 

the wire mesh would not have interfered wifh the later installation of the 

canopy or the completion of the overcast. 

Paragraph 23, page 11, of Mettiki 's approved roof control plan provided: 

Where falls occur and roof is to be supported by 

roof bolting, wire screen will be bolted to the entire 

cavity in a mobile haulage entry (track, belt, supply 

and active shuttle-car entries). \/ire screen will not 

be required in the fall cavity top when the top is 

massive sandstone, however, wire screen shall be bolted 

to the fall cavity sides. Tt1e use of wire screen is not 

necessary if the cavity is canopied. 

3. Inspector Evanoff was inspecting the cavity 10 days after the blast. 

Inspector Evanoff did not prod the overhang brows for fear of causing a fall. 

tie observed that the sides of the cavity were not supported with wire mesh 

screen and that the brows were not adequately supported. The arch of the 

cavity ceiling was bolted and plated on 4-foot centers. 

1636 
4. He then issued a Withdrawal Order No. 632705 for a violation of 

30 CFR § 75.200. 1/ The order reads in part: 

The approved roof control plan is not being complied at 

the 39th break of the No. 5 entry over the track haulage. A cavity was created over the track haulway that is 

approximately 6 to 8 feet above the coal seam, and overhanging brows that are not adequately supported are protruding 

out towards the center of ~he cavity, at a distance of 

approximately 3 to 6 feet and they extend around the complete 

cavity. Wire screen was required to be bolted to the cavity 

areas and wire screen was not installed. This track 

was examined by a preshift examinero 

::>o The condition was abated by June 18, 1980, by ins additional 

su~porting roof bolts and installing a wire screen at the top of the cavity 

and bringing it around the overhanging browse 

6. On June 5, 1980, the inspector also issued Citation No. 632707, 

citing JU CFR 75.303, }:_/ because the area had been preshifted a number of 

times but the condition in the cavity with the brows had never 

been described 

];/ Section 75.200 provides: 

"Each operator shall undertake to carry out on a continuing basis a 

program to improve the roof control system of each coal mine and the means 

and measures to accomplish such system. The roof and ribs of all active 

underground roadways, travelways, and working shall be supported or 

otherwise controlled adequately to protect persons from falls of the roof 

or ribs. A roof control plan and revisions thereof suitable to the roof 

conditions and mining system of each coal mine and approved by the Secretary 

shall be adopted and set out in printed form on or before May 29, 1970. The 

plan shall show the type of support and spacing approved by the Secretary. 

Such plan shall be reviewed periodically, at least every 6 months by the 

Secretary, taking into consideration any falls of roof or ribs or 

of support of roof or ribs. No person shall be proceed beyond the last 

permanent support unless adequate temporary support is provided or unless 

such tempora!y support is not required under the approved roof control 

and the absence of such support will not pose a hazard to the miners. A copy 

of the plan shall be furnished to the Secretary or his authorized 

tive and shall be availaole to the miners and their representatives. 

'L./ ::iection 75 .3U3 provides, in part: 

- "Within 3 hours immediately preceding the beginning of any shift, and 

before any miner in sucll shift enters the active workings of a coal mine, 

certified persons designated by the operator of the mine shall examine such 

workings and any other underground area of the mine designated by the Secretary or his authorized representative." 

1637 
in a preshift report. The parties, at the hearing, stipulated that if a 

violation of 30 CFR § 75.200 was proven as stated in Order of Withdrawal 

No. 0632705, then there is a violation of 30 CFR § 75.303 for not reporting 

the condition in the preshift report; otherwise both the order of withdrawal 

and the citation must fall together. 

7. About two months after the order and citation, at the direction of 

MSHA, the roof-control plan was revised to require wire screening over overcasts created by shooting or blasting. The new paragraph provided: 

When an overcast is being developed over a track, belt or 

supply entry; planks or will be used with bolts for 

roof support if the overcast is cut with a continuous miner; 

wire screen will be used if the overcast is created by 

shootingo 

8. At 8 p.m. on June 5, 1980, Inspector Hunt observed coal and dust 

spillage estimated to be 35 to 50 tons, around the feeder in the No. 5 

No. 52 Break. The accumulations of loose coal and coal dust were about 5 

feet deep and 10 feet long. In the shuttle car roadway outby the feeder, he 

observed accumulations of loose coal in drifts 4 inches to 3 feet deep for 

a distance of about 30 feet. Over the entire 16-foot width in the No. 7 and 

No. 8 Entries between the Nos. 53 and 44 crosscuts, he observed accumulations 

of loose coal and coal dust 2 inches deep extending for about 800 feet. He 

also observed accumulations of loose coal and coal dust up to 6 inches deep 

at various locations. 

9. The inspector issued Order of Withdrawal No. 629316, citing the 

accumulations observed as a violation of 30 CFR § 75.400, which provides: 

Coal dust, including float coal dust deposited on 

rock-dusted 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. 

lU. When he later inspected the preshift books, ne found no entries 

concerning coal spillage around the feeder or in the entries. He then 

issued Citation No. 62~317 a violation of JO CFK § 75.303 see 

footnote 2). This citation reads in part: 

An inadequate preshif t examination was performed of the 

right mains section because of the conditions stated on Order 

No. 629316 dated 6-5-80 were not reported or recorded. The 

last examination was made by Michael Fulmer between 1:45 p.m. 

and 2:30 p.m. on 6-5-80. 

1638 
11. A witness for Mettiki testified that a layer of coal, about 2 or 

2 1/2 feet, is used as the mine floor in the Gobbler's Knob Mine because the 

underlying material is "fireclay" which is slippery when wet. The vehicles' 

tires grind up the coal and create accumulations that may appear to be spillage. 

Respondent also presented evidence that design defects in the feeder in the 

Right Mains Section produce a considerable amount of spillage. The ramp 

operator is charged with cleaning up the spillage around the feeder at the 

end of his shift. On June 5, 1980, 2:15 p.m., the preshift examiner for 

the afternoon shift helped scoop up the accumulations around the feeder after 

it had processed 488 tons of coal. After inspecting the feeder area, he 

walked the shuttle car roadway,. found no accumulations of coal and reported 

no accumulations or spillage in the preshift book. This was the last entry 

the inspector found in this area. 

YOfu~ 80-115-R and 81-12 

Citation No. 629318 

12. The inspection was resumed on June 9~ 1~80, when Inspector Hunt 

observed a miner repairing a scoop with a hand-held drilL The drill was 

equipped with a locking device that allowed the drill to be operated without 

constant hand or finger pressure. The miner had not activated the locking 

device and was using constant finger pressure to operate the drilL 

13. Locking devices had been removed or deactivated on all of Hettikis" 

other hand-held drills, but not this oneo 

14. Inspector Hunt issued Citation No. 629318 for a violation of 30 CFR 

§ 77.402. The citation reads in part: "The three-eighths-inch, hand-held 

electric drill being operated on the surface in front of the bathhouse was 

not equipped with controls requiring constant hand or finger pressure. There 

was a locking device on the control." ]./ The cited condition was abated by 

removing the automatic locking device from the drill. 

YORK 80-110-R and 81-24 

Withdrawal Order No. 632708 

15. On June 9, 1980, Inspector Evanoff observed, and reported in Withdrawal Order No. 632708, unstable roof conditions in the slope track haulage 

"at a point beginning approximately 21 inby the No. 20 break and extending 

inby for approximately 20 feet." Tt1e roof was severely cracked on the left 

side of the entry and cracks extended to the center of the entry. Wooden 

crossbars installed there were bowed down from overhead pressure and the 

uncracked. part of the roof was "drummy" when tested (meaning that the roof 

was under heavy pressure). This roof area had been reported in the preshift 

examination book (b:OO a.m. -- 6:40 a.m.) with a notation that a barset was 

needed. At tile time of inspection, 1:30 p.m., no work had been performed 

to correct the roof condition and this area had not been dangered off. Personnel were subject to walk under the cited roof area. The foreman had a 

list of preshift-reported conditions and planned to correct the various 

conditions as he came to them. 

}_/ Section 77.402 provides: 

"Hand-held power tools shall be equipped with controls requiring constant hand or finger pressure to operate the tools or shall be equipped 

with friction or other equivalent safety devices." 

1639 
Docket No. YORK 81-24 

Withdrawal Urder No. 805331 

lb. On June 1, 1980, about 3:00 p.m., Inspector Spencer Shriver observed, and reported in Withdrawal Order No. ~Oj331, that the daily examination book did not record unsafe conditions of the hoisting equipment, i.e., 

spots of wear, corrosion, lack of lubrication, accumulation of dirt and conditions stated in Order No. 629278, which had been issued on May 29, 1980. 

17. 1'1ettiki does noc deny the violation charged in Order lfo. 629278, 

but defends the charge in Urder No. 805331 on the grounds that: 

lo The hoist was shut down, except for necessary repair 

personnel, by Order No. 629278, and had not been reopenedo 

2. Order No. 805331 included the same conditions already 

covered by O.rder No. 6292nL 

3 Metticki has paid the penalty assessed for Order 

No. 629278, and should not be subject to another 

penalty for the same conduct. 

DISCUSSION WITH FURTHER FINDINGS 

Order of Withdrawal No: 632705 and Citation No. 632707 

In charging a violation of Mettiki's roof-control plan, the Secretary 

contends that the provision "where falls occur * * * wire screen will be 

bolted to the entire cavity" applies to both intentional and unintentional 

roof falls. He argues that the effects of an intentional fall are even more 

dangerous than those of an unintentional fall, because intentional falls loosen 

rock that would not otherwise be loosened, so that wire screening is all the 

more necessary in intentional falls. He also argues that the addition of a 

new paragraph to Hettiki's revised roofcontrol plan, Paragraph 24, shows that 

M8HA never accepted Mettiki's interpretation of the screening requirement. The 

Secretary proposes a penalty of $2,UUO. 

The parties stipulated that, if a violation of the roof-control plan is 

found, l<.espondent would admit a violation of the preshift examination standard. 

The Secretary proposes a penalty of $240 for that citation. 

Mettiki argues that it had been its practice since 1977 not to use 

wire screen over cavities where canopies were under construction and that 

previous inspectors had not taken exception to this practice. It 

contends that the term "falls" in its original roof-control plan was an 

ambiguity apparent to MSHA in the past and that Mettiki should not be held 

liable for reliance on one interpretation of an ambiguous term. Finally, it 

argues that the brows and cavity extensions were not hazardous. 

1640 
I find, based upon the inspector's testimony, that the condition of the 

cavity was dangerous. He observed that the overhangs were loose, cracked, 

and JUSt short of being an imminent danger. Additional support should have 

been provided. 

I find that the words "where falls occur" in Paragraph 23 of the 

roof-control plan reasonably mean intentional falls as well as unintentional falls. The cavity was therefore required to be supported by wire 

screening. The fact that Mettiki had not screened cavities on four prior 

occasions without being cited for a roof-control violation reduces, 

but does not eliminate, its negligence. There was an unwarrantable failure 

to comply. Based upon the parties' stipulation, Respondent is also deemed 

to have violated 30 CFR § 75.303. 

Withdrawal Order No. 629316 

Metticki admits a violation of 30 CFR § 75.400 as to the accumulation 

of coal and coal dust observed along the sides of the feeder, but contends 

that other accumulations, observed in the entries and crosscuts, were not 

violations. Its ar includes the main s: 

1. Because of a wet, fire-clay underlayment, MSHA permitted Mettiki to 

leave a coal base for roadways. Wheeled equi running on the coal base 

would create a "fine powder" of 2 to 6 inches during a normal shift. MSHA 

was aware of and approved l'lettiki's clean-up program, which called for 

and rockdusting the face area at the end of each shift and to clean and dust 

outby areas once each week. 

2. Beginning at No. 53 break and extending to No. 44 break, there was a 

coal base of about 2 inches in tl1e entries, but this area was not used 

by the mine and "was not effectively of the mine workings." Mettiki 

also contends, "MSHA recognizes and it is the clear standard of practice that 

these entries would not be part of MSHA inspections," Mettiki Br. (July 9, 

1982), P• 3. 

As to Point 1, MSHA did not present conLrary evidence, and the proof does 

not preponderate to establish a violation as to the accumulations in the shuttle 

car roadway outby the feeder. 

As to Point 2, the evidence shows that the 800-foot area between crosscuts 

44 and 53, described in the inspector's order, was being used to haul timber. 

This support's the inspector's contention that the area was an active working 

subject to 30 CFR 75.400. 

The facts as to the accumulation around the feeder establish a most serious 

violation, allowing an accumulation of 35 to 50 tons of coal and coal dust in a 

single shift. Operating with a known defective feeder and allowing such large 

accumulations constituted gross negligence. It also created a serious hazard 

of propagating a mine fire or explosion. There was an unwarrantable failure 

to cou1ply. 

1641 
Citation No. 629317 

The parties have stipulated that the inspector observed impermissible 

accumulations of coal in violation of 30 CFR § 75.400 when he issued this 

citation, which was for an improper preshift examination. Mettiki argues 

that the spillage observed by the inspector had accumulated after the 2:15 

p.m. preshift examination and ttlat the prest1ift report book was accurate. 

It offers several explanations for the volume of spillage observed by the 

inspector. 

First, the feeder processed 488 tons of coal per shift, making extensive accumulations possibleo Second, the feeder was broken and operating 

slower than normal so that when man cars dumped their loads of coal quickly, 

as they usually did, more than the normal amount of spillage resulted. This 

condition is characterized by Mettiki as a "design defect." Third, the other 

accumulations observed by the inspector were simply part of the haulage road 

surface covering the fireclay. Mettiki moved for summary judgment at the 

hearing with respect to this citation based on these arguments, stating that 

the Secretary had failed to establish a prima facie violation. 

I deny the motion. The pure volume of spillage in this case raises a 

significant question of fact as to how long the accumulations had existedo 

However, 11ettiki presented the testimony of the preshift examiner, who 

testified that there were no accumulations of coal and coal dust when he made 

the preshift examination, and this testimony was undisputed. The testimony 

of the government's sole witness on this charge establishes only that the 

coal accumulations existed 6-1/2 hours after the preshift examination. When 

asked, "how long this accumulation had lasted before [he] got there," the 

government inspector responded, "I'm not exactly sure." The government did 

not meet its burden of proving that violative accumulations existed when the 

preshift examination was conducted. 

Citation clo. 629318 

A Hettiki employee was repairing a scoop in front of the bathhouse, 

using a 3/8ttl inch hand-neld drill that had a locking device that would permit 

the drill to operate without constant finger pressure. The drill operator did 

not have the locking device on at the time of the inspection, but the locking 

device could be pushed into position accidently or deliberately so that constant finger pressure would no longer be required to keep the drill running. 

Mettiki's Foreman stated that management knew of the requirement and had 

removed the locking device from other drills on the mine property. For 

some unexplained reason, Mettiki had failed to remove the locking device from 

the drill in question. 

The locking device is a violation of the safety standard in 30 CFR 

§ 77.402. This is a serious violation. If a drill in a locked position 

goes out of control it could injure the operator or sever the electric 

cord and cause an electric shock or fire hazard. 

1642 
Withdrawal Order No. 632708 

A violation of 30 CFR !i 75.200 occurred as alleged. The roof was not 

adequately supported to protect miners from falls of roof or ribs. The area 

cited, for a distance of 20 feet, was severely cracked in parts and drummy 

and the wooden crossbars were bowed from overhead pressure. Mettiki 

showed gross negligence in failing either to correct this condition or to 

danger off the area promptly after the preshift report. There was an unwarrantable 

failure to comply. 

Withdrawal Order Noo 805331 

This violation was proved. The order involves a different standard (daily 

examinations) from the standard involved in Order No. 629708 (preshift examinations), and does not constitute a double charge for the same condition. 

However, considering that there was a previous order on the hoisting equipment when Order No. 805331 was issued, the failure to report unsafe conditions 

as to the hoisting equipment was not a serious violation. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction over the parties and subject matter 

of tnese proceedings. 

2. Mettiki violated 30 CFR !i 75.200 as charged in Withdrawal Order No. 

o327US. Based on the statutory criteria for assessing penalties, Mettiki is 

assessed a penalty of $500 for this violation. 

3. Mettiki violated 30 CFR § 75 .303 as charged in Citation No. 632707. 

Based on the statutory criteria for assessing civil penalties, Mettiki is 

assessed a penalty of $60 for this violation. 

4. Mettiki violated 30 CFR § 75.400 as charged in Withdrawal Order No. 

629316 with the exception of the allegation of accumulations in the shuttle 

car roadway outby the feeder. Based on the statutory criteria for assessing 

penalties, Mettiki is assessed a penalty of $1,500 for this violation. 

5. The' government failed to meet is burden of proving a violation as charged 

in Citation No. 639317. 

6. Mettiki violated 30 CFR § 77.402 as charged in Citation No. 629318. 

Based on the statutory criteria for assessing penalties, Mettiki is assessed 

a penalty of $300 for this violation. 

7. Mettiki violated 30 CFR § 75.200 as charged in Withdrawal Order No. 

o327Utl. Based on the statutory criteria for assessing penalties, Mettiki is 

assessed a penalty of $1,200 for this violation. 

1643 
8. Mettiki violated 30 CFR § 75.1400-3(£) as charged in Withdrawal Order 

No. 805331. Based on the statutory criteria for assessing penalties, Mettiki 

is assessed a penalty of $25 for this violation. 

Proposed findings and conclusions inconsistent with the above are 

rejected. 

ORDER 

WHEREFORi IT IS ORDERED: 

1. Mettiki shall pay the Secretary the above penalties, in the total 

amount of $3,585.00, within 30 days from the date of this Decision. 

2. The withdrawal orders and citations cited in the Conclusions of Law, 

above, are AFFIRHED with the following exceptions: 

a. Withdrawal Order No. 629316 is MODIFIED to delete, .from 

the description of 11Condition or Practice," the allegation of accumulations of coal and coal dust in the 

snuttle car roads. As MODIFIED, it is AFFIRMED. 

o. Cii:ation ifo. 039317 is VACATED. 

3. In accordance with the Order Granting Notion to Withdraw Notice of 

Contest in Uocket Nos. 80-112-R, 80-117-R, and 80-111-R, concerning Citations 

~os. Ub327&1, Ub29J2U, and Ub327U9, respectively, the charges based upon those 

citations in Docket No. dl-12 are hereby DISMISSED. 

4. On motion of the parties at the hearing (Tr. 227, April 26, 1982), 

Docket No. oU-116-K is DISMISSED on the ground that the proposed penalty 

has been i.>aid. 

w~~v~ WILLIAM FAOV£R, JUDGE 

Distribution Certified Hail: 

U.S. Department of Labor, Office of the Solicitor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

Kalph M. Burnett, Esq., Burnett, Eiswert & Crawford, P.A., 5000 Thayer 

Center, OaKlanu, CA '2.1S5U 

1644 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

SEP 7 1982 

GREAT WESTERN ELECTRIC COMPANY, ) CONTEST OF CITATION PROCEEDINGS 

) 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA), 

Respondent, 

) DOCKET NO. WEST 81-213-RM 

) 

) Mine: FMC 

) 

) 

) 

. ). ~~~~~~~~~~~~~~~~~ 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA) 9 

Petitioner, 

v. 

GREAT WESTERN ELECTRIC COMPANY; 

Respondent. 

) 

) CIVIL PENALTY PROCEEDINGS 

) 

) DOCKET NOo WEST 81-258-M 

) 

) Mine: FMC 

) 

) 

) 

) ~~~~~~~~~~~~~~~~~ 

Appearances: 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall & McCarthy 

Salt Lake City, Utah 

For Great Western Electric Company 

Robert J. Lesnick, Esq., Office of Henry C. Mahlman, 

Regional Solicitor, Unites States Department of Labor 

Denver, Colorado 

For the Secretary of Labor 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charges Great Western Electric Company (Great 

Western), with violating Title 30, Code of Federal Regulations, Section 

57.15-5, .!:./ a safety regulation adopted under the Federal Mine Safety 

and Health Act, 30 U.S.C. 801 !.!:.~· 

1/ The cited regulation provides as follows: 

57.15-5 Mandatory. Safety belts and lines shall be worn when men 

work where there is danger of falling; a second person shall tend the 

lifeline when bins, tanks, or other dangerous areas are entered. 

1645 
After notice to the parties a hearing was held in Green River, Wyoming on 

September 1, 1981. 

Great Western filed a post ,trial brief. 

ISSUES 

The issues are whether Great Western violated the regulation, and, if so, 

what penalty is appropriate. 

STIPULATION 

At the hearing the parties stipulated as follows: 

1. An employee of Great Western was on a ladder twelve feet above the 

ground. This is at the FMC Mine. 

2. The employee was not wearing safety belts and/or lines. 

3. The employee was a construction worker. 

4. The body of the employee was not totally within the rails of the 

ladder; specificallyD his shoulders.were not within the rails of the ladder. 

There are three exhibits that have been marked Great Western 1 0 2~ and 3 9 which 

are submitted as showing approximately the position of the employee on the 

ladder. The arms were outstretched towards a light fixture. Both hands of the 

worker were involved with installing the light fixture. 

5. The employee was skilled and experienced in connection with the use of 

a ladder. He uses a ladder everyday. The employee uses the ladder as many as 

twenty different times in a day. The employee does a significant amount of his 

daily work on a ladder. 

6. The employee could have been tied off on the ladder. 

7. The ladder was tied off top and bottom. 

DISCUSSION 

The pivitol issue is whether there was a danger of the workman falling. I 

conclude such a danger existed. 

The scenario is this: the worker, while he was standing on the round rung 

of the ladder without a safety belt, used both hands to install a light fixture. 

During this time the shoulders of the worker were outside of the rails of the 

ladder. In these circumstances it appears that the sole factor preventing the 

worker from falling would be his skill in balancing his body while standing on 

the rungs of the ladder. 

1646 
CONTENTIONS 

Great Western contends that the regulation is vague, ambiguous, and 

unenforceable. Further, that any enforcement of the regulation must be in a 

reasonable fashion. Finally, Great Western declares that even if the regulation 

is valid it was unreasonably applied in this case. 

Is 30 C.F.R. 57.15-5 constitutionally vague and therefore invalid? 

A statute that either forbids or requires the doing of an act in terms so 

vague that men of common intelligence must necessarily guess at its meaning and 

differ as to its application violates the first essential of due process of the 

law. Connally v. General Construction Co., 269 U.S. 385, 391 (1925). This 

principle of law extends to industrial and commercial safety regulations that 

can result in the imposition of civil penalties for their violation. Brennan v, 

OSHRC, 505 F. 2d 869, 872 (10th Cir. 1974); Diebold, Inc. v. Marshall, 585 F. 2d 

1327, 1335-1336, (6th Cir, 1978), 

In deciding whether a safety regulation satisfies the principle of due 

process, the regulation must be examined in the light of the conduct to which it 

is applied. Ray Evers Welding Co. v. OSHRC 625 F. 2d 726, 732 (6th Cir. 

1980); United States v. National Dairy Products Corp. 372 U.S. 29, 33, (1963), 

In Kerr-McGee Corporation, 3 FMSHRC 2496, the Commission construed the 

general meaning of Section 57.15-5. The Commission noted that this section, as 

contrasted with more detailed regulations, is the kind made simple and brief. in 

order to be broadly adaptable to the myriad activities of a miner. From an 

operator's standpoint, one benefit of this flexible approach is that it affords 

considerable leeway in adopting safety requirements to the variable and unique 

conditions encountered in mines. 

Various appellate court decisions support the Review Connnission 1 s 

construction of this regulation. Such appellate decisions arise under the 

Occupational Safety and Health Act, (OSHA), 29 U.S.C. 651 ~ ~· 

A line of cases dealing with personal equipment regulations have applied an 

objective "reasonable" test. That is, whether a reasonably prudent person 

familiar with the circumstances of the industry would have protected against the 

hazard. American Airlines, Inc., v. Secretary of Labor, 578 F. 2d 38, (2nd Cir. 

1978); Voegele Co., v. OSHRC 625 F. 2d 1075, 1079 (3rd Cir. 1980); Bristol Steel 

& Iron Works, Inc., v. OSHRC, 601 F. 2d 717, 723 (4th Cir. 1979) Ray Evers 

Welding Co. v. OSHRC, supra, 625 F. 2d at 731-732; Arkansas Best Freight's 

System Inc. v. OSHRC, 529 F. 2d 649, 655 (8th Cir. 1976; Brennan v. Smoke Craft, 

Inc., 530 F. 2d 843, 845 (9th Cir. 1976). In General Dynamics v. OSHRC, 599 F. 

2d 543, 464 the First Circuit explained that "knowledge of the existence of a 

1647 
hazardous situation must be determined in light of the common experience of an 

industry, but that the extent of precautions to take against a known hazard is 

that which a conscientious safety expert would take." 

I conclude that on the facts presented here that a conscientious safety 

expert would require that the Great Western worker should tie off while in this 

situation. 

Great Western argues that a worker could fall if he slipped on some 

substance left on the floor, or he could fall while conducting an activity on 

the brink of a deep mine, or he could fall while on a step ladder two feet off 

the ground. Therefore, Great Western declares that safety belts should be worn 

1.n almost every mining activity which is obviously not the real world. 

As indicated the test is one of reasonableness and I am unwilling to 

consider in this decision Great Western's various hypothetical situations. 

Great Western's additional argument is that the enforcement of Section 

57.15-5 must be in a reasonable fashion, As previously indicated reasonableness 

is a factor considered in determining this case. The worker here was 12 feet, 

not 2 feet, off of the ground. 

Great Western cites appellate court decisions for the proposition that the 

test of liability should rely solely on whether a reasonably prudent employer 

familiar with the custom and practice of the industry would have protected 

against the hazard. It is correct that industry standards and customs have been 

held determinative of what constitutes reasonableness. This point was suggested 

in Ryder Truck Lines, Inc. v. Brennan, 497 F. 2d 230 (5th Cir. 1974) and B & B 

Insulation, Inc. v. OSHRC, 583 F. 2d 1364 (5th Cir. 1978). 

But the First and Third Circuits have not followed the Fifth Circuit in 

limiting the reasonableness test to the custom and practice of the industry 

because as the First Circuit explained such a ruling ''would allow an entire 

industry to avoid liability by maintaining inadequate safety training" General 

Dynamics, supra, at 464; accord Voegele Co., supra, at 1078. 

Ray Evers Welding Company, supra, relied on by Great Western, is not 

persuasive authority for its position. The case deals with an OSHA regulation, 

(29 C.F.R. 1926, 28(a)), totally d~fferent from the regulation here. In Ray 

Evers the court overruled the claim of vagueness asserted there but held that 

there was a lack of substantive proof in the case. 

Great Western's argument is further denied on the grounds that the Mine 

Safety Act seeks to promote safety and health in the mining industry. Great 

Western's position runs counter to that mandate. Title 30, Code of Federal 

Regulations describes the purpose of the Part 57 regulations as "the protection 

of life, the promotion of health and safety, and the prevention of accidents " Consistent with that general aim, the specific purpose of section 

57.15-5 is the prevention of dangerous falls, Kerr McGee Corporation, supra, 

1648 
at 2497. A dangerous fall may well be at hand if Great Western's employee 

continues this approach in replacing light fixtures. 

Great Western hypothetically assumes that Section 57.15-5 is valid but that 

it was unreasonably applied in this case. Great Western urges there was· no 

danger of the worker falling because the worker was stationary and not moving 

about. Further, there was no danger of falling because the worker had one arm 

extended through the rails and between the upper two rungs of the ladder 

(Exhibits 1, 2, and 3). 

I am not persuaded by Great Western's argument or by its cited authorities. 

Merely being stationary with an arm extended as claimed might not prevent a 

fall. It is common knowledge that the mechanics of a fall generally defy set 

patterns, Further, if the light fixture was to be installed, the worker could 

not remain stationary. 

The authorities cited in its brief do not support Great Western's pos1t1on: 

In Brown v. McKee, 8 OSHC 1247, workers had access to an unsecured ladder. The 

citation was affirmed, In Bristol Steel and Iron Works Inc., 7 OSHC 1462 (601 

F. 2d 717), the appellate court held that the general safety standard, 29 C.F.R. 

1928.28(a), was not applicable to the erection of skeleton steel. In Hurlock 

Roofing Company, 7 OSHC 1867 (1979)~ the Occupational Safety and Health Review 

Commission (OSHRC) affirmed a citation requiring fall protection for workers 

performing roofing work on a flat roof, In Voegele Company, Inc.,7 OSHC 1713, 

OSHRC affirmed a violation of 29 C.F.R. 1926.28(a~ because a worker was standing 

in an 18 inch gutter near the edge of the roof, In Power Plant Division, Brown 

& Root, Inc., 7 OSHC 1713, an OSHRC Judge affirmed a violation of 29 C.F.R. 

1926.28(a) because a reasonable person would have recognized that workers 50 

feet above metal forms and rebars should have used fall protection. 

Great Western also declares that its worker was skilled in the use of a 

ladder therefore that element is a necessary factor in determining whether a 

danger of falling existed. 

I disagree. The skill of a worker could be a factor in assessing a penalty 

as it would relate to the operator's negligence. But, since the Act provides 

for the imposition of liability without regard to fault, the skill of a worker 

would not constitute a defense to a violation of the regulation. Kerr McGee 

Corporation, su~ra. 

I reject Great Western's additional argument that no violation occurred 

because the ladder itself was secured and constructed in a substantial manner 

(30 C.F.R. § 57.11-3, 57.11-4). The most secured and most substantial ladder 

would not prevent this worker from falling if he lost his balance. 

1649 
Great Western also asserts that requiring the use of a safety belt in these 

circumstances is unreasonable. Great Western's final argument merely restates 

its prior views which have already been discussed. 

For the reasons stated and on the stipulated facts I conclude the worker 

could have sustained a dangerous fall from his position twelve feet above the 

floor while balancing himself on the rungs of the ladder. 

The citation should be affirmed. 

CIVIL PENALTIES 

The parties stipulated that the amount of the proposed penalty was not an 

issue. Further, the parties accepted the recommendation of the Secretary's 

assessment office. 

Considering the statutory criteria in Section llO(i) of the Act, [30 U.S,C, 

820(i)], I deem that the proposed civil penalty is appropriate, 

Based on the foregoing findings of fact and conclusions of law I enter the 

following: 

ORDER 

Citation 576985 and the proposed penalty therefor are affirmed, 

Distribution: 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall & McCarthy 

50 S. Main Street, Suite 1600 

Salt Lake City, Utah 84144 

Robert J. Lesnick, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

1650 

Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP9 1982 

LEHMAN GILLIAM, Complaint of Discharge, 

Complainant Discrimination, or Interference 

v. Docket No. KENT 80-288-D 

BLUE DIAMOND MINING, INC., 

Respondent Leatherwood Mine 

DECISION 

Appearances: Tony Oppegard, Esq., Appalachian Research and Defense 

Fund of Kentucky, Inc., Hazard, Kentucky, for Complainant; 

Stephen A. Sanders, Esq., Appalachian Research and Defense 

Fund of Kentucky, Inc., Prestonsburg, Kentucky~ for 

Complainant; 

Randall May, Esq., Craft, Barret & Haynes, Hazard, 

Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued October 3, 1980, as amended 

October 15, 1980, March 19, 1981, and May 13, 1981, a hearing in the 

above-entitled proceeding was held on June 24,. 25, 26, 27, and 29, 1981, 

in Hazard, Kentucky, under section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 815(c)(3). 

After the parties had completed their presentations of evidence, I 

rendered the bench decision which is reproduced below: 1_/ 

This proceeding involves a complaint of discharge, discrimination or interference filed in Docket No. KENT 80-288-D 

on July 21, 1980, as amended February 17, 1981, pursuant to 

section 105(c)(3) of the Federal Mine Safety and Health Act of 

1977. The complaint was filed under section 105(c)(3) after 

complainant received a letter from the Mine Safety and Health 

Administration which indicated that MSHA would not file a complaint on complainant's behalf under section 105(c)(2) of the 

Act. 

The amended complaint alleges that complainant was discharged for engaging in activities protected under section 

lOS(c)(l) of the Act, namely, (1) complainant's refusal to 

1_/ Although the hearing was held in June of 1981, none of the transcript 

was received from the reporter until June 1, 1982, and all of the transcript was not received until September 1, 1982. My decision appears 

in the record as a separate volume of transcript and bears the title 

"Finding of Facts and Ruling." 

1651 
alter canopy legs on a loading machine in the manner requested 

by respondent's chief electrician because complainant believed 

compliance with the chief electrician's instructions would 

render the canopy unsafe, (2) respondent's belief that complainant had notified MSHA of a suspected safety violation, and (3) 

complainant's report to respondent's management on April 23, 

1980, of nmnerous safety violations. At the hearing I granted 

respondent's request to strike the third reason given in support 

of the complaint after counsel for complainant stated that he was 

not going to pursue the third ground because complainant~s report 

of safety violations had been made so close to the time of discharge as to make it difficult, if not impossible, to prove that 

those alleged safety violations had any bearing upon complainant 1 s 

discharge. 

I shall first make some findings of fact on which my decision 

will be based. They are lengthy~ but are as concise as I can 

summarize five days of testimony. 

(1) Lehman Gilliam, the complainant in this proceeding, 

began working for respondent, Blue Diamond Mining, Inca, on 

June 14, 1972, at respondent 1 s No. 11 Main Mineo He worked as 

a union employee until August 1, 1977, when he became a salaried 

employee as a maintenance foreman on the second shift which began at 3:00 p.m. and ended at 11:00 p.m.. In April 1979 Gilliam 

was transferred to the third shift which began at 11:00 p.m. and 

ended at 7:00 a.m.. His supervisor on the third shift was 

Marion Shepherd for the first 2 months, followed by Emmet Farmer 

for the next 6 months, and by Marion Shepherd again for the last 

6 months of his employment. His duties as maintenance foreman 

on the third shift consisted of obtaining parts for repair of 

equipment and supervising the work to make sure it was done. 

Gilliam supervised three mechanics who were assigned to work on 

the third shift. Their names were Dorsey Hall, Denton Gross, 

and Jerry Lewis. 

(2) When Gilliam was supervised by Emmet Farmer, it was 

Farmer's preference to report for work at the respondent's main 

supply house. Farmer would obtain the supplies and parts needed 

on the third shift and bring them to the No. 11 Mine. When 

Gilliam was supervised by Marion Shepherd who worked on the day 

shift, Gilliam reported for work at the supply house for the 

purpose of obtaining parts. Sometimes Gilliam would first go 

to the Jim Polly Mine before reporting at the supply house. A 

conveyor belt transports coal from the No. 11 Mine to the Jim 

Polly Mine and Gilliam could call underground to ask men working 

at the face in the No. 11 Mine what parts were needed for his 

shift. Then Gilliam would proceed to the supply house from the 

Jim Polly Mine. Gilliam normally arrived at the supply house 

between 10:45 and 11:00 p.m.. If Gilliam did go to work by way 

1652 
of the Jim Polly Mine, he would leave home 10 or 15 minutes 

earlier than he did when he proceeded directly to the supply 

house or to the No. 11 Mine from his home. Even though Gilliam 

could call the second shift from Jim Polly Mine, he could not 

determine what repair work might have been reported by the day 

shift. Therefore, Gilliam would call the No. 11 Mine Office 

from the supply house and ask his crewmen, who were still 

on the surface, what kinds of repair work, if any, remained to 

he done as a result of problems encountered by the miners working on the day shifto 

(3) Gilliam used his own pickup truck to haul supplies to 

the No. 11 Mine, which was about 13 miles from the supply houseo 

At the end of each month, Gilliam submitted a claim for mileage 

driven for respondent's benefit for which he was reimbursed at 

the rate of 22 cents per mileo 

(4) Gilliam was discharged by his supervisor, Narion 

Shepherd, at the end of Gilliamis shift on the morning of 

April 21, 19800 Gilliam had reported for work on the preceding 

Sunday, April 20, 1980, at the supply house between 10:45 and 

11:00 p.m •• Gilliam called the Noo 11 Mine from the supply 

house and one of his crewmen, Jerry Lewis, read the maintenance 

report to him. He found that three different pieces of equipment needed repairs. Specifically, a traction motor had to be 

installed on the loading machine, the lights had to be repaired 

on the roof-bolting machine, and a clutch had to be installed 

on the B-23 shuttle car. 

(5) Lewis told Gilliam that, in addition to the three 

aforementioned repairs, Marion Shepherd had given Lewis oral 

instructions to the effect that the back legs of the canopy on 

the loading machine should be raised 3 inches by welding chain 

links to the canopy legs. Gilliam alleges that he told Lewis 

not to start work on the canopy legs until Gilliam arrived at 

the mine. While Gilliam was at the supply house, he discussed 

the raising of the canopy with Wallace Cornett, who was maintenance foreman at respondent's Owens Branch Mine. It was Cornett's 

view that cutting the canopy legs and welding chain links to them 

would weaken them. 

(6) Gilliam traveled to the No. 11 Mine, arriving there 

between 12:00 midnight and 12:15 a.m.. Gilliam alleges that he 

tried to get a member of his crew to come out of the mine with a 

vehicle to take Gilliam into the mine, but Gilliam couldn't get 

anyone to answer the paging phone. Gilliam waited on the surface 

until about 1:45 a.m. before Lewis came out of the mine to provide 

Gilliam with a means of transportation into the mine. While waiting for transportation into the mine, Gilliam talked to Franklin 

Mayhew, who is foreman over a clean-up crew on the third shift. 

1653 
(7) When Gilliam first went underground at 2:00 or 2:15 

a.m. on April 21, 1980, he stated that Dorsey Hall and Denton 

Gross were completing work on installation of a traction motor 

on the loading machine. The loading machine was stuck in mud 

and water and the repairmen tried to get it out of the mud but 

could not. Gilliam claims that the three men finished installing the traction motor after Gilliam came underground. Gilliam 

and the three men on his crew discussed the raising of the 

canopy on the loading machine. Since the front legs of the 

canopy were about 4 inches longer than the back legs~ they decided to cut all four from the canopy so that the front 

legs could be welded to the back of the canopy and the back 

legs could be welded to the front of the canopy. While Lewis 

cut off the legs of the canopy with a cutting torch, Hall repaired the lights on the roof-bolting machine. Hall subsequently installed a new clutch in the shuttle car. Hall found 

that the trouble with the shuttle car was not caused by a defective clutch, but by a stripped pinion or shaft on the pump 

motor. Hall went to Gilliam about 5:30 a.m. and reported that 

a new pump motor was needed to restore the shuttle car to an 

operative condition. By 6:00 a.m., Lewis and Gross had 

finished rewelding all four legs on the canopy, but their 

failure to cut off the back legs at an angle and failure to 

reweld the back legs to the front of the canopy at an angle 

prevented the legs from fitting into the holders on the loading machine. At the finish of their shift, the repairme~ had 

been able to bolt the back legs into their holders, but they 

never did get the front legs to fit into their holders even 

though they tried to force them into their holders by using 

jacks. Gilliam asked his crewmen to work overtime to finish 

the bolting of the canopy, but all of them refused to do so. 

(8) The operator of the loading machine on the day shift 

ran the loading machine with the front legs of the canopy unbolted and out of the holders, but the operator on the second 

shift refused to do so. The canopy was ultimately raised by 

the cutting of new legs which were used to replace the legs 

whose position had been reversed by the third shift. 

(9) When Gilliam left the section on April 21, he reported 

to Shepherd, his supervisor, that they had installed a clutch 

in the shuttle car but that the shuttle car couldn't be operated 

because it needed a new plnnp motor which he had not yet ordered 

from the supply house. Gilliam also alleges that he told Shepherd 

that the traction motor had been installed on the loading machine 

but that the canopy's front legs were unsecured. Gilliam also 

claims that he told Shepherd it would have been in violation 

of the mining laws for him to weld pieces to the canopy's legs. 

Shepherd indicated his dissatisfaction with the condition of 

the equipment and Gilliam said he might have to quit if his 

work wasn't considered to be satisfactory, to which Shepherd 

1654 
replied that as far as he was concerned Gilliam had already 

quit and that Gilliam did not work for Blue Diamond any longer. 

(10) After his discharge on the morning of April 21, 

Gilliam drove to the mine office at Leatherwood and spoke to 

Everett Kelly, respondent's general superintendent. Gilliam 

allegedly told Kelly that Shepherd had fired him because he had 

refused to repair a canopy in a manner which Gilliam felt was unsafe. Kelly told Gilliam that he should do the work assigned to 

him by Shepherd. Gilliam returned to the office again the same 

day about 3:00 or 4:00 p.m. and talked to both Kelly and Richard 

Combs~ another superintendent, and asked that Shepherd~s discharge be reversed by top management. Kelly told Gilliam that 

he would check into the situation and let Gilliam know what his 

ultimate decision was. During his second trip to the mine 

office, Gilliam alleges that Kelly asked Gilliam if he was the 

person who had called MSHA after the motor in a roof-bolting 

machine burned up during the third shift while miners were 

working in the main intake airway. Richard Combs was not 

present when Kelly allegedly asked that question. Combs called 

Gilliam on April 23~ 1980, about 7:30 a.m. 0 to say that he was 

upholding Shepherd's discharge of Gilliam" When Gilliam went 

to the mine later in the day about 8~30 a.m. to turn in his 

self-rescuer, he tried to talk to Combs again~ but Combs declined to talk to Gilliam any more. 

(11) Marion Shepherd asked Gilliam if he had called the 

MSHA inspectors after the motor in the roof-bolting machine 

burned up and Gilliam denied having done so. Shepherd told 

Gilliam that he would fire Gilliam if he found out that Gilliam 

had called MSHA. Gilliam told Shepherd if Shepherd fired him 

in connection with the phone call to MSHA, he, Gilliam, would 

take Shepherd with him. During Shepherd's and Gilliam's conversation about calling the inspector, Shepherd told Gilliam 

to stop portalling, or reporting for work, at the supply house. 

Gilliam alleges that for one shift he reported for work at the 

No. 11 Mine, instead of at the supply house, and went into the 

mine with his three crewmen, but he says about one shift later, 

Shepherd told him to resume reporting to work at the supply 

house because Shepherd was going to be away for several days 

to take his wife to the hospital in Lexington, Kentucky, and 

that he wanted Gilliam to install canopies on three pieces of 

equipment by April 18, 1980, that being the date which MSHA 

had set for the abatement period for some citations written by 

MSHA inspectors on April 11, 1980, when they came to the No. 

11 Mine following the phone call regarding the burning of lead 

wires to the motor on a roof-bolting machine. 

(12) Gilliam stated in his direct testimony that he had 

been caught asleep at the mine during his regular working 

shift on four different occasions. The first time was in 

1655 
April 1979 when Gilliam was caught by a night watchman named 

Caudill when Gilliam fell asleep in his truck in which he was 

installing a CB radio. The second time was when Dana Eldridge 

caught him asleep on top of the power center at a time when 

the mine fan had been turned off. The third and fourth times 

were when Gilliam had gone outside the mine to provide a means 

of transportation for Dana Eldridge to come into the mine to 

make a preshift examination. While waiting for Eldridge to 

appear, Gilliam fell asleep and was found to be asleep by 

Eldridge. 

(13) ·Marion Shepherd, the chief electrician and person 

who discharged Gilliam, was told about Gilliam1 s having been 

seen asleep at the mine during Gilliam's normal working hoursa 

Shepherd says he had been told by Stidhams, the chief night 

watchman, and Dana Eldridge that they had seen Gilliam asleepo 

Additionally~ Shepherd was told by Pearl Campbell~ Bill Pennington, Kenneth Colwell, and Johnny Joseph of having seen Gilliam 

asleep at the mine. Campbell and Pennington based their report 

on a single instance when they arrived on the section at the end 

of the track and saw Gilliam sitting in a railrunner. Pennington 1 s testimony expressed great doubt that Gilliam was asleep 

at that time because Gilliam was about 60 feet from him and 

Campbell. Pennington testified that he could not say for 

certain that Gilliam was asleep. 

(14) Paul Watson and Ray Williams are duly authorized 

representatives of the Secretary of Labor. They went to the 

No. 11 Mine on April 11, 1980, in response to an anonymous telephone complaint to MSHA to the effect that the mine was not 

being properly ventilated at the time a motor on a roof-bolting 

machine burned up. They arrived at the mine about 5:30 a.m. and 

interviewed Frank Mayhew, a third-shift foreman in charge of a 

clean-up crew, and other personnel. The inspectors found that 

the main fan was operating at that time and they wrote no citations in connection with an electric motor which had burned out 

in a roof-bolting machine or use of an auxiliary fan instead of 

the large main fan. While they were at the mine, however, they 

wrote seven citations, three of which alleged violations of 

permissibility standard 75.503, three of which alleged violations of canopy standard 75.1710, and one of which alleged a 

violation of ventilation standard 75.316 requiring installation 

of permanent stoppings outby the last open crosscut. The citations required that the three alleged violations of section 

75.1710 be abated or corrected by April 18, 1980, and that the 

remaining four be abated by April 14, 1980. The termination 

sheets show that all violations had been abated by April 23, 1980, 

when the termination sheets were written, except for installation 

of a canopy on the E-90 roof-bolting machine which was removed 

from the mine in order to achieve abatement. The termination 

sheet on the E-90 roof-bolting machine was written on May 12, 

1656 
1980. All of the termination sheets were written by an inspector 

other than the one who wrote the original citation. 

(15) Willie Bill Pennington was an employee who checked 

water pumps each day. His working hours were from 7:00 a.m. to 

3:00 p.m •• On April 21, 1980, the day of Gilliam's discharge, 

Pennington was at the mine office about 7:00 a.m. and heard 

Shepherd ask Gilliam about a canopy on a loading machine but 

does not know what was said, except that Gilliam told Shepherd 

he would quit if his work wasn't satisfactory to which Shepherd 

replied that "as of this time, you no longer work for Blue 

Diamond Coal Company"o 

(16) Roger Jones is a repairman who worked on the third 

shift under the supervision of Frank Mayhew who was assigned to 

preparing for opening of a new section in the No. 11 Mineo 

He testified that all the men were brought out of the mine one 

morning when the motor on a roof-bolting machine burnedo Smoke 

was said to be headed toward the working face. Someone called 

the inspectors ahout the incident and Shepherd asked him if he 

had called the inspectors. Jones stated that Shepherd was upset 

over it because it cost Shepherd seven violations The seven 

violations have been described in paragraph 14 above. 

(17) Ricky Baker on April 21, 1980, the day of Gilliam's 

discharge, was a supply clerk at the supply house. On the 

evening of April 20, 1980, Gilliam reported to the supply house 

about 10:45 p.m.. Baker was about 10 feet from Gilliam and Wallace 

Cornett when they were discussing something about putting a canopy 

on or taking one off of a piece of equipment. Baker didn't recall 

for certain when Gilliam left the supply house on April 20, 1980. 

Baker thinks during Gilliam's employment as a maintenance foreman, 

Gilliam came for parts about three or four times in the middle of 

a shift. Baker also testified that Gilliam once said he had been 

sleeping in his truck and would continue to do so, that Gilliam at 

least once got to the supply house at 1:00 a.m. because he had been 

watching a game played by the University of Kentucky. Baker recalled that the game started at 11:30 p.m. and said that he remembered the incident well because he wanted to watch the game but 

could not because he had to go to work. Baker also testified that 

Gilliam said it helped his expenses to claim mileage for making 

trips to the supply house for parts. 

(18) One of the three repairmen on Gilliam's crew was 

Dorsey Hall. He testified that another repairman, Jerry Lewis, 

talked to both Shepherd and Gilliam on the phone before they 

went underground on April 20, 1980. They either took parts in 

or parts were already in the mine. He claims the new traction 

motor for the loader had not yet been put in place. All three 

of them worked on the traction motor and had finished installing 

it when Gilliam got inside the mine. Hall said Lewis and Gross, 

the third repairman, worked on the canopy while Hall repaired 

1657 
lights on the roof-bolting machine and replaced the clutch on a 

shuttle car. By 5:30 a.m. Hall had found the clutch was not the 

cause of the shuttle car's problem and that a stripped pinion on 

the pump motor was the cause of the problem. Hall went to the 

power box at 5:30 a.m., where Gilliam was sitting, and told Gilliam 

he needed a pump motor. About 6 a.m. Hall started helping the 

other two repairmen and Gilliam on the canopy, but they couldn't 

get the front legs to fit into the holders. Hall testified that 

Gilliam stayed at the power box most of the time and often lay down 

on top of the box, but Hall said he could find Gilliam if he needed 

him. Hall said that Gilliam reported at the No. 11 Mine and went 

in the mine with his three crewmen for about 1 week. On the morning 

of April 21, 1980, Hall and Gross went down to the track when they 

heard Gilliam and Lewis come in. They discussed the canopy at 

that time and Gilliam left it up to Lewis to determine how the 

canopy should be raised. Hall said they left equipment down or 

unable to be used at the beginning of the day shift about once 

each month or less often. Hall rated Gilliam as an average foreman. Hall said Shepherd asked him if he had called the inspectors 

after the motor on the roof bolter burned and that Shepherd said 

whoever called was a dirty low down blankety blank. Hall told 

Shepherd in a joking way that it might have been Gilliam or Hall 0 

himself 9 who had called the inspectorso 

(19) Jerry Lewis, who was another of the three repairmen 

who worked under Gilliam's supervision on the third shift, stated 

that Shepherd called the No. 11 Mine Office about 11:00 p.m. on 

Sunday, April 20, 1980, before he and the other two repairmen went 

underground. Shepherd instructed him to raise the canopy on the 

loading machine about 3 inches and to repair a shuttle car on 

which a clutch was to be installed. Lewis stated that Shepherd 

told him to use a coupling link which measured about 8 inches in 

width and 16 to 18 inches in length and which was leaning against 

a pole near the 7,200-volt power box outside the mine. Lewis 

also said the width of the coupling bar was 6 inches at a later 

time. Lewis claims that he saw the piece of metal but can't recall whether he took it inside the mine or left it outside. 

Lewis stated that the three crewmen went underground about 11:30 

p.m. and that all three repairmen went to the loading machine and 

completed the installation of the traction motor. Lewis said 

that the new motor was sitting'in the loader but had not been 

bolted into position or connected to the power wires. He said 

he had to crawl under the loader to pull enough slack from the 

power wire to complete installation of the motor. Lewis claims 

that Gilliam left it up to the repairmen as to how they wanted to 

repair the canopy and that Gilliam did not say raising the canopy, 

as Shepherd had instructed, would be unsafe, nor did Gilliam tell 

him to install it differently from the way Shepherd had instructed 

him to do it. Lewis said he cut all four legs off the canopy and 

welded the front legs on the back of the canopy and the back legs 

on the front of the canopy because the front legs were longer than 

1658 
the rear legs and putting the front legs at the rear raised the 

canopy on the end where the operator of the loading machine sits. 

Lewis said that the front holders for the canopy legs were 

slanted but that he welded the legs back on in a straight position. Therefore, they were never able to force the front legs 

into the holders and at the end of their shift they left the 

loader with the front canopy legs unbolted and out of the holders. 

Lewis recalled that Gilliam was told by Shepherd to stop portalling, or reporting for work, at the supply house and Lewis said 

that Gilliam portalled at the No. 11 Mine and went into the mine 

with them for about a week. Lewis said that Gilliam had told him 

about watching University of Kentucky ball games on TV, that there 

were times when Gilliam did not come into the mine at all, that 

Gilliam did not tell Lewis about checking any traps, that Gilliam 

did tell Lewis about checking for pokeberries on company time that 

Gilliam spent most of his time on the power box, at times with his 

hard hat and light belt off, and that he would rate Gilliam as a 

poor foreman. Lewis stated that he went to see Everett Kelly 9 the 

General Mine Superintendent, after work on April 21, 1980, the 

day of Gilliam 1 s discharge, about a diesel job and saw Gilliam 

already talking to Kelly. Lewis said that he voluntarily told 

Kelly that he had not called the MSRA inspectors after the lead 

wires to the motor burned out on a roof-bolting machine. Lewis 

said he normally went outside the mine about 1:00 a.m. to provide 

Gilliam with a means of transportation into the mine, but his 

time of going out varied somewhat so that, for example, on the 

morning of April 21, 1980, he did not go out for Gilliam until 

2:00 a.m •• Lewis said he did not like to be a rat and had declined to tell Shepherd whether Gilliam was sleeping in the mine 

on top of the power box. 

(20) Denton Gross was also one of the three repairmen on 

Gilliam's third-shift maintenance crew. He testified that Shepherd 

called the No. 11 Mine Office on April 20, 1980, and talked to 

Lewis. Shepherd instructed Lewis to cut the canopy legs and 

splice in a piece of metal so as to raise the canopy a few inches. 

The metal was supposed to be lying by the trolley track but he and 

Hall were unable to find it. A day or two after April 20, Dean 

Whitaker, a car driver on the second shift, showed Gross a piece 

of metal about 1-1/4 inch thick, 4 inches wide, and 14 to 18 

inches long and stated that it was the metal which was supposed to 

have been used.on the canopy. They went into the mine about 11:30 

p.m. on April 20 and all three repairmen worked on replacing the 

traction motor on the loading machine. Gross stated that they 

had to remove the old motor and install the new one and that the 

band which holds the motor in place was bent and warped. Lewis 

went out and brought Gilliam in about 2:00 a.m •• Gross said that 

they all discussed the raising of the canopy top, but that it was 

Gilliam's decision that the legs in front be moved to the back. 

Gross stated that none of them could weld in a horizontal or 

vertical position well enough to do the job without taking the 

1659 
canopy off. Gross said that they took the canopy off, cut all 

four legs off, and rewelded them so that the front legs were on 

the back and the back legs were on the front of the canopy, but 

they were unable to get the front legs into the holders on the 

loading machine and left the underground section about 6:45 a.m. 

without attaching the front legs to the hol<lers. Gilliam asked 

them to stay late but they refused because they were too tired 

to continue working. Gross claimed they only left equipment down 

twice at the end of their shift, once when the feeder was not 

operable and again when the head drive in the conveyor belt was 

inoperable. Gross said that he saw Gilliam stretched out on the 

power box about twice each week, that he complained to Shepherd 

once about Gilliam1 s failure to obtain repair parts which were 

needed, that Shepherd had asked him if Gilliam was sleeping in 

the mine, that Gilliam spent most of his time at the power box 

and that he would rate Gilliam as a fair to good supervisoro 

Gross claims that all three of them lifted the canopy off the 

loading machine and that Lewis then worked on the canopy alone 

while Gross and Hall replaced the clutch in the shuttle car and 

discovered eventually that the problem was a stripped pinion on 

the pump motor. Gross said that he and Hall then helped Lewis 

with the canopy until the end of the shift at about 6:45 a.m.o 

(21) Marion Shepherd was Chief Electrician at the No. 11 

Mine on April 21, 1980, when Gilliam was discharged. Shepherd is 

55 years old and has been repairing equipment for 30 years, but 

has only a fifth-grade education. Gilliam worked directly under 

Shepherd's supervision, but Shepherd worked on the first or day 

shift, from 7:00 a.m. until 3:00 p.m., whereas Gilliam worked on 

the third shift which began at 11:00 p.m. and ended at 7:00 a.m •• 

Shepherd, therefore, had to communicate with Gilliam by telephone 

about repairs which had to be done on the third shift. Gilliam 

resented receiving telephone calls at his home from Shepherd at 

nine or ten o'clock at night before Gilliam left for work and 

asked Shepherd to stop calling him at his home. On the night 

before he discharged Gilliam, Shepherd called the No. 11 Mine 

Office about 10:55 p.m. and Gilliam had not arrived. Shepherd 

called again about 11:10 p.m. and Gilliam had still not arrived. 

Therefore, it was necessary for Shepherd to give his instructions 

about raising the canopy height, installing a traction motor on a 

loading machine, and replacing the cl.utch in a shuttle car to 

Jerry Lewis, one of the three men on Gilliam's maintenance crew. 

Shepherd was advised by Lewis that Gilliam might be at the supply 

house and Shepherd claims he called the supply house but got a 

busy signal and did not call again. Although Shepherd had been 

told not to call Gilliam at his home, Shepherd stated that he 

also called Gilliam's home and got a busy signal there also. 

Consequently, all instructions which Gilliam received on the 

night of April 20, 1980, were relayed to Gilliam by Jerry Lewis. 

(22) Although Jerry Lewis knew that Shepherd had instructed 

the repairmen to use a coupling link about 1-1/4 inch thick, from 

1660 
4 inches to 8 inches wide and about 18 inches long as the stock 

to be welded onto the canopy legs to raise the canopy 3 inches, 

Lewis used the term "chain link" in passing Shepherd's instructions on to Gilliam. Gilliam discussed the raising of the canopy 

legs with Wallace Cornett, now deceased, but whose deposition is 

Exhibit 11 in this proceeding, and Cornett expressed an opinion 

to Gilliam that use of chain links to extend the canopy height 

would weaken it and Cornett said he wouldn't carry out Shepherd's 

instructions because welding a chain link to the legs would 

weaken them. Cornett stated that Gilliam expressed no opinion 

that carrying out Shepherd's instructions would be unsafeo 

(23) Marion Shepherd stated during his direct examination 

that he had instructed Lewis to weld a piece of coupling bar 

measuring 1-1/4 inch in thickness to the bottom of the canopy 1 s 

legs so as to raise it 3 inches. Shepherd claims that welding a 

piece to the bottom of the legs would not have weakened them 

because the joining welds would be down in the sleeves that hold 

the legs on the loading machine. He conceded during crossexamination that the holes in the bottom of the canopy's legs and 

in the top of the canopy's holders were situated so close to the 

top of the holders that the welds would necessarily be outside the 

holderso Shepherd also expressed the opinion that the repairmen 

had simply turned the canopy around so as to place the front legs) 

which were about 4 inches longer than the rear legs, in the rear 

where the increased height was needed. Shepherd was unaware that 

the canopy was wider in the rear than it was in front and that 

the front legs would not fit into the rear holders nor the rear 

legs into the front holders if the canopy were simply turned 

around. Although he conceded that the repairmen would have had 

to cut all four legs off in order to reverse the position of the 

front and rear legs, he nevertheless insisted that the repairmen 

had plenty of time within which to raise the canopy's height. 

He found it inexcusable for the repairmen to have rewelded the 

front legs on straight when they knew while they were welding 

them that they would have to fit into holders which projected at 

an angle. Shepherd said the repairmen could easily have set the 

canopy on the loader and could have spot welded the canopy with 

the legs in proper position and could thereafter have taken the 

canopy off again so that they could have welded the legs or extensions to the legs in a flat position in view of the repairmen's 

claim that they were inept at performing welding while the parts 

to be joined were situated in a horizontal or vertical position. 

(24) Shepherd was also critical of the repairmen for having 

waited until about 3:00 a.m. to begin installing the clutch in the 

shuttle car. Shepherd said he had gone into the mine on Saturday 

and had removed the traction motor from the loading machine and 

had put a new motor in the loader and that the only work remaining 

to be done was to connect the wires and bolt a metal band around 

the motor to hold it in position. He said that no more than l 

1661 
hour, at most, would have been required to finish that work. 

He also said that Hall should not have repaired the lights on a 

bolting machine until the shuttle car had been restored to operating condition because he had given Lewis strict instructions to 

give repair of the loading machine and shuttle car first priority. 

Shepherd said that even if Gilliam and his men could justify not 

having found until 5:30 a.m. that a pump motor, instead of a new 

clutch, was needed for the shuttle car, that Gilliam, at the very 

least, should have called the supply house and ordered the pump 

motor. Shepherd claimed that Gilliam could have ordered the pump 

motor without leaving the section by having called the watchman on 

the sur and asked him to order the motor. As things turned 

out, Shepherd had to order the motor himself on the day shift and 

help install it in order to get the shuttle car working againo 

Shepherd did not personally examine the canopy on the loading 

machine, hut said that since Gilliam had told him that the 

canopy had been left off the loading machine~ he assumed the 

loader was used by the day shift without any canopy on it, or 

that another stand-by loader, not equipped with a canopy, had 

been used. Shepherd was upset about the repairmen's failure to 

the shuttle car fixed because the ether two shuttle cars on 

the section were old and unreliableo 

(25) Shepherd stated that he discharged Gilliam for six 

reasons: (1) Gilliam for a period of about 1 year would fail to 

have equipment in an operable condition at 7:00 a.m., that is, at 

the end of Gilliam's shift; (2) Gilliam did not go into the mine 

early enough or follow on the work closely enough to know whether 

equipment was operable at the end of his shift; (3) Gilliam admitted to Shepherd that he had checked his traps during company 

time to see if he had caught foxes or other wild game, and other 

people, such as Ken Colwell and Lonzo Shepherd, told Shepherd about 

seeing Gilliam hunting at night on company time; (4) Gilliam admitted to Shepherd that he had slept on company time and Shepherd 

had been told at least once by Pearl Campbell, Bill Pennington, 

Dana Eldridge, Ken Colwell, and Johnny Joseph that they had seen 

Gilliam asleep; (5) Gilliam went into the mine so late that he was 

not present to supervise his men when they encountered difficult 

wiring problems which required electrical knowledge which they admittedly did not have; and (6) Gilliam disobeyed Shepherd's orders 

to stop portalling, or reporting for work, at the supply house, instead of reporting for work at the No. 11 Mine Office so as to be 

at the mine where he could go in each night with his three-man crew. 

Instead, Gilliam continued to portal at the supply house so that 

on April 21, 1980, the day of his discharge, Gilliam did not get 

to the underground working section where his men were repairing 

equipment until 2:00 or 2:15 a.m., whereas his men had been there 

since 11~30 p.m., April 20. Shepherd stated that Gilliam's favorite sleeping place was on top of the power center which handles 

7200 volts of electrical current. Shepherd stated that it is 

1662 
against company policy for miners to eat their lunch at the power 

center or otherwise gather in close proximity to it, much less to 

lie down on top of it and go to sleep. 

(26) Although Shepherd conceded that he had permitted 

Gilliam to report for work at the supply house so as to bring 

needed parts to the mine after the start of the third shift, 

Shepherd said he ordered Gilliam to stop portalling at the supply 

house when Shepherd became aware that Gilliam was using the practice of portalling at the supply house as an excuse for not going 

into the mine until 3:00 or 4:00 a.m.. Shepherd says he ordered 

Gilliam to stop portalling at the supply house about 2 weeks before Gilliam?s discharge and that he had not changed that order 

so as to allow Gilliam to resume portalling at the supply houseo 

Shepherd specifically denied Gilliam's claim that he had ever 

asked Gilliam to have canopies installed on all equipment by 

April 18, 1980, and in connection with that work, had told 

Gilliam to report to the supply house as often as necessary to 

get the parts needed to install the canopies. Gilliam claimed 

that one reason for the alleged reversal of Shepherd's order 

about portalling at the supply house was that Shepherd was going 

to be away from work about a week so that he could take his wife 0 

who was suffering from a serious illness~ to the hospitalo 

Shepherd said he doesn't think he took his wife to the hospital 

at all during the week of April 18, 1980, that he never had been 

off for more than 1 day to take his wife to. the hospital in 

Lexington, Kentucky, and that his wife was not suffering from 

a serious illness. 

(27) Shepherd agreed that he had asked Gilliam if he had 

called MSHA inspectors after the power leads to the motor on the 

roof-bolting machine burned out in early April 1980 during 

Gilliam's third shift. Shepherd also stated that he had asked 

some of the men on Shepherd's crew if they had called the MSHA 

inspectors. The time that Shepherd asked the repairmen about 

calling the inspectors occurred one morning when Gilliam and 

his crew were about to get in their trucks to leave and were 

kidding each other about calling the inspectors. Shepherd's 

description of the kidding episode was supported by Dorsey Hall, 

one of the crewmen who testified that he had in a kidding manner 

told Shepherd one day that Gilliam might have called the inspectors. Shepherd denied that he had threatened to fire anyone who called an inspector if he should find out who did it. 

Shepherd also denied that the visit by the inspectors after 

receipt of the complaint about the roof-bolting machine had 

anything to do with Shepherd's discharging Gilliam. 

(28) Dana Eldridge was a belt foreman on the day shift 

at the time of Gilliam's discharge on April 21, 1980. Eldridge 

also was the preshift examiner and reported at the mine from 

4:30 to 5:00 a.m. in order to perform preshift examinations. 

1663 
Eldridge would see Gilliam stretched out on the power box about 

twice a week and often Gilliam would be asleep. Shepherd asked 

Eldridge several times whether he had seen Gilliam asleep in 

the mine or not and Eldridge would give an evasive reply to the 

effect that Shepherd would have to find that out by going into 

the mine himself. Eldridge said he liked Gilliam and did not 

want to tell anyone about the fact that Gilliam was sleeping in 

the mine. Eldridge said, however, that Shepherd had asked him 

about Gilliam's sleeping approximately 6 months before Gilliam 

was discharged. On one occasion, the mine fan was turned off 

and Eldridge was unable to get anyone to answer on the paging 

phoneo Eldridge went into the mine to get the miners out and 

found Gilliam snoring on top of the power box. Eldridge went on 

to the face area and got Gilliam's men out of the mine until it 

was safe for them to return to work. Eldridge also stated that 

Gilliam had once asked Eldridge if he had reported him to anyone 

for sleeping in the mine and Eldridge said he had not at that 

time. On the morning that Gilliam was discharged, Eldridge 

heard Gilliam and Shepherd discussing the equipment and heard 

Shepherd tell Gilliam that they could not go on like this. Although Denton Gross, one of the repairmen on Gilliam's crew, 

stated that he had heard Shepherd say to Eldridge that Shepherd 

would fire anyone who called the MSH:A inspectors, Eldridge denied 

that he had ever heard Shepherd make such a statement. 

(29) Richard Combs was Superintendent of the No. 11 Mine 

on April 21, 1980, when Gilliam was discharged. His office is 

about 9 miles from the No. 11 Mine. Combs made a routine call 

to the No. 11 Mine Office on the morning of April 21, and 

Shepherd told him that he had discharged Gilliam. Later in the 

day Shepherd told Combs that he had discharged Gilliam for leaving equipment down or in an inoperable condition. Combs talked 

to Gilliam on April 22, at which time he told Gilliam he would 

investigate the discharge and let Gilli.am know the outcome of 

his investigation. Combs then talked to Shepherd and Eldridge 

and decided, along with Combs' supervisor, that Gilliam's discharge should be upheld •. Combs called Gilliam on April 23 and 

advised him that the discharge was being upheld. Combs stated 

that Gilliam did not discuss the canopy with him. The first 

time Combs became aware of Gilliam's allegations about the 

canopy was when an MSHA investigator named Edward Morgan mentioned it to him. 

(30) Everett Kelly, who is Combs' supervisor and General 

Mine Superintendent, became aware that Shepherd had discharged 

Gilliam on April 21, 1980, when he received a brief phone call 

from Shepherd advising Kelly of that fact. A short time later, 

Gilliam came by in person and told him that he and Shepherd had 

had words and that Shepherd had discharged him. Kelly denies 

that Gilliam at that time, April 21, mentioned the canopy, or a 

hazard to the miners, or anything about calling an MSHA inspector. 

1664 
Kelly assigned Combs to investigate the discharge and he and 

Combs decided to uphold the discharge after Combs had talked 

to Shepherd and Eldridge and had been told that Gilliam left 

the loader and shuttle car inoperable on April 21 and had 

not gone into the mine until 2:00 a.m •• Kelly was told by 

Gilliam about the allegedly unsafe raising of the canopy and 

other claimed violations on April 29, 1980, when Gilliam came 

to Kelly's office and provided additional allegations, including Gilliam's claiming that he had told Shepherd that if 

Shepherd discharged Gilliam, Gilliam would take Shepherd with 

him. Kelly denies that he ever asked Gilliam whether he had 

called the MSHA inspectors. Kelly remembered that a watchman 

named Caudill had called him at home one night to report that 

Gilliam was sleeping in his truck. Kelly told Caudill to call 

the Chief Watchman named Stidhams, which Caudill did. By the 

time Stidhams arrived at the mine, Gilliam was awake. 

(31) Frank Durbin is respondent 7 s Safety Director and was 

employed by MSHA, MESA and the Bureau of Mines for 10 years 

before becoming Safety Director. It was his opinion that adding a piece of steel to the legs as recommended by Shepherd 

would not have prevented the canopy from passing the stress 

test of 18,000 pounds or 15 pounds per square inch required 

by 30 C.F.R. § 75.1710-l(d). 

(32) Dale Junior Colwell is a cutting machine operator 

at the No. 11 Mine and was such an operator on April 21, 1980, 

when Gilliam was discharged. He testified that his cutting 

machine was inoperable only on one occasion that he can recall 

and that on that occasion, Gilliam remained at the mine and 

worked on the day shift long enough to repair his cutting 

machine. He believes that Gilliam and his crew did very good 

work in keeping equipment in operable condition. Colwell was 

a rebuttal witness, but he did not controvert Shepherd's 

testimony to the effect that on one occasion the repairmen on 

Gilliam's crew had improperly hooked some wires on the cutting 

machine so that the cutting machine would not run. On that 

occasion, Shepherd had to rewire the equipment himself. It was 

Shepherd's contention that Gilliam could have wired the cutting 

machine properly if he had just gone into the mine that morning 

and checked out the cause for the cutting machine's failure to 

operate. 

(33) Robert Begley has been a shuttle car alternate 

driver and general laborer at the No. 11 Mine. He testified 

that the equipment now being used is not maintained as well at 

the present time as it was when Gilliam was maintenance foreman. He finds the shuttle car frequently inoperable now and 

seldom, if ever, saw them inoperable when Gilliam was maintenance foreman. He said the mine made 10 cuts a day when 

Gilliam was maintenance foreman, whereas now the mine only 

1665 
runs from three to five cuts. Begley conceded that the coal 

height is only 47 inches now as compared to 60 or 80 inches 

at the time Gilliam was maintenance foreman. He also stated 

that the shuttle cars now being used are different from the 

ones that were being used when Gilliam was maintenance foreman. Begley was presented as a rebuttal witness but his testimony only tends to confirm Shepherd's contention that the 

reason he was so upset when Gilliam failed to repair the B-23 

shuttle car on the day of Gilliam's discharge was that the 

B-23 was the only really good shuttle car they had and that 

the other two were very unreliable and frequently were out 

of order. The B-23 car is not in the section where Begley 

works. 

In C.C.C.-Pompey Coal Co., Inc., 2 FMSHRC 1195 (1980), and in Council 

of Southern Mountains v. Martin County Coal Corp., 2 FMSHRC 3216 (1980), 

the Commission held that a judge 1 s bench decision is not a final decision 

until it has been issued the Commission's Executive Director pursuant to 

29 C.F.R. § 2700.65(b). In the Pompey case, the Commission held that it is 

error for a judge to issue a bench decision in final form without considering any applicable decisions which have been issued by the Commission between the time the bench decision was rendered and the time the decision 

is issued in final form under section 2700.65(b)o 

The above findings of fact have been reproduced, with minor changess 

as they were given at the hearing which ended on June 29, 1981, but the 

complete transcript in this proceeding did not become available until 

September 1, 1982, which was 1 year and 2 months after the bench decision 

was rendered. In the long interim between the rendering of the bench 

decision and the issuance of this decision in final form, the Commission 

has decided several cases which should now be considered in the substantive portion of my decision which gives the reasons for my conclusions 

that complainant failed to prove that his discharge was a violation of 

section 105(c)(l) of the Act. In order to give proper consideration to 

all interim decisions which have been issued since the bench decision was 

rendered, I am hereby vacating everything in the bench decision following 

the 33 findings of fact set forth above and am· inserting the rationale 

which is hereinafter given. 

The outcome of this revised decision is the same as the result 

reached in the bench decision, but the revised decision considers the 

Commission's holdings in Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 

(1981), and Elias Moses v. Whitley Development Corp., 4 FMSHRC ~~­

Docket No. KENT 79-366-D, decided August 31, 1982, and follows the 

specific guidelines which were given by the Commission in decisions 

issued after I rendered the bench decision. In Dunmire and Estle v. 

Northern Coal Co., 4 FMSHRC 126 (1982), the Commission explained why 

it believes that the court's decision in Consolidation Coal Co. v. Ray 

Marshall, 663 F.2d 1211 (3rd Cir. 1981), reversing the results reached 

by the Commission in Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(1980), did not change the Commission's analysis of the parties' burdens 

of proof which were formulated by the Commission in its Pasula decision. 

1666 
Therefore, even though the results reached by the Commission in the 

Pasula case were reversed by the Third Circuit in Consolidation Coal, the 

Commission still expects its judges to apply the Commission's Pasula holding set forth below (2 FMSHRC at 2799-2800): 

We hold that the complainant has established a prima facie 

case of a violation of section lOS(c)(l) if a preponderance of the 

evidence proves (1) that he engaged in a protected activity, and 

(2) that the adverse action was motivated in any part by the protected activityo On these issuess the complainant must bear the 

ultimate burden of persuasiono The employer may affirmatively defend, however, by proving by a preponderance of all the evidence 

that, although part of his motive was unlawful~ (1) he was also 

motivated by the miner's unprotected activities 9 and (2) that he 

would have taken adverse action against the miner in any event for 

the unprotected activities alonec On these issues 9 the employer 

must bear the ultimate burden of persuasiono It is not sufficient 

for the employer to show that the miner deserved to have been 

fired for engaging in the unprotected activity; if the unprotected 

conduct did not originally concern the employer enough to have resulted in the same adverse action 9 we will not consider ito The 

employer must show that he did in fact consider the employee deserving of discipline for engaging in the unprotected activity 

alone and that he would have disciplined him in any event. 

[Emphasis in original.] 

The complaint in this proceeding alleges two violations of section 

105(c)(l) of the Act which provides, in pertinent part, as follows: 

No person shall discharge or in any manner discriminate 

against 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 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 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. 

The First Alleged Violation of. Section lOS(c)(l) 

The first question to be considered is whether complainant was discharged because he made a complaint about safety to the operator's agent. 

The safety complaint which complainant claims to have made is based on the 

allegation that complainant had stated to Shepherd, complainant's supervisor, prior to his discharge, that increasing the height of the canopy on 

1667 
respondent's loading machine by welding pieces of metal to the canopy's 

two rear legs, as Shepherd had suggested, would be unsafe and in violation of the State and Federal regulations pertaining to installation of 

canopies on self-propelled electric face equipment (Finding Nos. 5, 8, 

15, and 20, supra). 

Respondent claims that complainant was primarily discharged for failing to have equipment in an operable condition by 7 a.m. which was the 

time complainant's shift ended and the time the day shift begano The two 

pieces of equipment which were inoperable on the morning of April 21, 1980, 

the date of complainant's discharge, were the loading machine and the B-23 

shuttle caro Respondent contends that complainant never mentioned, prior 

to his discharge, that raising the canopy on the loading machine, in the 

manner Shepherd had suggested, would adversely have affected the safety of 

the operator of the loading machine (Finding Naso 18? 19 22 0 29 0 and 30" 

supra)o 

The last shift complainant worked prior to his discharge began at 11 

p.m. on Sunday, April 20, 1980. Shepherd had called the Noo 11 Mine before 

and after 11 p.mo and had been unable to talk to complainanto Therefore 0 

he gave his istructions about the repair of equipment to Lewis who was one 

of the three repairmen who worked under complainant's supervisiono Shepherd 

asked Lewis to tell complainant that the traction motor in the loader needed 

to be replaced and that the canopy on the loader needed to be raised about 

3 inches. Shepherd suggested that the back legs of the canopy be raised by 

welding to them pieces of metal which could be obtained from a coupling 

link which Shepherd had left outside the mine office near the 7,200-volt 

power box. Shepherd also told Lewis that a new clutch would have to be 

installed in the B-23 shuttle car (6/26, Tr. 6-7; 167-168). J:./ 

It is undisputed that Lewis passed on to complainant the instructions 

which he had received from Shepherd, except that Lewis seems to have referred to the kind of metal which Shepherd had mentioned for use in raising the canopy as a "chain" link, instead of a "coupling11 link (6/24~ Tr. 

23; 189; 6/25, Tr. 9; 41; 64; 86; 105; 141-144; 159-160). Lewis claims 

to have found the coupling link prior to going into the mine and said that 

it was a flat piece of metal about 1-1/2 inch thick, 6 to 8 inches wide, 

2/ There were 5 different days of hearing in this proceeding. A reporter 

would normally have made a separate volume of transcript for each day's 

hearing, but the page numbers would have run consecutively through all 

five volumes. The reporter in this proceeding made a separate volume of 

transcript for each day, but began renumbering the pages of each day of 

transcript with the figure "1". Therefore, it is necessary to prefix 

each reference to a transcript page with the date shown on the front of 

the volume in which that transcript page may be found. To find a reference such as "6/26, Tr. 6-7", one would find the volume having the date 

of June 26, 1981, on it and turn to pages 6 and 7 of that volume of 

transcript. 

1668 
and 14 to 18 inches long (6/25, Tr. 86; 143). Lewis testified that even 

if complainant had initially misunderstood what kind of metal Shepherd had 

intended for the repairmen to use in raising the canopy, no confusion 

about a chain link verses a coupling link should have existed after complainant and his three repairmen had discussed the raising of the canopy 

when complainant finally reached the working section about 2:15 a.m. on 

Monday, April 21, 1980 (6/25, Tr. 144; 6/24, Tr. 28). 

Complainant testified that he told Lewis not to do any work on the 

canopy until he had arrived underground to discuss the canopy with Lewis 

(6/24, Tr. 22)o Although Lewis fails to recall that complainant gave 

him any such instructions (6/25, Tr. 112), one of the repairmen~ Grosss 

testified that Lewis told them that.complainant did not want any work done 

on the canopy until complainant had arrived on the section (6/25; Tr. 162)0 

Complainant did not arrive on the section until Lewis brought him in on a 

rail car about 2:15 aomo (6/24; Tr. 28)o Shortly thereafter all four men 

discussed the method which should be used to raise the canopy and, although 

complainant and Gross claim that it was complainantvs decision (6/24, Tr. 

34; 6/25, Tr. 168), while the other two repairmen, Lewis and Hall, say that 

complainant left the decision up to the repairmen (6/25~ Tro 48; 91; 112 

135), the men unanimously concluded that the best way to raise the canopy 

was to swap the position of the canopy 1 s legs by moving the front legs to 

the rear and the rear legs to the front because the front legs were longer 

than the rear legs (6/24, Tr. 34; 6/25, Tr. 90). One reason that the repairmen decided to switch the legs' position was that they had put the 

canopy on in the first place and had incorrectl.Y installed the canopy with 

the shortest legs in front (6/24, Tr. 53; 6/25, Tr. 145). Therefore, they 

concluded that the canopy would probably meet Shepherd's approval if they 

simply reinstalled the canopy in the manner it should have been installed 

in the first instance. 

Since the canopy was wider in the rear than it was in front (6/24, 

Tr. 54), and since the holders for the canopy's front legs protruded upward from the loading machine at an angle (6/24, Tr. 56; 6/25. Tr. 90), 

the canopy could not be raised in the rear simply by taking it off and 

turning it around. Therefore, Lewis cut off all four of the canopy's 

legs with a cutting torch. When Lewis rewelded the legs to the canopy, 

he forgot to allow for the angle of the holders for the front legs and 

rewelded all four legs to the canopy in a straight position (6/25, Tr. 

90). The result was that the rear legs went into the rear holders, but 

the front legs would not go into the front holders. Consequently, all 

three repairmen and complainant worked from about 6 a.m. to quitting time 

at 6:45 a.m. 3/ in an effort to get the front legs into their holders, 

but they never did succeed in doing so (6/24, Tr. 46-47; 6/25, Tr. 19; 

170). 

3/ Although the actual quitting time was 7 a.m., the miners left the 

7;nderground working section at 6:45 a.m. so as to be outside the mine 

and ready to go home by 7 a.m. 

1669 
Complainant's repairmen also failed to have the B-23 shuttle car 

ready to operate at the time their shift ended on April 21, 1980 (6/24, 

Tr. 40; 62). Shepherd had instructed the repairmen to replace the clutch 

on the shuttle car. None of the repairmen began to work on the shuttle 

car until about 3 a.m. when Hall started working on it (6/24, Tr. 24; 35; 

6/25, Tr. 17; 44). Hall found, after replacing the clutch, that the 

shuttle car still would not operate. He then removed the pump motor and 

found that it had a stripped pinion (6/24, Tr. 39; 6/25, Tr~ 17). 

He reported the need for a new pump motor to complainant about 5:30 

a.m., but complainant concluded that it would not be possible to obtain 

a new motor from the supply house for the shuttle car in time for the 

pump motor to be installed during complainant 1 s shift 9 so complainant did 

not order a pump motor so that one could be delivered from the supply house 

to the Noc 11 }fine for subsequent installation by other repairmen on the 

day shift. Complainant excused his failure to order the pump motor by 

claiming that he would have had to go outside the mine to order the motor 

which would have taken 20 minutes and then he would have had to return 

underground which would have taken another 20 minutes. Since he did not 

know the motor was needed until 5:30 a.m. 9 he would not have been back 

into the mine until about 6 a.m.o He claims that he needed to his 

men reinstall the canopy and that he believed the canopy work was more 

important than ordering the pump motor for the shuttle car (6/24 0 Tr ~-3) o 

Shepherd's testimony at the hearing contained very convincing reasons 

to support his dissatisfaction with the way complainant had performed his 

duties on the morning of April 21, 1980 (6/27, Tr. 103-104). Shepherd was 

a supervisor who actually did repair work and who knew exactly how long it 

should take for work to be done. No one controverted Shepherd's testimony 

to the effect that he had gone into the mine and worked on the loading 

machine on Saturday, April 19, 1980 (6/26, Tr. 5; 21; 157). Shepherd and 

another repairman not on complainant's crew had removed the old motor on 

the loading machine and had placed the new motor on the loader, but Shepherd 

ran out of time and did not install the packing gland on the new motor, or 

reattach the power wires, or reinstall a band which holds the motor in a 

secure position (6/26, Tr. 21; 147; 201; 6/27, Tr. 104). 

In Shepherd's opinion, no more than one of the repairmen was needed 

to finish installation of the motor and he believed that 1 hour would have 

been ample time for completing that work (6/27, Tr. 101-102). In the 

meantime; Shepherd said that another repairman could have been working on 

replacing the clutch in the shuttle car (6/27, Tr. 103). Since the repairmen arrived on the section at 11:30 p.m. on April 20, 1980, there is 

reason to believe that they could easily have completed installing the 

motor on the loading machine by 2 a.m., could also have replaced the clutch 

in the shuttle car by 2 a.m., and could easily have found by 3:00 a.m. that 

a pump motor was needed for the shuttle car (6/27, Tr. 97-99). 

Shepherd's belief that complainant and his men had failed to do their 

jobs properly on the morning of April 21, 1980, is thoroughly supported by 

the repairmen's own testimony. All of the repairmen gave different testi1670 
mony about some details of what happened on their shift on April 21, but 

they all agreed that all three of them worked on installation of the motor 

in the loading machine until about 2 a.m. at which time Lewis went out in 

a rail car to provide complainant with a means of transportation into the 

mine. All of them agree that installation of the motor on the loading 

machine was not completed until after complainant had arrived underground 

on the section at about 2:15 a.m. (6/24, Tr. 29; 6/25, Tr. 12; 88-89; 110-

111; 149; 163-164). None of them did any work on anything but the loading 

machine until about 2:30 a.m. when Hall went to the roof-bolting machine 

and replaced a light (6/25, Tr. 13). Then about 3 a.m. Hall began working on the installation of the clutch in the B-23 shuttle car (6/24, Tro 

35; 6/25, Tro 17)o By 5:30 a.m. he had reported to complainant that he 

needed a pump motor (6/24 9 Tro 42)o 

It is obvious, therefore 9 that Hall had installed the clutch and 

discovered that he needed a pump motor within 2-1/2 hours after he began 

working on the shuttle car. If Hall had started on the shuttle 

car as soon as he went underground, as Shepherd believed he should have 

done, Hall would have known by 3:00 a.m., at the latest, that he needed 

a pump motor for the shuttle caro Ricky Baker, the supply clerk, testified that he could have had a pump motor delivered to the Noo l Mine 

within 30 to 45 minutes after receiving a request for one (6/2~- 9 T:r. 281 b 

If complainant had made a request for the pump motor 3 aamc? it could 

have been delivered to the Noo 11 Mine and could easily have been installed before the end of the shift at 6:45 a.m.o 

Shepherd also rejected complainant's excuse for not having at least 

ordered the pump motor at 5:30 aom. when he was told by Hall that it was 

needed. Shepherd testified that complainant would not have had to use a 

half hour to go in and out of the mine to order the pump motor because, 

according to Shepherd, all complainant would have had to do to order the 

motor would have been to call outside and have the night watchman, 

Caudill, order the pump motor from the supply house (6/27, Tr. 121). 

Moreover, even complainant's excuse for not ordering the motor is defective because he could have gone out and ordered the motor at 5:30 a.m.~ 

when he knew the motor was needed, and could have been back into the mine 

by 6:10 a.m., after personally ordering the motor. Inasmuch as complainant's own testimony shows that he did not do a single thing to help raise 

the canopy until 6 a.m., he could have gone out and ordered the motor and 

still have been back in the mine in time to begin working on the canopy 

at approximately the same time he actually did begin to work on it. 

As indicated above, the primary reason given by Shepherd for discharging complainant was that complainant had been leaving equipment 

"down", or inoperable, at the end of his shift. Complainant's counsel 

sought to discount Shepherd's testimony as to inoperable equipment by 

arguing that Shepherd's testimony is less credible than complainant's 

testimony. While it is true that Shepherd was unable during crossexamination to give the exact dates on which complainant had left equipment inoperable, it is an undisputed fact that two pieces of equipment, 

1671 
the loading machine 4/ and the B-23 shuttle car, were left in an inoperable condition at the end of complainant's shift on April 21, 1980, the 

day complainant was discharged for failure to perform his job. It was 

also uncontroverted that complainant's repairmen failed to wire a cutting 

machine properly a few weeks before his discharge (6/26, Tr. 18-19). It 

was necessary for Shepherd to rewire the cutting machine on the day shift 

while 14 to 16 miners were paid to wait while the machine was rewired. 

Shepherd testified that complainant was competent in electrical matters 

and that he knew that if complainant had been with his men that morning, 

he could have made certain that the cutting machine was properly wired 

(6/26, Tro 19; 61; 109; 156)0 Although the miners were exceedingly unwilling to say anything at the hearing which was in any way critical of 

any other miner, at least two miners indicated that there was a hostile 

relationship between Shepherd and complainant (6/24, Tro 236; 6/25, Tro 

152) and one of the repairmen testified that he did not like to talk to 

Shepherd and avoided doing so when possible (6/25, Tro 8l)o 

Moreover, it is significant that two of the repairmen, Hall and 

Lewis, testified that Pearl Campbell, the section foreman on the day 

shift, reported them for leaving equipment in an inoperable condition 

when, in their opinion, it was not their fault (6/25, Tro 39-41; 60; 

127)0 Hall claimed that Campbell would report equipment as being inoperable to excuse his failure to produce as much coal as he thought was 

required of him (6/25, Tr. 62). Shepherd testified that complainant 

would report that all equipment was operable, but he would receive calls 

from underground that equipment was not operable (6/26, Tr. 54; 161-162; 

6/27, Tr. 59). Since Shepherd personally went underground every day and 

frequently repaired equipment himself, there is hardly any way that Campbell could have falsely claimed that equipment was inoperable just to 

conceal his own deficiencies as a foreman (6/26, Tr. 164). The testimony 

discussed above supports my conclusion that Shepherd's testimony about 

complainant's leaving equipment in an inoperable condition is more credible than complainant's denial that he frequently left equipment inoperable. 

Another aspect of the repairmen's testimony which requires some discussion is that they were definitely on the defensive throughout their 

testimony. They realized that they had not performed well on the morning 

of April 21, 1980. In all probability, they had done almost nothing between the time they went underground and the time complainant came into 

the mine about 2:15 a.m •• That would explain why all of them had to 

claim that they were working on installation of the motor on the loading 

machine until 2:30 a.m. (6/24, Tr. 24-33; 6/25, Tr. 9-13; 88-89; 162-166). 

Gross was so ill at ease about the amount of work he had done that night 

that he testified that he had helped Hall install the clutch on the 

!:!../ Since the repairmen had finished installing a motor in the loading 

machine, the only defect in the loading machine was that the front canopy 

legs were not secured in their holders. The day-shift operator ran the 

loader in that condition, but the second-shift operator refused to do so 

(6/26, Tr. 180; 183; 6/25, Tr. 72; 76; 146). 

1672 
shuttle car and had helped remove the pump motor from the shuttle car 

(6/25, Tr. 171; 182-183). Gross is almost certainly wrong in so claiming because complainant and Hall both testified that only Hall worked on 

the shuttle car at any time during the morning of April 21 and that Gross 

worked at no place other than at the loading machine where he helped 

Lewis cut off the legs on the loading machine's canopy and helped in rewelding the legs (6/24, Tr. 32; 35; 42; 6/25, Tr. 13-14; 17). Gross' 

credibility was further eroded when he testified that "we" held the legs 

while Lewis welded them (6/25, Tr. 201). If Gross had been working with 

Hall at the shuttle car, no one would have been available at the loading 

machine to hold the legs while Lewis welded them. 

It should be noted that Lewis did nothing from 2:30 a.mo until 6 a.m. 

other than cut off the canopy 1 s legs and reweld them (6/24, Tr. 32; 44; 

6/25, Tr. 14; 90-91). Each canopy leg was 1-1/4 inch thick and 4 inches 

wide. Shepherd correctly stated that no more than 10 minutes~ at most 9 

would have been required to cut each of the legs off with a cutting torch 

(6/27, Tr. 91). That means that Lewis should have had the legs cut off 

by 3:40 a.m., assuming he began cutting on them at 3 a.m.. It is incredible to think that it took Lewis and Gross about 2-1/2 hours to reweld the 

four 4-inch legs to the canopy's top. Yet that is all that Lewis claims 

to have done between 3 and 6 a.moo As indicated above~ Gross was so ill 

at ease about his role between 3 and 6 a.m. that he testified that he had 

assisted Hall in installing the clutch and removing the pump motor on the 

shuttle car. Gross was so confused about what he did that morning that he 

even testified at one point that he had installed a pump motor on the 

shuttle car (6/25, Tr. 182-183). Yet he later testified correctly that 

the shuttle car wouldn't run at the end of the shift because it needed a 

pump motor (6/25, Tr. 188). Finally, Gross contradicted himself so much 

about the time that event~ were alleged to have occurred on the morning 

of April 21, that complainant's counsel, who had called Gross as a witness~ 

had to have Gross explain on redirect that he was confused about the times 

when events occurred during the morning of April 21 (6/25, Tr. 195). 

It is true that complainant, Gross, and Hall testified that they spent 

about an hour trying to get the loading machine unstuck but never were able 

to do so (6/24, Tr. 32; 6/25, Tr. 13; 165). Even if they did spend an hour 

trying to get the loading machine unstuck, they still did not explain satisfactorily how they spent their time during their shift on April 21. Also, 

their statements as to the depth of the mud are so inconsistent that it is 

not possible to form any sound conclusions as to how much actual trouble 

they had with mud and water. Complainant, for example, gave three different depths for the mud and water. He first said that the mud and water 

were 2 or 3 feet deep (6/24, Tr. 31). He then reduced the depth of the mud 

and water to 8 to 10 inches (6/24, Tr. 34). He finally increased the depth 

of the mud and water to 12 to 14 inches (6/24, Tr. 183). Complainant contended that the repairmen had to put down header boards to work on in order 

to stay out of the mud and water (6/24, Tr. 33). 

Lewis is the repairman who had to crawl under the loader to obtain 

slack wire for rewiring the new motor, yet he said that the mud was over1673 
come by laying down brattice cloth (6/25, Tr. 150). It is uncontroverted 

that Lewis is the one who crawled under the loader to get the wire, so he 

undoubtedly knew better than anyone else how much mud and water were on 

the mine floor. It is certain that brattice cloth could not keep a person 

out of mud and water if it had been as deep as complainant testified that 

it was. 

A discussion is also required as to the merits!}_/ of complainant's 

contention that it was unsafe to raise the height of the canopy by welding pieces of metal to the bottoms of the canopy's two rear legs (6/26 9 

Tro 7)o The only safety question which complainant allegedly raised 

with respect to Shepherd's suggested method of raising the canopy was 

whether the repairmen could achieve a high quality of weld when they 

added pieces to the canopy 1 s rear legs (6/24, Tro 60; 129)0 Although 

the repairmen believed that it would have been unsafe to raise the canopy 

by welding pieces to the legs~ they also said that the safety aspects of 

adding metal pieces to the legs related to the quality of the welds made 

to attach the metal pieces to the s (6/25, Tro 15; 112; 145; 202)0 

Only one of the repairmen~ Gross, claimed to have heard complainant 

say that it would have been unsafe to weld pieces to the canopy's 

(6/25, Tro 185) and his testimony is filled with inconsistent statements 

and is less credible than the testimony of the other two repairmeno Hall 

testified that complainant left it up to Lewis to raise the canopy the 

way Lewis thought was safest (6/25, Tro Sl)o Lewis specifically testified that complainant did not express a belief that welding pieces to the 

canopy s legs would be unsafe (6/25, Tr. 92). The repairmen said that 

the reason they doubted their ability to achieve a high quality of weld 

was that none of them had the expertise to weld in the horizontal or vertical position !i/ which would have been required to weld pieces to the 

5/ I recognize that if a miner, in good faith, erroneously raises a 

question about safety and is discharged because he mistakenly raised a 

safety issue, it would be a violation of section 105(c)(l) for his employer to discharge him for raising a false question of safety if he 

sincerely believed the safety question was valid when he raised it. 

In this proceeding, however, complainant's act of sitting down at the 

power center for 3 hours out of sight of the work being done on the 

canopy shows that complainant was not really concerned about the quality of the welding being done on the canopy. Complainant 1 s obvious indifference to the actual welding process casts a great deal of doubt on 

complainantvs contention that he raised a safety issue about the canopy 

at the time he was discharged on April 21, 1980. 

6/ The repairmen would have been using an electric welding machine which 

welds by fusing metal from an electrode into two pieces of metal as the 

electrode is passed along the crack between the two pieces of metal which 

are being joined. A puddle or pool of liquid metal is formed at the tip 

of the melting welding rod. When welding is done in a flat position, the 

liquid pool remains steady, but when the two pieces of metal are raised 

to a horizontal or vertical position, the liquid pool will run off the 

1674 
legs while the canopy remained in an upright position on the loading 

machine (6/25, Tr. 145; 168; 201). 

I was inclined to agree with the repairmen that there was no way for 

them to weld the legs so as to obtain a thorough fusion of the metal 

(6/27, Tr. 90), until Shepherd explained in his testimony that all the 

repairmen would have had to do in order to weld pieces to the legs, while 

using a flat welding position, would have been to have placed the canopy 

on the loading machine just long enough to spot weld the legs sufficiently 

to know where they would have to be attached (6/27, Tr. 93). Then the 

canopy and legs could have been taken off and welded with the legs situated in a flat position. Shepherd's suggestion becomes quite feasible 

and logical for nonexpert welders tu use when one considers that the longest legs were only 24 inches long and the shortest legs were only 20-3/4 

inches long (6/24, Tr. 49). Such short legs could easily have been held 

in place for spot welding. 

Complainant conceded during his testimony that there was no essential 

difference between the method suggested by Shepherd for raising the legs 

and the method which he had recommended because, regardless of which method 

they used, it was necessary to cut off the legs and reweld them (6/24~ Tro 

189). The competency of the welders came into play just as much in switching the legs from the front to the back as it would if they had merely 

welded pieces to the bottoms of the legs as Shepherd had suggestedo 

Actually, Shepherd's method was superior to the one allegedly recommended 

by complainant because, if they had followed Shepherd's suggestion, only 

two welds on the two rear legs would have been ·required, whereas, under 

complainant's method, it was necessary to make one weld on each of the four 

legs, or a total of four welds. 

It should also be pointed out that Lewis must have been able to make 

very thorough welds because the repairmen used two sets of jacks in trying 

to force the two front legs into their holders after Lewis had welded the 

front legs in a straight position (6/24, Tr. 46; 6/25, Tr. 170). The 

testimony shows that Lewis' welds did not crack or break under the stress 

of jacks applied to the sides of the legs. Therefore, the welds which 

were made undoubtedly achieved an excellent fusion and there is no reason 

to believe that there would have been anything unsafe about welding a 

couple of pieces of metal to the bottoms of the two rear legs, as Shepherd 

had suggested. 

Complainant's attorneys argue that Kelly's and Combs' testimony is 

not credible insofar as they deny that complainant mentioned any safety 

fn 6, continued 

metal, instead of fusing into the metal, until the welder has learned to 

keep his welding rod sufficiently in advance of the liquid pool to allow 

just enough cooling to prevent the pool from running off the pieces being 

welded. An experienced welder can make a thorough fusion in a horizontal 

or a vertical position. See, ~._a., J. Giachino, and W. Weeks, Welding 

Skills and Practices, American Technical Society, Chicago, IL 60637, 

1976, Chapter 4, pages 42-53. 

1675 
aspects of raising the canopy when he went to them in person to ask that 

they reverse Shepherd's action of discharging him. When that allegation 

is examined in light of the facts revealed by the preponderance of the 

evidence, I find that Kelly's and Combs' testimony is more credible than 

complainant's. 

The testimony of complainant and all three of his crewmen shows that 

complainant sat down at the power box from about 3 a.m. until 6 a.m. without attempting in any way to supervise the work which Lewis and Gross were 

doing on the canopy (6/24, Tr. 28; 32; 44-46; 6/25, Tr. 12, 19, 48; 52; 

170; 184). The only basis complainant had for claiming that Shepherd's 

suggestion for raising the canopy was unsafe was that satisfactory welds 

might not have been achievable. Yet complainant made no effort whatsoever to supervise the canopy work until he went to the loading machine 

about 6 a.m. and found that the welding had been completed but that the 

front legs would not go into their holders. I believe complainant's 

actions during his shift support the statements of respondent 7 s supervisory ~~tnesses who say that complainant did not raise any safety claims 

about Shepherd's suggestions for rais the canopy until after Shepherd 

had discharged complainant for leaving equipment in an inoperable condition on the morning of April 21 and until after Kelly had advised complainant that Shepherdvs discharge was being upheldo 

Shepherd and complainant disagree as to what each of them said on 

the morning of April 21 when complainant was discharged. Shepherd claims 

that complainant approached Shepherd at the end of complainant's shift 

just as if he were Shepherd's boss, by telling Shepherd that Shepherd had 

better get his light and go into the mine to repair a loading machine and 

a shuttle car which were "down", or inoperable. Shepherd claims that when 

he asked complainant what was wrong with them, complainant said that the 

canopy was off the loader and the shuttle car needed a pump motor. 

Shepherd claims that he asked complainant if he had ordered a new pump 

motor to which complainant answered "No". Shepherd states that when he 

pointed out to complainant that the B-23 shuttle car was the only reliable 

car they had, complainant became angry and stated that if his work was not 

satisfactory, he would just have to quit. Shepherd then says that he told 

complainant that as of that time, complainant no longer worked for respondent (6/26, Tr. 8-9; 30; 32; 192). 

Complainant's version of the events leading up to the discharge is 

that he told Shepherd that the canopy work had not been finished and that 

the shuttle car required a pump motor. Complainant also states that he 

told Shepherd it would have been unsafe and in violation of the mining 

laws for him to have raised the canopy by welding pieces to its legs as 

Shepherd had suggested. Complainant agrees that he stated that if his 

work was not satisfactory, he would quit and that Shepherd told him that 

as of that time complainant no longer worked for respondent (6/24, Tr. 

61-62). 

A part of complainant's version of the discharge conversation was 

corroborated at the hearing by the testimony of Willie Pennington, a pump 

1676 
man, who claims that he heard Shepherd ask complainant about the canopy 

but doesn't know what else was said other than that he did hear complainant suggest that he might have to quit and Shepherd's statement to the 

effect that complainant was no longer working there as of that time (6/24, 

Tr. 230). It is difficult to understand how Pennington can be so certain 

as to some things and not know what was said as to other aspects of the 

conversation. Inasmuch as Pennington has known complainant for 10 years 

and was obviously trying to testify in coNplainant's favor, it is more 

probable than not that complainant did not mention the safety aspects of 

raising the canopy and that Pennington preferred to forget certain parts 

of the conversation rather than to testify unfavorably on complainant's 

behalf (6/24, Tro 23l)o 

In view of the fact that Shepherd had obtained a piece of metal on 

Saturday for welding to the canopy's legs and had left it outside the 

mine for use in raising the canopy ( 6/26 ~ Tr Q 5; 16 7) 9 and in view of the 

fact that Shepherd had made a call to the mine on Sunday night to suggest 

how the canopy should be raised (6/26, Tr. 6), it is unlikely that Shepherd 

failed to ask complainant some questions about the canopy. On the other 

hand, there is nothing in the record to corroborate complainant 1 s contention that he discussed with Shepherd the fact that the canopy could not be 

safely raised in the manner suggested by Shepherd. The evidence also shows 

that complainant and Shepherd could not have had a detailed discussion 

about the canopy because Shepherd did not realize that the canopy was wider 

in the back than it was in front and Shepherd thought the repairmen had 

tried to raise the canopy's height by merely turning it around so that the 

front legs were in the rear where the increased height was desired (6/26, 

Tr. 22; 180; 205; 6/27, Tr. 89). Any detailed discussion by complainant 

of the way they had tried to raise the canopy would certainly have made 

Shepherd aware of the kind of work which had been done on the canopyo 

After he had discharged complainant, Shepherd ordered a new pump 

motor for the shuttle car and went underground and helped install it 

(6/26, Tr. 157). Afterwards Shepherd had to do some work on the conveyor 

belt and did not personally examine the canopy on the loading machine 

(6/26, Tr. 178-179). Although the loading machine was used by the first 

shift with the front legs out of the holders just as complainant had left 

it (6/26, Tr. 183), Shepherd assumed that the loader had been operated on 

the first shift either with the canopy removed or that the first shift 

had used a stand-by loading machine which did not have a canopy on it 

(6/26, Tr. 194; 197; 203). The operator of the loading machine on the 

second shift refused to run the loader with the front legs unattached and 

new legs were obtained and completely installed by the repairmen on the 

second shift, except for a slight amount of welding which was completed 

by the third-shift repairmen on April 22, 1980 (6/25, Tr. 72; 76; 146; 

6/26, Tr. 180). 

Since Shepherd stated that he had discharged complainant for leaving 

two pieces of equipment in an inoperable condition, it must be concluded 

that part of the reason for complainant's discharge was complainant's 

failure to have the canopy in an operable condition. The foregoing con1677 
clusion is necessarily true because the repairmen on complainant's crew 

had finished replacing the traction motor on the loading machine. Therefore, the only reason that complainant had for telling Shepherd that the 

loading machine was "down", or inoperable, was the fact that the front 

legs of the canopy had not been secured properly. Nevertheless, there is 

a vast difference between discharging a foreman for failure to have equipment operable and discharging him for stating that the equipment was left 

in an inoperable condition because it would have been unsafe to have 

raised the canopy in the manner suggested by his supervisor, especially 

when, as has been shown above, the method adopted by complainant to raise 

the canopy was just as defective from a safety standpoint as the method 

suggested by Shepherd, that is, both methods were equally safe or unsafe, 

as the case may have been, because both methods depended on the thoroughness or quality of the welding done on the by the repairmen. 

I believe that the foregoing discussion shows beyond any doubt that 

complainant completely failed to the first test set forth by the 

Commission in Fasula, supra" Specifically, complainant failed to establish by the preponderance of the evidence that he engaged in a protected 

activity with respect to refusing to raise the canopy in what he believed 

to be an unsafe manner. The preponderance of the evidence shows that complainant was actually discharged for fail to have equipment in an operable condition, rather than for stating that the canopy had not been 

raised because it would have been unsafe to raise it by welding 

to the rear legs of the canopy as suggested by Shepherd. Complainant conceded during his testimony that Shepherd may have mentioned that he was 

upset about complainant's leaving equipment in an inoperable condition 

(6/24; Tr. 162). There must also have been some discussion about the 

quality of complainant's work or complainant himself would not have stated 

that if his work was not satisfactory, he would have to quit. Therefore, 

I find that complainant's first claim that he was engaged in a protected 

activity when he failed to have the loader ready to operate on April 21 

must be rejected as not having been proven under the test laid down by 

the Commission in Fasula. 

The Second Alleged Violation of Section lOS(c)(l) 

The second and final reason given by complainant for his contention 

that he was discharged in violation of section 105(c)(l) is that respondent believed complainant was the person who requested MSHA to send inspectors to respondent's No. 11 Mine to investigate the circumstances 

associated with the burning of wires on a roof-bolting machine (Finding 

Nos. 10, 11, 16, 18, 27, 28, and 30, supra)o Shepherd testified that he 

had asked complainant if complainant had called the inspectors. Shepherd 

also testified that one morning when the repairmen on complainant's crew 

were getting into their cars to go home, they were kidding each other 

about having called the inspectors and that he joined in the kidding and 

asked if they had called the inspectors, but Shepherd denied that his 

interest in finding out who called the inspectors had anything to do with 

his discharging complainant (Finding No. 27, supra). 

1678 
Roger Jones was a repairman on Franklin Mayhew's clean-up crew which 

worked on the third shift. Jones was working on the morning that the 

lead wires to the motor on the roof-bolting machine burned and he testified that Shepherd had asked him if he had called the inspectors. He 

claimed that Shepherd was upset about the fact that while the inspectors 

were at the mine in response to the phone call, they wrote seven citations 

concerning matters other than the subject of the phone call (Finding Nos. 

14 and 16, supra). 

Dorsey Hall, one of the repairmen on complainantvs crew, testified 

that Shepherd had asked him if he had called the inspectors. While he 

supported Shepherd's claim to the effect that Shepherd had made the inquiry when they were kidding about the identity of the person who had 

called the inspectors, Hall also testified that Shepherd stated that whoever did call the inspectors was a dirty low down blankety blank (Finding No. 18, supra)o 

Complainant also testified that when he returned a second time on 

the day of his discharge, April 21, 1980, to ask Kelly, respondent 1 s 

general superintendent, to reverse Shepherd's action of discharging him~ 

he talked to both Kelly and Richard Combs, another superintendent~ outside the mine office. Complainant stated that, after Combs had left, 

Kelly asked him whether he was the one who had called the inspectors 

(Finding No. 10, supra). On the other hand~ when Kelly testified~ he 

denied that he had asked complainant about whether he had called the 

inspectors (Finding No. 30, supra). 

I believe that Kelly's denial of having asked complainant about calling MSHA is more credible than complainant's contention that Kelly asked 

him whether he had called the inspectors. Shepherd had called Kelly very 

shortly after discharging complainant to advise Kelly that he had discharged complainant. Therefore, if discharge of the person who had called 

MSHA to request a special inspection had been an important consideration 

in Kelly's mind for upholding complainant's discharge, it is highly likely 

that he would have raised that issue when complainant first went to see 

him very soon after Shepherd had discharged complainant. Complainant does 

not contend that he and Shepherd discussed the question of whether complainant had called the inspectors during the argument which culminated 

in complainant's discharge. For that reason, it is not likely that Shepherd would have discussed complainant's suspected role in calling MSHA 

about the roof-bolting machine at the time Shepherd reported his discharge 

of complainant to Kelly. 

The credibility of complainant's testimony about Kelly's having asked 

him if he had called MSHA is further eroded by the fact that complainant 

made it a part of his direct testimony to note that he had started his 

conversation with both Kelly and Combs in front of the office and that 

Kelly had waited until Combs had left before asking complainant if he had 

called the inspectors. Complainant's laying of a foundation for Kelly's 

question about calling the inspectors as a matter which occurred when no 

one but him and Kelly were present shows a predisposition on the part of 

1679 
complainant to establish an allegation whose credibility would have to be 

determined without existence of anyone else's presence to corroborate 

either his or Kelly's testimony as to whether Kelly asked complainant 

about calling the inspectors. 

The only remaining testimony pertaining to Shepherd's concern about 

ascertaining the identity of the person who had called MSHA is the statement of Gross, one of the repairmen on complainant's crew, to the effect 

that Gross had heard Shepherd say to Dana Eldridge that he would fire 

anyone who called the inspectors (6/25, Tr. 193). When Eldridge testified, however, he denied that he had ever heard Shepherd make such a 

remark (Finding No. 28, supra). In this instance~ I believe that 

Eldridge's testimony of denial is more credible than Gross' allegation 

as to what Shepherd may have said to Eldridge. Gross' testimony about 

the events which occurred on his own shift on the morning of April 21, 

the day of complainant's discharge, are very inconsistent and show a 

lack of certainty as to the time that events occurred and disagreed with 

all the other repairmen on complainant's crew as to the type of work 

. which Gross performed during his shift (Cf. Finding No. 20 with Finding 

Nos. 10 and 18, supra). ~ 

Although I have found that some of the complainant's testimony introduced in support of conplainant's contention that he was discharged 

because of respondent's belief that he had called MSHA to request an 

investigation of the burning of the leads to the motor on the roofbolting machine is incredible, the preponderance of the evidence shows 

that Shepherd did make an effort to establish the identity of the person 

who called MSHA. Even though Shepherd admits that he tried to find out 

who called MSHA, he denies that his effort to determine who had called 

MSHA had anything whatsoever to do with. his discharge of complainant 

(Finding No. 27, supra). 

Nevertheless, there is no reason to doubt complainant's testimony 

to the effect that he and Shepherd had a rather intense discussion about 

whether complainant had called MSHA and there is no reason to doubt 

Jones' testimony to the effect that Shepherd appeared to be very upset 

about the calling of the inspectors because their coming had resulted in 

the writing of seven citations about matters other than the smoke which 

came from the roof-bolting machine (Finding Nos. 11 and 16, supra). 

Additionally, Hall testified that Shepherd asked him whether he had 

called the inspectors and stated that whoever did call them was a dirty 

low down blankety blank. Moreover, Hall testified that he had, in a 

joking manner, said to Shepherd that complainant might have been the one 

who called the inspectors (Finding No. 18, 

The testimony discussed above is sufficient to show that Shepherd 

would probably have taken some sort of disciplinary action against the 

person who called the inspectors if he could have determined for certain 

the identity of the person who did so. I believe that the testimony supports a finding that part of Shepherd's motivation in discharging complainant was his suspicion that complainant may have been the miner who 

1680 
had called MSHA about ventilation problems and the burning of the leads 

to the motor on the roof-bolting machine. It should be noted that complainant does not assert that he called MSHA about the roof-bolting 

machine (Finding No. 11, supra) and the inspector testified that the call 

to MSHA about the roof-bolting machine had been placed anonymously (Finding No. 14, supra). Therefore, any finding that respondent violated section lOS(c)(l) when it discharged complainant must rest on a conclusion 

that a discriminatory act occurs if an employer tries to ascertain whether 

an employee has exercised his right under section 103(g)(l) to request 

that a special inspection be made concerning an alleged violation of 

the Act or of a mandatory health or safety standardo 

In Elias Moses Vo Whitley Development Corpo, 4 FMSHRC , Docket 

No. KENT 79-366-D, decided August 31, 1982, the Commission held that the 

respondent in that case had violated section 105(c)(l) by discharging a 

miner because it suspected him of having reported an accident to MSHA, 

The facts in the Moses case showed beyond any doubt that Moses had not 

called MSHA to report an accident, but the Commission concluded that respondent had violated section lOS(c)(l) because it had discharged Moses 

for the reason that respondent thought Moses had reported an accident to 

MSHA. The facts in the Moses case are very similar to the facts in this 

proceeding because in the Moses case, as in this case~ the employer 

tried to find out who had called MSHA to request a special inspection 

pursuant to the provisions of section 103(g)(l) of the Acta Section 

103(g)(l) requires MSHA to reduce to writing a request for a special inspection. The written request should be-shown by MSHA to the operator, 

but MSHA is forbidden to provide the operator with the name of the person 

who made the request for a special inspection. 

The discussion above shows that complainant successfully established 

a prima facie case under the Fasula test by showing that his discharge was 

motivated in part by a protected activity, that is, the right to request 

MSHA to make an inspection under section 103(g)(l) of the Act without respondent's supervisory personnel making an effort to determine whether he 

did, in fact, request such an inspection. Respondent's evidence, however, 

has successfully shown that even if a part of its motivation may have been 

attributable to complainant's having been suspected of requesting MSHA to 

make a special inspection, respondent would, in any event, have discharged 

complainant for his unprotected activities alone. 

Between the time I wrote my bench decision and the time that the 

record in this case became available, the Commission issued its decision 

in Johnny N. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981), pet. for 

review filed, No. 81-2300, D.C. Cir., December 11, 1981, in which it 

stated (3 FMSHRC at 2516-2517): 

* * * Once it appears that a proffered business justification 

is not plainly incredible or implausible, a finding of pretext 

is inappropriate. We and our judges should not substitute for 

the operator's business judgment our views on "good" business 

1681 
practice or on whether a particular adverse action was "just" 

or "wise". Cf. NLRB v. Eastern Smelting & Refining Corp., 598 

F.2d 666, 671 (1st Cir. 1979). The proper focus, pursuant to 

Pasula, is on whether a credible justification figured into 

motivation and, if it did, whether it would have led to the adverse action apart from the miner's protected activities. If 

a proffered justification survives pretext analysis and meets 

the first part of the Fasula affirmative defense test, then a 

limited examination of its substantiality becomes appropriate. 

The question, however, is not whether such justification comports with a judge's or our sense of fairness or enlightened 

business practice. Rather, the narrow statutory question is 

whether the reason was enough to have legitimately moved that 

operator to have disciplined that miner. * * * 

In the bench decision I had referred to the fact that it was my opinion that complainant's sleeping in the mine on the power box carrying 7 9 200 

volts was a sufficient reason for discharging complainant even if all the 

other reasons given by respondent for discharging complainant were ignored. 

That expression of my personal opinion was improper under the Commission's 

Chacon decision because I should have restricted my evaluation of respondent 1 s evidence to a determination of whether respondent's reason for discharging complainant was 11 not plainly incredible or implausiblen and 

whether respondent's asserted reason for the discharge was enough "to 

have legitimately moved that operator to have disciplined that miner". 

It is clear from both complainant's and respondent's evidence that 

the basis for complainant's discharge arose from a heated discussion which 

occurred after Shepherd had criticized complainant for leaving the loading 

machine and B-23 shuttle car in an inoperable condition. It is undisputed 

that Shepherd had called the No. 11 Mine Office about 11 p.m. on April 20, 

1980, (Sunday) to give specific instructions that the traction motor be 

installed on the loading machine, that the canopy on the loading machine 

be raised 3 or 4 inches, and that a clutch be installed in the B-23 shuttle 

car. 

Shepherd had gone into the mine on the previous day (Saturday) in an 

effort to replace the traction motor on the loading machine. He knew how 

much work remained to be done on the loading machine and knew that three 

repairmen and one foreman (complainant) would be present on the shift beginning at 11 p.m. on Sunday to perform the repairs. Shepherd fully explained, under questioning by me, how the repairs should have been made 

and how the repairmen should have allocated their time for the purpose of 

accomplishing those repairs (6/27, Tr. 86-93; 99; 101-104). He explained, 

for example, in response to the repairmen's claim that they did not have 

the expertise to weld in a horizontal or vertical position, that they 

could have replaced the canopy on the loading machine, after they had cut 

off its legs, and could have spot welded the legs while they were on the 

machine. Then the canopy could have been removed for the purpose of 

firmly rewelding the legs in a flat position (6/27, Tr. 93). 

1682 
Shepherd also convincingly pointed out that all three of the repairmen were not needed to install the traction motor on the loading machine 

and that at least one of the repairmen should have gone to the B-23 

shuttle car so that work on installing the clutch could have been started 

immediately after the miners arrived underground at about 11:30 p.m.. If 

one repairman had started working on the B-23 shuttle car immediately 

after going underground, he would have had plenty of time during his shift 

to have determined that replacement of the clutch was not the cause of the 

shuttle car's trouble and he could have removed the pump motor, could have 

ordered a new one from the supply house, could have had it delivered to 

the No. 11 Mine during the third shift, and could have installed it before the shift ended at 6:45 a.m. (6/27, Tro 100-103)0 

The repairmen agreed that the first-shift section foreman often complained about their leaving equipment in an inoperable condition (6/25, 

Tr. 60; 127). Although they claimed that they rarely left equipment in 

an inoperable condition (6/25, Trc 27; 173), they agreed that they were 

of ten blamed for the failure of equipment to be ready to operate on the 

day shift (6/25, Tr. 39-41). Therefore, regardless of the fact that 

Shepherd could not give many specific instances, other than the failure 

of complainant and his men to wire a cutting machine properly (6/26, Tro 

18-19; 109; 156)~ when a certain type of equipment was left inoperable 

by complainant's crew, the evidence clearly supports Shepherd~s contention 

that the primary reason for his discharge of complainant was the fact that 

complainant had left both the loading machine and the B-23 shuttle car 

inoperable on the morning of April 21, 1980, when Shepherd discharged 

complainant. 

Shepherd's claim that he discharged complainant for leaving equipment 

in an inoperable condition is 11 not plainly incredible or implausible" under the rationale given by the Commission in the Chacon case, supra, and 

the discussion above shows that complainant's failure to have the equipment ready to operate would have been "enough to have legitimately moved" 

Shepherd to take the discharge action which he took at the time complainant reported that the loading machine and B-23 shuttle car were inoperable. 

Although Shepherd testified that he discharged complainant for the 

six reasons which are listed in Finding No. 25, supra, complainant's 

counsel ohjected to my giving consideration to any of those reasons other 

than Shepherd's expressed dissatisfaction with the condition of the equipment. Complainant's counsel supports his contention by referring to the 

following statement by the Commission in Fasula (2 FMSHRC at 2800): 

* * * It is not sufficient for the employer to show that the 

miner deserved to have been fired for engaging in the unprotected activity; if the unprotected conduct did not originally 

concern the employer enough to have resulted in the same adverse action, we will not consider it. The employer must show 

that he did in fact consider the employee deserving of discipline for engaging in the unprotected activity alone and that 

he would have disciplined him in any event. [Emphasis in 

original.] 

1683 
Complainant's counsel argues that Shepherd did not discuss anything but 

the inoperable equipment at the time complainant was discharged and that 

the other five reasons given by respondent for complainant's discharge 

merely constitute conduct which may have irritated Shepherd but would not 

have caused complainant to be discharged if complainant had not allegedly 

engaged in the protected activity of telling Shepherd that raising the 

canopy as Shepherd had suggested would be unsafe. Complainant agreed 

that Shepherd discussed the condition of the equipment (6/24, Tr. 162), 

and complainant's statement that he would just quit if his work was not 

satisfactory (6/24, Tr. 62), support Shepherd's claim that the primary 

reason for complainant's discharge was the fact that complainant had 

left two major pieces of equipment in an inoperable condition (6/26, 

Tr. 30). 

There is an inconsistency about complainant's argument to the effect 

that the Commission 1 s Pasula decision prohibits me from considering five 

of the six reasons given respondent for discharging complainant because 

only one of those reasons, that is, leaving equipment in an inoperable 

condition, was discussed by Shepherd at the time the discharge took placeo 

The inconsistency of the argument lies in the fact that, on the one hand, 

complainant is contending that it is improper for me to consider any discharge reasons not raised by Shepherd on April 21, the day of the discharge~ 

while, on the other hand, complainant is asking me to consider an alleged 

protected activity, that is, Shepherd 1 s belief that complainant had called 

MSHA to request a special inspection, even though that particular activity 

was not discussed by either Shepherd or complainant on April 21, the day 

of the discharge. 

Despite the inconsistency of arguing that complainant should be 

allowed to raise any claim of protected activity at any time subsequent 

to discharge, while respondent should be limited to only such reasons for 

discharge as were mentioned on the day of discharge, I have hereinbefore 

considered complainant's contention, that Shepherd's suspicion that complainant may have called MSHA to request a special investigation, was a 

contributing factor in respondent's having discharged complainant, and I 

have hereinbefore found that Shepherd's suspicion of complainant's having 

called MSHA was a contributing factor in complainant's discharge. 

Even though the Commission stated in Fasula, supra, that it would 

not consider an unprotected activity which did not concern the employer 

enough to discharge an employee when the unprotected activity was originally encountered, it seems to me that I am still required to examine 

the unprotected activities given by respondent as reasons for the discharge 

in order to show that respondent's discharge reasons have not been summarily ignored as being unworthy of any consideration. Therefore, I shall 

hereinafter examine the reasons given by respondent for discharging complainant to determine whether those reasons would have caused complainant's 

discharge if complainant had not been suspected of engaging in the protected activity of calling MSHA to request a special inspection. 

1684 
As to respondent's claim that Shepherd discharged complainant for 

having slept on company time, and especially for having slept on the 

power box several times each week, the evidence shows that Shepherd made 

many inquiries in an effort to determine whether complainant was consistently sleeping in the mine (6/26, Tr. 15-17; 68-73; 109; 6/27, Tr. 11). 

Complainant conceded during his testimony that he was warned twice that 

he would be discharged if he were caught sleeping again (6/24, Tr. 160). 

All three repairmen on complainant's crew testified that complainant 

remained at the power box during most of the shift on April 21 (6/25~ 

Tr. 53; 96; 188; 200), but none of the repairmen testified that complainant was asleep on the shift ending at 7 a.m. on April 21 Since 

Shepherd did not see complainant asleep on April 21 and did not know 

whether he had been sleeping on that shift~ there would have been no 

reason for Shepherd to have discharged complainant on April 21 or 

sleeping during working hours. Therefore~ respondent failed to prove, 

under the test set forth by the Commission in Pasulas that it would 

have discharged complainant for the unprotected activity of :_r: 

the mine if complainant had not also engaged in the unprotected acti 

of leaving equipment in an inoperable conditiono 

As to Shepherd's claim that he discharged complainant for hunt 

for game on company time, neither Shepherd nor complainant contended 

that hunting had any bearing on complainantvs failure to the 

ment in an operable conditiono Therefore, I find that respondent failed 

to show that complainantvs acts of checking his traps or engag in 

other hunting activities actually caused complainant to be discharged 

on April 21. 

Another reason which Shepherd gave for discharging complainant was 

that complainant would often tell Shepherd that equipment was operable 

when, in fact, it was not. On April 21, both complainant and Shepherd 

agree that complainant reported that the loading machine and B-23 shuttle 

car were inoperable. Consequently, even though complainant may have given 

erroneous reports about the equipment's operability on some days~ on 

April 21 complainant did correctly report that two major pieces of equipment were inoperable, so I find that complainant's alleged incorrect reporting of equipment as operable was not shown to have contributed to 

complainant's discharge on April 21. 

Two other reasons given by Shepherd for complainant's discharge have 

merit under the Pasula rationale. Shepherd testified that the maintenance 

foremen, including complainant, had a practice of reporting for work, or 

"portalling'' ~ at the supply house, rather than reporting for work at the 

mine where they worked (6/26, Tr. 9; 20; 130). The reason that the maintenance foremen were permitted to report for work at the supply house was 

that they would pick up any parts needed to repair equipment and take the 

parts directly to the mine where the parts could be used in the repair of 

equipment (6/24, Tr. 15). The record shows that complainant generally 

went into the mine at 1 a.m., after having first gone to the supply house, 

because that was the agreed time when Lewis would come out in a rail car 

to provide complainant with transportation into the mine (6/24, Tr. 24; 

6/25, Tr. 93; 103). 

1685 
Shepherd testified, without contradiction, that one morning the cutting machine was improperly wired so that Shepherd had to rewire it on 

the day shift with the result that commencement of production was delayed. 

On that occasion, Shepherd testified that he criticized complainant for 

failing to wire the machine properly. Shepherd said that he knew that 

complainant understood how to wire the machine and that its being incorrectly wired showed that complainant had not stayed with his repairmen 

to give them proper supervision or assist them in wiring problems in 

which they were inexperienced. Complainant, according to Shepherd, 

stated that he did not get into the mine that night until about 4 a.mo, 

whereupon Shepherd stated that he forbade complainant to continue reporting at the supply house because complainant was using the practice of reporting to the supply house as an excuse to report underground at an 

unreasonably late hour (6/26, Tro 19-20)0 

Complainant does not dispute that Shepherd ordered him to stop reporting for work at the supply house, but he claims that after he had reported at the No. 11 Mine Office~ so as to go underground at the beginning 

of the shift with his crew~ for about one shift, Shepherd countermanded 

his prior order and told complainant to resume reporting to work at the 

supply house because canopies had to be installed on three pieces of 

equipment by April 18, 1980~ and that Shepherd wanted complainant to be 

sure he obtained the parts for installing the canopies that date (6/2li., 

Tro 80; 142)0 Complainant also alleged that Shepherd told him that his 

wife was seriously ill and that Shepherd would have to be away for several 

days to take his wife to a hospital in Lexington, Kentucky (6/24, Tr. 97-99)c 

Shepherd denied that he had reversed his order about complainant's 

being allowed to resume reporting to work at the supply house. Shepherd 

denied that he had asked complainant to install the canopies by April 180 

Shepherd further denied that his wife was seriously ill or that it had 

ever taken him more than l day to take her to a doctor in Lexington (6/26~ 

Tr. 200-201; 6/27, Tr. 114). 

I do not believe that it is necessary for me to make a credibility 

finding as to whether Shepherd did revoke his order requiring complainant 

to report to the No. 11 Mine, instead of to the supply house, since both 

complainant and Shepherd agree that Shepherd had ordered complainant to 

stop reporting for work at the supply house. The fact that Shepherd 

ordered complainant to stop reporting for work at the supply house for 

any period of time shows beyond any doubt that Shepherd had become upset 

about complainant's tardiness in getting into the mineo 

The test given in the Commission's Chacon decision, supra, is not 

whether a judge or the Commission thinks a given unprotected activity is 

grounds for disciplinary action, but "* * * whether the reason was enough 

to have legitimately moved that operator to have disciplined that miner" 

(3 FMSHRC at 2517). Shepherd did not think that complainant had given 

adequate reasons to justify his getting into the mine at 2:00 or 2:15 a.m. 

and Shepherd believed that the equipment was left inoperable because complainant had not performed his supervisory job in a satisfactory manner 

(6/26, Tr. 23; 66; 136; 6/27, Tr. 93; 103). 

1686 
Even if one accepts complainant's version of the facts in their entirety, Shepherd was justifie<l in his belief that complainant's performance of his duties on April 21 was unsatisfactory. Complainant testified 

that on April 20, 1980, he reported to the supply house at about 10:45 p.mo 

and Ricky Baker, the supply clerk, agrees that complainant arrived at the 

supply house well before 11 p.m. when complainant's shift was scheduled 

to begin (6/24, Tr. 18; 261). Complainant stated that Lewis told him over 

the phone that Shepherd wanted the canopy on the loading machine raised 3 

or 4 inches by welding pieces to the canopy's rear legs (6/24~ Tro 20)o 

After talking to Lewis on the phone, complainant stated that he left 

the supply house about 11:45 p.m. and arrived at the Noo 11 Mine about 12 

midnight or 12:15 a.m. (6/24~ Tr. 24)o Complainant testified that he then 

tried to call Lewis on the minevs paging system~ but that he could not get 

anyone to answero He stated that he did not know whether the repairmen on 

his crew were too far away to hear the phone or whether the phone was 

operable, but he said he did not check to determine whether the phone was 

out of order (6/24~ Tr. 27). Complainant stated that he talked to another 

foreman, Franklin Mayhew, in the mine office until Lewis came out to get 

him in a rail car about 1:45 a.m. and that he finally arrived on the sec~ 

tion where his repairmen were working about 2~00 or 2:15 a.m. (6/24 0 Tro 

28). Complainant also testified that the only parts needed for the re~ 

pairs which Shepherd had instructed them to perform on April 21 ~ that is~ 

a motor for the loading machine and a clutch for the B-23 shuttle car~ 

had already been taken to the mine on a prior shift (6/24, Tr. 30; 36)o 

Complainant can't recall what parts, if any, he took to the mine on 

April 21 (6/24, Tr. 194). 

Shepherd's displeasure with complainant's performance has considerable merit. Complainant did not justify his reason for remaining at the 

supply house from 11 p.m., when his shift began, to 11:45 p.m. before 

starting to the No. 11 Mine when it is realized that he did not have to 

obtain any parts which were needed for the work they had been instructed 

by Shepherd to do on April 21. Lewis testified that he and complainant 

had an agreement under which Lewis was supposed to come out in the rail 

car each morning to get complainant about 1:00 a.m. and Lewis denied that 

complainant tried to call underground on April 21 (6/25, Tr. 93; 116; 

140). Gross testified that they were not close enough to the phone to 

hear it when complainant called (6/25, Tr. 197-199). Hall testified that 

they didn't hear any phone on April 21 and that Lewis normally knew before 

going underground when complainant wanted Lewis to come outside for complainant (6/25, Tr. 44). Regardless of whether complainant tried to call 

and couldn't get any answer, or whether the phone failed to function, 

Shepherd was justified in being displeased with complainant's complacency 

in talking to another foreman for 1-1/2 hours while complainant waited 

for Lewis to come out in the rail car to take complainant inside. 

One of the mandatory safety standards, namely, 30 C.F.R. § 75.1600-

2(e), provides as follows: 

1687 
Telephones or equivalent two-way communication facilities 

shall be maintained in good operating condition at all times. 

In the event of any failure in the system that results in loss 

of communication, repairs shall be started immediately, and the 

system restored to operating condition as soon as possible. 

Other provisions of section 75.1600-2 provide that the communication system 

is not to be more than 500 feet outby the last open crosscuto Complainant 

testified that the phone was located underground about four or five breaks 

outby the face and that the breaks were on 60-foot centers (6/24~ Tro 27; 

38). Therefore~ the phone should have been audible to his repairmen underground at the place where they were working and, in any event 9 it was a 

violation of sec.tion 75.1600-2(e) for complainant to have gone underground~ 

as he subsequently did, and to have worked the remainder of the night without making sure that the communication system was operableo 

Complainant 1 s repairmen and complainant himself all agree that he did 

not get into the mine until 2:00 or 2:15 a.m. on the morning of his discharge (6/24, Tr. 28; 6/25, Tr. 44-45; 165; 199). The repairmen and complainant also agree that when they left the mine on April 21 0 neither the 

loading machine nor the B-23 shuttle car was in operable condition (6/24, 

Trc 42; 62; 6/25 0 Tro 17-19; 188)0 Shepherd was justified in believing 

that complainantvs failure to get the equipment repaired was 9 at least in 

part, the result of complainantvs failure to get into the mine in time to 

start supervising his repairmen. Complainant contended that he had instructed Lewis, when they talked on the phone about 11 p.m. on April 20, 

not to do any work on the raising of the canopy until complainant arrived 

at the mine (6/24, Tr. 22). Lewis testified that complainant normally 

advised him, at the beginning of the shift while they were discussing the 

types of repairs that were to be done, what time Lewis should come out to 

get complainant (6/25, Tr. 93; 116; 140). If complainant did not want 

any work done on the canopy until he arrived at the mine to supervise 

that particular assignment, it is hard to understand why he would have 

failed to advise Lewis while they were discussing the canopy that Lewis 

should be certain to come out for him sooner than 1 a.m. so that they 

could promptly decide how to raise the canopy. 

I believe that the discussion above supports a finding, and I so find~ 

that respondent properly based its action of discharging complainant on 

his failure to get into the mine in time to perform his work satisfactorily. It cannot be reasonably argued that a supervisor who is confronted 

by the failure of a foreman to repair two major pieces of equipment would 

fail to be motivated in discharging him by the fact that the foreman had 

not managed to get into the mine to work until 2:00 or 2:15 a.m. on Monday, 

as compared with the repairmen on his crew who had arrived on the working 

section at 11:30 p.m. on Sunday. 

I am still of the opinion, as I stated at the hearing, that when a 

supervisor discharges a person, all of the reasons for being dissatisfied 

with that person's performance have a cumulative effect in the supervisor's 

1688 
mind when he decides that the time has arrived for discharging the employee whose work has been growing progressively unsatisfactory. 

Nevertheless, to give complainant every benefit of any argument which 

his counsel can make under the Commission's Fasula decision, I have 

interpreted the Commission's decision as complainant's counsel has 

asked that it be interpreted, that is, I have rejected all of the 

reasons given by respondent for complainant's discharge, even if those 

reasons did show that complainant "deserved" to be discharged, and I 

have accepted as meritorious only those discharge reasons which involve 

unprotected activities which alone would have caused respondent to discharge complainant even if complainant had not been suspected of having 

engaged in the protected activity of requesting that MSHA make a special 

inspection, I still find, however, that under the Commission 1 s ho:ding 

in the Chacon case, supra, respondent has very convincingly shown that 

its reasons discharging complainant are 11 * * ·k plainly incredible or implausible" The reasons found to be under the. 

Commission's Fasula decision would have moved respondent 

to discharge complainant on the morning of April 21 notwithstanding the 

fact that respondent might also have been motivated in part by a suspicion that complainant may have been the person who requested that MSHA 

conduct a special inspection of respondent's mine, 

Inasmuch as respondent has been shown to have satisfied the tests 

given by the Commission in Pasula and in Chacon, I find that complainant 

has failed to prove that he would have been discharged for allegedly 

claiming that it was unsafe to raise the height of the canopy on a loading machine by 3 or 4 inches by welding pieces to the rear legs of the 

canopy, or for having been suspected of calling MSH.A to request a special 

inspection, if complainant had not left the loading machine and B-23 

shuttle car inoperable and had not gone into the mine at 2:00 or 2:15 

a.m. on the morning when the equipment was left inoperable. 

WHEREFORE, it is ordered: 

The complaint filed in Docket No. KENT 80-288-D is denied for failure 

of complainant to prove that he would have been discharged for an activity 

protected under section 105(c)(l) of the Federal Mine Safety and Health 

Act of 1977 if he had not engaged in other unprotected activities which, 

alone, would have caused his discharge. 

1689 

~ <!. ~I4//?- Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 
Distribution: 

Tony Oppegard, Esq., Attorney for Lehman Gilliam, Appalachian 

Research and Defense Fund of Kentucky, Inc., P. O. Box 360, 

Hazard, KY 41701 (Certified Mail) 

Stephen A. Sanders, Esq., Co-Counsel for Lehman Gilliam, Appalachian Research and Defense Fund of Kentucky, Inc., P. O. 

Box 152, Prestonsburg, KY 41653 (Certified Mail) 

Randall May, Esq., Attorney for Blue Diamond Mining, Inc", 

Craft, Barret & Haynes 9 Po O. Drawer 1017, Hazard, KY 41701 

(Certified Mail) 

1690 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CHARLES H. BUNDY, 

Vo 

BENHAM COAL~ INC., 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

Respondent 

DECISION 

SEP 10198'l 

Complaint of Discharge, 

Discrimination, or Interference 

Docket Noo KENT 82-35-D 

Appearances: Joseph Eo Wolfe, Esq., Wolfe, Farmer and Kern 0 Norton, 

Virginia, for Complainant; 

Grover c. Potts, Jr., Esq.·, Wyatt, Tarrant and Combs~ 

Louisville, Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued July 21, 1982, a hearing in the 

above-entitled proceeding was held on July 29, 1982, in Norton, Virginia, 

under section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(c)(3). 

After the parties had completed their presentations of evidence and 

had made oral arguments in support of their respective positions, I rendered the bench decision which is reproduced below (Tr. 191-205): 

This proceeding involves a complaint of discharge, discrimination or interference which was filed by Charles H. Bundy 

against Benham Coal Inc. in Docket No. KENT 82-35-D, on December 24, 1981, pursuant to section 105(c)(3) of the Federal Mine 

Safety and Health Act of 1977. 

I shall make some findings of fact on which my decision will 

be based and the findings will be set forth in enumerated paragraphs. 

1. Charles H. Bundy began working for Benham Coal Inc. on 

February 16, 1971, as an inside laborer. He worked at other 

positions until, in 1974, he received a letter from what was then 

MESA in the Department of the Interior advising him that he had 

indications of pnetlllloconiosis which gave him the right to transfer to a less dusty area under section 203(b) of the Federal Coal 

1691 
Mine Health and Safety Act of 1969. 1/ He made the election to 

transfer to a less dusty area and on-July 8, 1974, was transferred to a position known as outside laborer. 

2. He thereafter made a bid for the underground position 

of shuttle car operator on March 24, 1975, and subsequently became a roof bolter, thereby waiving his right of to a 

less dusty area. He remained underground until March 3, 1976? 

when he again asked to be transferred to a less dusty area and 

on July 19, 1976 9 he was transferred to the coal preparation 

plant as an outside laborer. On April 10, 1978 he bid on the 

job of other machinery repairman. Then, on July 31, 1978? he 

·exercised a job bid for the position of coal plant 

electrician and mechanic and he held that when Benham 

Coal Ince had an extensive layoff of employees in June of 19800 

3o The company began to recall its employees in September 

1980 on a seniority basis. When the 10-year seniority of Mr. Bundy 9 

at that time, became applicable, he was told he could not be recalled at that time because the only position then open was one 

for a roof bolter and that was not a position in a less dusty area 

where a miner who had exercised his right to transfer under section 

203(b) should be permitted to work. Hr. Bundy advised the company's 

manager of industrial relations, Mr. Charles Estep, that he would 

like to have the position of roof bolter despite the fact that it 

was not a position in a less dusty area in conformance with the 

right he had exercised to transfer under section 203(b). The company refused to allow him to go underground and he was unable to 

get a position until December 8, 1980, when the company did have 

an opening for the position of coal preparation electrician 

and mechanic, which was the position that he had held at the time 

he had been laid off. 

4. Mr. Bundy's complaint in this case asks that he be paid 

the salary of a roof bolter for the period from September 24, 1980, 

to December 8, 1980, which he would have been paid if the company 

had allowed him to go back to work in a relatively dusty area 

underground at the time his seniority status would have qualified 

him to return to work as a roof bolter if it had not been for his 

previous election to take a position in a less dusty area of the 

mine., 

1/ Section 203(b) of the 1969 Act has been superseded by section 101 of 

the 1977 Act and by Part 90 of the Code of Federal Regulations which implements section 101 of the Act. The term "less dusty area" is used because miners who have exercised their right to transfer under Part 90 are 

entitled to work in a mine atmosphere maintained at or below 1.0 milligrams of respirable dust per cubic meter of air. Part 70 requires working areas to be maintained at or below 2.0 milligrams per cubic meter of 

air. Since Mr. Bundy was transferred from an area which had to be maintained at 2.0 milligrams to an area having no more than 1.0 milligrams, 

he was transferred to a "less dusty area". 

1692 
5. At the time Mr. Bundy was not permitted to return 

underground to the position of roof bolter, Mr. Estep asked 

Mr. Bundy to procure a doctor's statement indicating that it 

was permissible for him to be sent underground. Mr. Bundy, at 

that time, went to see the company's physician, Dr. Weir, who 

first told Mr. Bundy that the company should take him back and, 

when Mr. Bundy checked back with him, Dr. Weir said that in the 

meantime he had talked to Mr. Estep and that he believed that 

Mr. Bundy should not be sent back underground because of his 

first stage condition of pneumoconiosis. 

6. Mr. Bundy thereafter went to other doctors, one by the 

name of M. F. Saydjari, who provided Mr. Bundy with a statement 

that, in his opinion, Mr. Bundy was physically able to work in 

a coal mine. That statement has been made Exhibit B in this 

proceeding. Mr. Bundy also got a statement from Dr. w. E. 

Bowers, Jr., to the effect that Mr. Bundy could work in a coal 

mine, but he added that if Mr. Bundy developed breathing difficulties, he would suggest that blood gas and ventilation 

studies be made. That statement is Exhibit C in this proceeding. 

7. The company declined to accept either doctor's recommendation because Dr. Saydjari 1 s statement was hot enforced by 

any kind of X-ray. Although Dr. Bowers' statement was based on 

X-rays, they had been made in connection with Mr. Bundy's hospitalization for ailments other than pneumo.coniosis. Therefore, 

the company suggested that Mr. Bundy have an additional X-ray 

made. One was made and was interpreted by Dr. Wells. Through 

Dr. Wells' interpretation, Dr. Weir again came up with a finding 

that Mr. Bundy had first stage pnetunoconiosis and that the company preferred not to allow him to go back underground. 

8. Mr. Bundy's first election to transfer to a less dusty 

area under section 203(b) of the Act was made after the government had sent him a statement that he did have preliminary indications of pneumoconiosis. In this proceeding, Mr. Bundy introduced as Exhibit 1, a statement from the Department of Health 

and Human Services based on an X-ray taken September 15, 1981, 

stating that the interpretation of the X-ray by a physician 

qualified under the Act indicates that there is no definite 

evidence of coal worker's pneumoconiosis. That most recent Xray, of course, was not available either to Mr. Bundy or to the 

company on September 24, 1980, when Mr. Bundy elected to go 

back underground by waiving his right to transfer to a less 

dusty area. 

Those are the primary findings of fact upon which my decision will be based. 

Counsel for Mr. Bundy has argued that the company's refusal 

to allow Mr. Bundy to go back underground in September of 1980 

was a violation of section 105(c)(l) of the Act. 

1693 
In pertinent part, section 105(c)(l) reads 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 Act because such miner * * * is the subject 

of medical evaluations and potential transfer under 

a standard published pursuant to section 101 * * * 

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 Acto 

Mr. Bundy's attorney recognizes that Mro Bundy has elected 

to transfer out and then has waived his transfer rights and gone 

back in and worked in an area of the·mine which is above one milligram per cubic meter of respirable dust and then has made a 

second election to transfer outo Mro Bundy's counsel emphasizes 

that Mr. Bundy was allowed to make those changes because in the 

first instance, Mr. Bundy went out because he had a letter saying he had the indications of pnemnoconiosis and that he should 

go to a less dusty area. There is no provision in the Act 

authorizing Mr. Bundy to go back underground to take the position 

of roof bolter. That decision was based on Mr. Bundy's apparent 

belief that the roof-bolting position would pay more money than 

his position at the preparation plant. 

After Mr. Bundy had done the work of a roof bolter for a 

while, he decided to transfer back to a less dusty area again 

and his reason for doing so the second time was that he was not 

aware that the roof-bolting position was as dusty as it apparently proved to be. During his testimony, Mr. Bundy indicated 

that he did not ask to go back into the mine until after the 

reduction in force in September 1980 because he was satisfied 

with the work he was doing outside the mine and had no reason 

to want to change his working position. 

The company's attorney argues that I should look at the 

purpose and intent of the Act when I am trying to interpret or 

determine whether there was a violation of section 105(c)(l) 

here. He emphasizes a statement in section 2(a) of the 1969 

Act which, of course, is still a part of the 1977 Act. Specifically, section 2(a) provides that "the first priority and concern of all in the coal mining industry must be the health and 

safety.of its most precious resource--the miner." 

1694 
The company's attorney thus emphasizes that, in this case, 

I'm confronted with a situation in which I'm being asked to use 

the Act as the basis for a miner to impair his health, or at 

least run the risk of further impairment of his health, by requiring the company to let him go back into the mine by taking 

a waiver of his right to transfer out of a dusty atmosphere. 

Counsel for the company points out that the election Mr. Bundy 

first took in 1974, and again elected to take in 1976, was based 

on section 203(b) of the 1969 Act which does not contain any provisions for waiver. There is no provision for waiver in Part 90 

of the regulations which promulgated section 203(b) of the 1969 

Act. 

Counsel for the company also points out that Part 90 in the 

existing regulations became effective on March 31 9 1981 0 after 

Mr. Bundy sought to be reemployed as a roof bolter in September 

1980. \fuile the provisions of the current Part 90 state that a 

miner may waive his rights to transfer, counsel for the company 

argues that once the miner has waived his right to transfer 9 he 

is not under the protection of the Act or the Regulations and 

that the contract between the miners and the company~ which has 

been introduced as Exhibit A in this proceeding 0 then controls 

what occurs. 

No one argues that when there has been a reduction in force~ 

that the recall of miners should be goverried by any principle 

other than seniority. Therefore neither Mr. Bundy nor the company argues that when the recall of miners occurred in 1980 9 

Mr. Bundy was entitled to a job until such time as people with 

his number of years of employment had been reachedo 

But the company does argue that a provision of the contract 9 

or Exhibit A in this proceeding, controls Mr. Bundy's right to 

bid for jobs underground. Specifically, Article 5~ Section 12 

of Exhibit A is relied upon by the company. Section 12 provides 

in pertinent part, "* * * [o)nce the employee has exercised the 

option to transfer to a 'less dusty area' he may not bid to an 

area of higher dust concentration." 

Mr. Bundy testified that, in his opinion, he was not bound 

by that provision so as to keep him from asking the company to 

reinstate him or rehire him in the position of roof bolter because 

he was not bidding for a job. He was, he contends, simply asking 

to be put back to work in the only available position to which he 

could have been recalled on September 24, 1980, when his seniority 

permitted him to be recalled. 

I do not purport to be an authority on interpreting the labor 

contract. Since it is unnecessary for me to interpret the contract in order for me to decide the discrimination issues in this 

1695 
case, I shall not express any opinion in this final decision as 

to the merits of Mr. Bundy's or the company's arguments based 

on the contractual provisions of the Labor Agreement. 

Another reason the company gives for refusing to let 

Mr. Bundy go underground is that it did not want to see him run 

the risk of having his health further impaired by working in a 

dusty area. Also the company argues that its exposure to having 

to pay black lung benefits would be greater if it allowed 

Mr. Bundy to go back underground where he might become subject 

to greater lung damage and, therefore, some day might file a 

black lung claim for pneumoconiosis which would not have been 

filed if Mr. Bundy had continued working as a Part 90 miner. 

Mr. Bundyvs attorney argues that the company 9 s possible 

exposure to paying a black lung claim is such a speculative argument that I ought not to entertain it. I suspect that Mr. Bundy's 

attorney is correct in that contention because I do not believe 

that the companyvs possible exposure to paying a black lung claim 

is a valid basis for deciding the issues in this case. 

On the other hand, I am greatly concerned about the companyvs 

other argument~ which is that both the 1977 Act and 1969 Act were 

for the purpose of protecting miners 1 health and 

Here 9 as the company points out~ we have a situation in 

which the complainant is asking the Commission to use the Act for 

the purpose of forcing the company to allow him to work in a position which could have very definite adverse effects on his health 

if he continues to work underground where the concentration of 

respirable dust, according to Mr. Williams' and Mr. Estep's testimony, is never below one milligram per cubic meter of air, except perhaps for a single day for a short time, and where there 

is no concentration of respirable dust below one milligram at any 

time on an average basis. 

In other words, the company's evidence shows beyond any 

doubt that the only place the company could place Mr. Bundy at 

the present time without exposing him to more than one milligram 

of dust would be on the outside of the mine or in a position that 

would require him to go only 50 feet inby the portal. The company has not monitored any positions which show that a miner 

could go more than 50 feet underground without violating the one 

milligram requirement in connection with a Part 90 miner. 

The legislative history pertaining to section 105(c)(3) is 

contained in the Legislative History of Federal Mine Safety and 

Health Act of 1977 prepared for the Sub-committee on Labor on the 

Committee of Human Resources, U. S. Senate, July, 1978. I would 

like to quote from page 623 of the Legislative History or page 35 

of Senate Report No. 95-181, 95th Congress, First Session, May 16, 

1977, as follows: 

1696 
The legislation protects a miner from discrimination because he "is the subject of medical 

evaluation and potential transfer under a standard 

published pursuant to Section 10[1]". Under Section 10[1], standards promulgated by the Secretary 

must provide; as appropriate, that where it is 

determined as a result of a physical examination 

that a miner may suffer material impairment of 

health or functional capacity by reason of his exposure to a hazard covered by a standard, the miner 

shall be removed from such exposure and reassigned; 

and that the miner transferred shall continue to receive compensation for his work at no less than the 

regular rate of pay for miners in the classification 

the miner held prior to transfero The Committee intends Section 10[5](c) to bar, as discriminatory~ 

the termination or laying-off of a miner in such 

circumstances, or his transfer to another position 

with compensation at less than the regular rate of 

pay for the classification held by the miner prior 

to transfero The relief provided under Section 10[5] 

(c) is in addition to that provided under sections 

10[4J(a) and (b) and 10[5] for violations of standards. 

The legislative history, in that same section, goes on to 

point out that the purpose of section 105(c)(l) is to bring about 

a safer work place for miners and a healthier work place for 

miners, and that discriminations must be rigorously prosecuted 

in order to protect the miner's rights to complain about health 

and safety matters in a mine. · 

The problem that I have with the complainant's claim in this 

case is that I am asked to interpret section 105(c)(l) to find 

that Mr. Bundy was discriminated against when the company refused 

to call him back to a position which was not in a less dusty area. 

The purpose of that section, and the legislative history shows 

the purpose of it is to enable Mr. Bundy to be able to find a 

position in a less dusty area for which he will not be compensated 

at a lower rate of pay than if he had continued to work in the 

dusty area. 

It's true that Part 90, as it now reads, provides that a 

miner may waive his right to work in a healthier environment, but 

as counsel for the company has pointed out, once he waives that 

right to transfer to a less dusty area, then, he is outside the 

Act because the Act does not articulate what shall happen to him 

when he waives his right to transfer to a less dusty area. 

1697 
In short, when Mr. Bundy waived his right to transfer, he 

was restored to the status of a healthy miner and, as such, he 

was required to bid for any job he wanted under the provisions 

of the union contract in the same manner as any other miner who 

had not elected to transfer to a less dusty area under Part 90. 

The moment that Mro Bundy told Mro Estep in September 1980 that 

he no longer wanted to take advantage of his right to be in a 

less dusty area, Mr. Bundy took himself outside the protective 

provisions of the Acto 

I do not see how I can find that the company discriminated 

against him at that time since the whole purpose of the Act is 

to improve his health and safetyo Consequently~ I cannot find 

"that there has been a violation of section lOS(c)(l) in the 

factual circumstancaes that we have in this proceedingo 

WHEREFORE, it is ordered 

The complaint of discriminationp. dischargep or interference 

filed on December 2L;P 1981, in Docket Noo KENT 82-35-D is denied 

for failure of complainant to prove 

lOS(c)(l) of the Federal Mine 

occurredo 

Distribution: 

that a violation of section 

and Health Act of 1977 

~ e. rJXiz/htRichard c. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Joseph E. Wolfe, F.sq., Attorney for Charles H. Bundy, Wolfe, 

Farmer & Kern, 470 Park Avenue, P. o. Box 625, Norton, VA 24273 

(Certified Mail) 

Grover C. Potts, Jr., Esq., Attorney for Benham Coal Inc., Wyatt, 

Tarrant & Combs, Citizens Plaza, Louisville, KY 40202 (Certified 

Mail) 

Mr. Charles H. Bundy, Box 372, Benham, KY 40807 

1698 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 'IEP 1 4 lerl 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

Vo 

LIME PRODUCTS CORPORATIONs 

Respondent 

Appearances: David Ao Snyder 9 

Department of Labor 

George s. Isaacson, 

for Respondento 

DECISION 

Civil Penalty Proceeding 

Docket No. YORK 81-28-M 

Ao C. No. 17-00431-05006I 

Warren Aggregate Plant 

and Quarry 

o9 Office of the Solicitor 9 Uo So 

Boston, Massachusetts, for Petitioner; 

Esqo~ Brann & Isaacson9 Lewiston, Maine 9 

PROCEDURAL BACKGROUND AND STATEMENT OF THE 

This is a civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977 9 30 u.s.c. § 801 ~~· (Supp. III 1979),l_/ 

herein "the Act." 

Following an accident which occurred at Respondent's Aggregate Plant 

and Quarry located at Warren, Maine, on December 18, 1979, duly authorized 

representatives of the Petitioner conducted an inspection. On January 2, 

1980, Citation and Withdrawal Order No. 201378, alleging a violation of 30 

C.F.R. § 56.9-2, and Citation No. 201379, alleging a violation of 30 C.F.Ro 

§ 56.9-37 were issued. On both doctnnents, the inspector checked a box indicating that each violation "significantly and substantially contributed to 

the cause and effect of a • • • mine safety or health hazard" as provided 

in Section 104(d)(l) of the Act. 

Citation and Order No. 201378 alleges that: 

A front-end loader operator was seriously injured on 

December 18, 1979, when the Model 38-B Bucyrus Erie shovel, 

with crane boom attached, rolled backwards down a grade and 

overturned. The boom striking the cab of the front-end 

loader. Previous to the accident, two attempts were made to 

move the shovel up the grade but failed due to the propel 

clutch slipping. The shovel shall not be placed back into 

operation until it has been certified safe to operate by a 

competent person acceptable to MSHA. 1958 Bucyrus Erie 

380, with boom attached, shovel, Serial # 2298. 

'};_/ The formal hearing in this matter was presided over by Administrative 

Law Judge John Cook who since has transferred to another agency. This case 

has been transferred to me for decision. 

1699 
30 C.F.R.1 § 56.9-2 provides: "Mandatory. Equipment defects affecting 

safety shall be corrected before the equipment is used." 

Citation No. 201379 alleges that: 

A front-end loader operator was seriously injured on 

December 13, 1979, when the Model 33-B Bucyrus Erie Shovel, 

with crane boom attached, rolled backward doym a grade and 

overturned. The boom striking the cab of the front-end 

loader. The crane was parked, on a grade, without being 

blocked to prevent movemento The shovel operator left the 

controls unattendedo 

30 C.F.Ro § 56.9-37 provides: "Mandatory. Mobile equipment shall not 

be left unattended unless the brakes are set. Mobile pment with wheels 

or tracks, when parked on a grade, shall be either blocked or turned into a 

bank or rib; and the bucket or blade lowered to the ground to prevent 

movement. 11 

PRELIMINARY FINDINGS 

On December 18i 1979, Respondent's employees~ under the direction of 

foreman Ray Roderick, were attempting to move a Bucyrus Erie crane up a 

grade (Tro 32) at Respondent 1 s Warren location. 

Earl Young, a shovel operator, was using a 50-ton Bucyrus Erie crane 

to dig out a settling pond (Tr. 11, 31, 250). At approximately 3:00 p.m., 

it was decided to move the crane up a grade out of the pit area to the top 

of a hill (Tr. 32). An initial problem occurred in moving the crane because 

the machine was front heavy due to the weight of the clamshell on the front 

end of the boom (Tr. 13, 29). The weight of the clamshell caused the crane 

to tip forward when being moved. After two attempts to ascend the grade (Tro 

33) the problem was resolved by backing the crane down the hill and taking 

off the clamshell (Tr. 33). After the clamshell was removed the crane proceeded up the hill with full traction (Tr. 29, 34, 49), and no problems with 

moving the crane occurred until it reached the point where the accident in 

question occurred (Tr. 30), approximately two-thirds the way up the grade 

(Tr. 35). 

To ascend the hill, it was necessary for the crane to make two turns 

on the roadbed (Tr. 48). The crane has no steering column and wheels as do 

cars or trucks. Instead, being a tracked vehicle, turns are made by using 

a lever to lock one track while the other track remains free to move. The 

resulting effect is that the crane pivots on the locked track and thereby 

changes direction, viz., to turn right, the right track is locked by a lever 

and the left track -rs-put in forward motion (Tr. 46, 47, 71-75). Another 

separate lever can be used to totally lock both tracks when, for example, 

the crane is on a grade (Tr. 71-75). 

The crane in question had been up the same hill before (Tr. 48) and 

could ascend almost any grade (Tr. 48, 99). The crane successfully negotiated the first turn required to ascend the grade. At the point of the 

1700 
second turn on the hill, the crane was stopped in order to be repositioned. 

It was necessary to straighten the direction of the boom relative to the 

road so that the crane could proceed up the hill without the boom getting 

caught in the trees adjacent to the roadbed (Tr. 19). The location of this 

second turn, as previously indicated, was approximately two-thirds of the 

way up the hill (Tr. 35). 

After straightening the crane, it was necessary to remove the track 

locks from their locked position in order to proceed the rest of the way up 

the hill. Earl Young was unable~ however, to get the track locks out of 

their locked position (Tr. 35). The apparent reason why the track or travel 

locks were difficult to remove was because of the backward pressure exerted 

on t~e locks by the weight of the machine on the incline (Tr. 103). 

At this point, Mr. Young motioned to David McKellar, who was at the top 

of the hill, to come down the hill in a 25-ton Michigan Loader (a wheeled 

vehicle) to assist him (Tr. 35, 52, 250) and to keep the crane from sliding 

(Tr. 84). Young was on the catwalk when he motioned to McKellar (Tr. 19). 

The purpose of so positioning the Michigan Loader, which is a large wheeled 

vehicle with a shovel blade on the front, was to relieve the pressure of 

the crane's weight on the lock, so that the travel lock could be lifted out 

of its locked position (Tr. 56, 76)o Before Mr. McKellar positioned the 

Michigan Loader behind the Bucyrus Erie crane, Earl Young applied the lever 

to lock both tracks (Trc 75)o Earl Young again attempted to release the 

travel lock, but was not able to do so (Tr. 35). When McKellar got behind 

the crane with the loader, the boom on the crane.was 20 feet in the air, 

the tr'cks were not blocked (Tr. 28-29, 89) and the tracks had not been 

turne, ~nto a bank or a rib (Tr. 23, 37, 38). At that point, Mr. Young 

thought that he had placed the digging locks back in their locked position 

and "got out" of the cab onto the catwalk in order to instruct Mr. McKellar 

to reposition the loader more directly behind the crane (Id. 79). Young 

told McKellar to "hold" him so he could release the lever that locked both 

tracks (Tr. 76). Young then released the lever which had been locking up 

both tracks and began moving the lever which locks one track at a time 

so as to get the crane to move. After trying this unsuccessfully, Young 

then pulled the other lever to attempt to lock up the machine again (Tr. 

75-79) and got out on the catwalk (Tr. 36, 41, 68-69~ 75-86). 

Although Mr. Young believed that the "digging locks"--which are engaged 

by the single lever which locks both tracks--had been set in their locked 

position, they were not properly engaged. When the digging locks are 

properly engaged, it is not possible for the machine to roll backwards 

(Tr. 109). Since the digging locks were not properly engaged, the crane 

started to roll backwards out of control. Mr. Young jumped from the catwalk (Tr. 23) to safety (Tr. 86-88). The crane toppled over and the boom 

struck Mr. McKellar who had remained seated on the Michigan Loader (Tr. 

21-24, 87-88). 

Mr. McKellar is paralyzed as a result of neck injuries received at 

this time (Tr. 25). The precise injuries sustained by Mr. McKellar and 

the extent to which he is paralyzed"was not shown. 

1701 
On December 26, 1979, after the crane had been righted and pulled 

to the top of the hill, it was examined by Edward T. Wells, a supervisory Metal and Nonmetal Mine Inspector for MSHA. The digging locks were 

tested and it was found that they worked properly when placed in the locked 

position. The swing and propel clutch (which are the same) were examined 

visually and appeared to be in good condition with no visible wear showing 

on the bands. There was some lubrication around the bands which could 

have caused the clutch to slip, but because the engine was damaged during 

the accident, the crane could not be moved to determine if the clutch 

would slip or was out of adjustment (Exhibit R-2)o 

Prior to the time the accident occurred~ Mro Young had experienced 

no trouble with the crane (Tr. 70). 

The fraction clutch on a crane, as distinguished from an automobile 

clutch, is designed to slip (Tr. 71, 101, 104~)0 

DISCUSSION AND ULTIMATE FINDINGS AND CONCLUSIONS 

MSHA's first contention, that the clutch on the crane was defective~ 

was not established in the evidence. This theory of violation was first 

enunciated by Inspector Edward T. Wells in a memorandtnn to Subdistrict 

Manager Edward J. Podgorski dated January 29~ 1980, in which Wells 

stated: 

"The facts show that three attempts were made to work the crane up the 

hill and the clutch slipped each time. This should have shown the operator 

and Raymond Roderick, Foreman, who was in charge of the operation that the 

clutch was defective and before any further attempts were made to climb the 

hill the reason for the clutch slipping should have been determined and 

corrective adjustments made." 

The question, however, arises whether the mere fact that the clutch 

slipped was an indication that it was defective. Petitioner primarily relies on the testimony of the crane (shovel) operator, Earl Young, that the 

clutch slipped and urges that it be inferred therefrom that the clutch was 

defective. 

But Mr. Young also testified that the clutch was designed to 

slip: 

"Q. And are the clutches -- there are several clutches 

that are involved in a machine like this. Are those the same 

as the clutch on an automobile? 

A. Not likely. No. They're friction clutches. 

Q. Now, a friction clutch, as compared to an automobile 

clutch, that they're designed to slip; the very way they work 

is by limited friction against them. They slip as they turn? 

A. That's right. 

1702 
Q. 'so that if you have your vehicle in a track lock 

position, it's in a track lock position and you propel the 

vehicle forward, you're going to have a certain amount of 

-- and you can't remove the track lock -- you're going to 

have a certain amount of clutch slippage as you work 

against that lock; is that correct? 

A. That's right. Yes." (Tr. 71). 

Mr. Young's explanation was fully supported by the testimony of 

Aldevard M. Robbins, a mechanic/welding operator who supervised the maintenance on the crane and whose testimony I find to be both probative and 

persuasive. He testified: 

A. Well, this shovel is also propelled by a series 

of fractions. Theyvre not called clutches as wevve been 

calling them all morning, theyvre friction, and theyvre 

designed to slip. If you lock it in gear, you couldnvt 

control it. It would be so quick and break your neck. 

They're designed to slip. You slip them all day long when 

it moves. That 1 s the design of the rigo (Tro 101). 

In view of the persuasive testimony quoted~ drawing the inference 

urged by Petitioner is not warranted. It is concluded that there was no 

violation of 30 C.F.R. § 56.9-2 as charged in Citation and Order No. 

201378. 

Turning to the standard allegedly violated in Citation No. 201379, 

30 C.F.R. 56.9-37, it is noted that it consists of two parts, the first 

specifying a procedure when mobile equipl'lent is "left unattended" and the 

second part providing procedures applicable when mobile equipment is 

"parked on a grade." 

Based on the findings set forth above, it is concluded that Earl 

Young, the crane operator, did leave the crane unattended. The task in 

which Young was involved immediately prior to and at the time the accident 

occurred was to use the loader (which is half the weight of the crane) 

operated by David McKellar to hold or block the crane from slipping or 

sliding down the hill. Considering the hazard inherently posed to the 

loader and its operator by this maneuver, Young's action in leaving the 

controls and stepping onto the catwalk for all practical purposes left 

the crane una~tended. Thus, he removed himself from being in a position 

to take prompt action should the crane start to move or slide. It is 

well-established in mine safety law that safety legislation is to be 

liberally construed to effect Congressional purpose, Magma Copper Company 

v. Secretary of Labor, 645 F.2d 694 (1981). 

I also infer from the facts that the crane operator, Earl Young: 

1. tried to engage the digging locks on the crane, and 

2. left the cab to go onto the catwalk, 

1703 
that he intended to brake the crane while he was on the catwalk and the 

loader was being positioned behind the crane. His attempt to brake the 

crane is evidence of his recognition that the circumstances obliged him 

to do so. 

It is thus found that Mr. Young left the crane, a piece of mobile 

equipment, unattended when the brakes (digging locks) were not set. This 

constitutes a violation of the first provision of 30 C.F.R. 56.9-37. 

It is also found that to accomplish the task of positioning Mr. 

McKellar's front end loader, Mr. Young intended to the crane on a 

grade as evidenced by his effort to use the lever to engage the digging 

locks so as to "lock-up" or brake the entire crane. Young then exited 

the c'ab of the crane (where the controls are located) and was either partially or entirely on the catwalk of the crane when the crane started to 

move downhill. Since the tracks were not blocked, the crane was not turned 

into a bank or rib, and the boom was not lowered to the ground to prevent 

movement, a violation of the second provision of 30 C.F.R. 56.9-37 occurred. 

I specifically note in this connection the conclusion of supervisory Mine 

Inspector Edward T. Wells that blocking should have been placed behind 

the crane before the operator left the controls (Exhibit R-2). 

To prove a violation of this standard, as with most standards, 11 noncompliance with the standard's terms need only be shown ••• "Eastern 

Associated Coal Corporation v. Secretary, 4 FMSHRC 835, 840 (May 3, 1982). 

The mere occurrence of the infraction of the safety standard constitutes a 

violation since liability is imposed on the mine operator without regard to 

fault. El Paso Rock Quarries, 3 FMSHRC 35, 38-39 (1981). The failure of 

the crane operator to properly set the brakes on the crane when he left it 

unattended resulted in the crane's moving downhill and colliding with the 

loader. Likewise, the fact that the crane was not blocked or turned into 

a bank when it was parked on the grade was an independent cause of the 

accident. Thus, the negligence of the crane operator to take any of the 

precautionary actions required by 30 C.F.R. 56.9-37 caused the accident in 

question and the resultant injury to the loader operator, David McKellar. 

It also should be noted that in its post-hearing brief, Respondent did 

concede that the crane operator "had not properly engaged the locks during 

operation." In Heldenfels Bros. v. Marshall, 636 F.2d 312 (5th Cir. 1981) 

(unpublished opinion), involving an accident which also resulted solely 

from fault on the part of an equipment operator, the Court reaffirmed 

the principle of both strict liability and vicarious liability peculiar 

to mine safety law: 

"Heldenfels claims they were denied due process by the 

imposition of a civil penalty for this alleged violation. 

Underlying this due process argument is Heldenfel's assertion 

that there was nothing they could have done to prevent the 

accident in question. The Secretary responds by pointing out 

the fact that the Act imposes strict liability on operators 

for violations of regulations. This argument misses the mark. 

1704 
Heldenfels is not claiming that it should not be held liable 

since it was not negligent; Heldenfels argues that it should 

not be held liable because it did not cause the violation of 

the regulation. However, Section llO(a)(l) of the Act, 30 

u.s.c. § 820(a)(l), authorizes assessment of a civil penalty 

against the operator of a mine when a violation of a mandatory regulation occurs at the mine. Thus, Congress has provided for a sort of vicarious liability to accompany the 

provision for strict liabilityo" (emphasis added) 

It is concluded that Respondent is liable for the violation of the 

mandatory safety standard committed by its employeeo 

Assessment of Penalty 

Within the context of the evidentiary record submitted here 9 the 

amount of penalty must relate to the degree of the Respondent mine operator's culpability in terms of wilfulness or negligence, the seriousness 

of the violation, the business size of the Respondent, the number of violations previously discovered at the mine involved, and the Respondent?s 

good faith in abating violative conditionso Respondent made no contention that it's ability to continue in business would be adversely affected 

by assessment of penalties at some particular monetary levelo 

Based on the parties' stipulations (Tr. ·3) I find that Respondent is 

a small mine operator (Exhibit M-3) with a moderate history of previous 

violations (21 in the preceding 24-month period). Since according to the 

Inspector's notes, the violative condition was corrected within the time 

fixed for abatement (Exhibit M-2), and since the machinery involved was not 

returned to service until inspected by an expert approved by MSHA (Tr. 3) 9 

I conclude that Respondent exercised ordinary good faith in abating the 

violative condition after notification thereof. These factors militate 

for a lessening of the penalty. I have previously found, however, that 

the negligence of the crane operator caused the accident which resulted 

in the serious injury of another of Respondent's employees. The mine 

operator is responsible for a violation conunitted by one of its employees 

and the negligence of the employee in committing the violation is imputed 

to it. The Valley Camp Coal Company, 1 IBMA 196 (IBMA 72-22, September 29, 

1972); Ace Drilling Coal Company, Inc., 2 FMSHRC 790 (1980). Since the 

violation also resulted in a grievous injury to one of Respondent's employees, the violation is found to be very serious. 

A penalty of $1,000.00 is assessed. 

ORDER 

All proposed findings of fact and conclusions of law submitted by the 

parties not incorporated herein are rejected. 

Citation and Order No. 201378 dated January 2, 1980, is vacated. 

1705 
Respondent is ordered to pay the Secretary of Labor the sum of 

$1,000.00 as a civil penalty for the violation of 30 C.F.R. 56.9-37 found 

to exist as charged in Citation No. 201379 dated January 2, 1980. 

/I . / ' 4 VJ!" .· ., . ,:.·' /Ji :).::&4- /, 7 • /'- - ;:;·"'~' _?~,_,,__ c {.. v ~ 

Michael A. Lasher, Jro Judge 

Distribution: 

David A. Snyder, Esq., Office of the Solicitor, Uo S. Department of 

Labor, John F. Kennedy Federal Building, Room 1803, Boston, MA 02203 

(Certified Mail) 

George S. Isaacson, Esq., Brann & Isaacson, 95 Park Street, Lewiston, 

ME 04240 (Certified Mail) 

1706 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY ANTI HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DAVIS COAL COMPANY, 

Respondent 

Docket No. WEVA 82-111 

A.O. No. 46-02208-030069V 

Docket No. WEVA 82-112 

A.O. No. 46-02200-03070 

Docket No. WEVA 82-206 

A.O. No. 46-02208-03072 

Docket No. WEVA 82-207 

A.O. No. 46-02208-03073 

Docket No. WEVA 82-231 

A.O. No. 46-03308-03074 

Marie No. l Mine 

DECISIONS 

Appearances: Covette Rooney, Attorney, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the petitioner; 

Paul E. Pinson, Esquire, Williamson, West Virginia, 

for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

By agreement of the parties, these cases have been consolidated 

and submitted to me for decisions on the basis of certain stipulations 

and agreements concerning the fact of violations, and all of the 

statutory criteria found in Section llO(i) of the Federal Mine Safety 

and Health Act of 1977, except for the question of the effect of the 

proposed civil penalties on the respondent's ability to remain in business. 

In connection with this issue, the parties request that I incorporate 

by reference the testimony and evidence adduced during the hearing held 

in Charleston, West Virginia, May 19, 1982, in the previous civil penalty 

proceedings involving these parties. My decisions in the previous 

civil penalty proceedings was issued on June 25, 1982; see MSHA v. 

Davis Coal Company, Dockets WEVA 80-565, etc. 

1707 
I Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

30 u.s.c. § 801 ~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 CFR 2700.1 et ~ 

Issues 

The issues presented in these proceedings are (1) whether respondent 

has violated the provisions of the Act and implementing regulations as 

alleged in the proposals for assessment of civil penalty filed, and, if so 

(2) the appropriate civil penalty that should be assessed against the 

respondent for each alleged violation based upon the criteria set forth 

in section 110 ) of the Act. In these proceedings, the crucial question 

presented is whether or not the assessment of civil penalties against the 

respondent for the violations in question will have an adverse impact 

on its ability to remain in business. 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria; 

(1) the operator 1 s history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator, (3) whether 

the operator was negligent, (4) the effect on the operator's ability 

to continue in business, (5) the gravity of th~ violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

Stipulations 

The parties stipulated to the following: 

1. Davis Coal Company owns and operates the Marie No. 1 Mine and 

both are subject to the Federal Coal Mine Safety and Health Act of 1977, 

Public Law 91-173, as amended by Public Law 95-164 (Act). 

2. The Administrative Law Judge has jurisdiction over this 

proceeding pursuant to Section 105 of the 1977 Act. 

3, Davis Coal Company is a small company producing 87,251 production 

tons annually, when the Marie No. 1 Mine is operating. 

4. Marie No. 1 Mine is the only mine owned by Davis Coal Company, 

and the mine is not currently producing. 

5. All of the citations and terminations thereof were properly 

served on the respondent by duly authorized representatives of the 

Secretary. 

1708 
Findings and Conclusions 

WEVA 82-111 

Fact of Violation 

The section 104(d)(l) order no. 876571, was issued on December 10, 

1980, and charged the respondent with a violation of mandatory safety 

standard 30 CFR 77.506 because proper overload and short circuit 

protection was not provided for the No, 12, 4 conductor cable, because 

the fuses were bridged out. Respondent does not dispute the violation 

and the citation is AFFIRMED. 

The parties stipulated that the violation resulted from ordinary 

negligence, that the gravity was moderate, and that the respondent 

demonstrated ordinary good faith in abating the citation. The 

also agreed that the respondent had a history of three prior violations 

of section 77.506. 

WEVA 82-112 

Fact of Violations 

The parties stipulated that Citation No, 9915472 was issued because 

the respondent violated 30 CFR 70.207(a) on September 11, 1981, by 

failing to submit a required respirable dust sample during the July-August 

1981 cycle for a mechanized mining unit. They also stipulated that 

Citation Nos. 9915534, 9915535, and 9915577 were issued because the 

operator violated 30 CFR 70.208(a) on October 13, 1981, by failing to 

submit three required respirable dust samples during the July-August, 

1981 bi-monthly sampling cycle for three designated areas, 

Respondent does not dispute the fact that the citations issued 

constituted violations of the cited safety standards. Accordingly, all 

of the citations are AFFIRMED. 

The parties stipulated that the respondent demonstrated ordinary 

negligence with respect to each of the aforementioned citations, that the 

gravity of the violations was null in that there was no probability 

of any injury occurring as a result of said citations, and that no 

action was required to abate the citations because bi-monthly sampling 

requirements can only be satisfied during the established bi-monthly 

period. They also stipulated that the respondent has a history of 2 

violations of 30 CFR 70·207(a) and 9 violations of 30 CFR 70.208(a), 

WEVA 82-206 

Fact of Violations 

The parties stipulated that Citation No. 9915251 was issued because 

the respondent violated 30 CFR 70.508 on April 8, 1981, because a 

1709 
periodic noise level survey had not been taken for the period 

October 1, 1980 to December 1, 1980. The parties also stipulated that 

Citations Nos. 9915683, 9915684, and 9915685 were issued because the 

respondent violated 30 CFR 70.208(a) on December 9, 1981, because of 

a failure to submit respirable dust samples for three employees during 

the October-November 1981, bi-monthly sampling cycle. The citations are 

all AFFIRMED. 

With regard to Citation No. 9915251, the parties stipulated that 

the respondent demonstrated ordinary negligence, that the gravity of 

this violation was null in that there was no probability of any injury 

occurring to any miner as a result of this violation, and that the 

respondent demonstrated ordinary good faith in abating this violation. 

They also stipulated that the respondent has a history of no violations 

of ,30 CFR 70.508. 

With regard to the remaining citations, the parties stipulated 

that the respondent demonstrated ordinary negligence, and that the gravity 

was null in that it was improbable that any injury would have occurred. 

They also agreed that the resnondent did not have to abate the violations 

because of the bi-monthly sampling Twelve previous citations were issued. 

The parties stipulated that the respondent demonstrated ordinary 

negligence with respect to the citation, that the of the violation 

was null in that it was improbable that any injury would have occurred 

as a result of this violation, and that no action was required to abate 

this citation because bi-monthly sampling requirements can only be satisfied 

during the established bi-monthly period. They also stipulated that 

the respondent had a history of 4 violations of 30 CFR 70.208(a). 

WEVA 82-231 

The parties stipulated that Citation No. 914357 was issued when 

the respondent violated 30 CFR 77.509(c) on December 14, 1981, because 

the fence surrounding the transformers was not at least six feet high 

in places, and was not at least 3 feet from high voltage energized 

parts. Citation No. 914359 was issued when the respondent violated 

30 CFR 77.1103(d) on December 14, 1981, because the area surrounding 

the transformers located near the mine portal was not kept free of dry 

grass and weeds. All of the citations are AFFI&~ED. 

The parties stipulated that the respondent demonstrated low negligence 

with respect to citation no. 914357 in that a lock had been placed on 

the gate but someone had raroved. They also stipulated that the gravity 

of the violation was low in that while it was probable that one miner 

could enter the station, no injuries of any type were expected as a 

result of this violation, that the respondent demonstrated extraordinary 

good faith efforts in abating the violation, and that the respondent 

had a history of no violations of 30 CFR 77.509(c). 

1710 
With regard to Citation No. 914358, the parties stipulated that 

the negligence was low, that the gravity of the violation was null in 

that it was improbable that the one miner in the area would suffer any 

type of injury as a result of this condition, that the respondent 

demonstrated extraordinary good faith in abating the violation, and 

that the respondent had a history of no violations of 30 CFR 77.509(a). 

With regard to Citation No. 914359, the parties stipulated that the 

respondent demonstrated ordinary negligence, that the gravity was low 

in that no injuries of any type were expected to affect the one miner 

in the area, that the respondent demonstrated efforts in 

abating the violation, and that the respondent had a history of no 

violations of 30 CFR 77.1103(d), 

In the previous cases, evidence and was adduced 

concerning the respondent s current financial condition; See: pgs. 23-25, 

of my previous decisions of June 25, 1982, As noted in decision, 

respondent filed a petition in bankruptcy on June 16, 1982 and I 

concluded that payment o the full assessments in the previous 

dockets would advers on respondent s 

business. incorporate reference in the 

of the previous testimony and evidence 

condition, included my previous findings and conclusions concerning 

this issue. 

In view of the foregoing findings and conclusions, respondent is 

assessed civil penalties for the violations which have been established 

as follows: 

Citation No. Date 30 CFR Standard Assessment 

876571 12/10/80 77. 506 $ 100 

Docket No. WEVA 82-112 

tion No. Date Assessment 

9915472 9/11/81 70.207(a) $ 25 

9915534 10/13/81 70.208(a) 25 

9915535 10/13/81 70.208(a) 25 

9915577 10/13/81 70.208(a) 25 

1711 
Docket No. WEVA 82-206 

Citation No. Date 

9915251 4/8/81 

9915683 12/9/81 

9915684 12/9/81 

9915685 12/9/81 

Docket No.• WEVA 82-207 

Citation No. Date 

9915748 1/13/82 

Docket No. WEVA 82-231 

Citation No. 

914357 

914358 

914359 

Date 

12/14/81 

12/14/81 

12/14/81 

30 CFR Standard 

70.508 

70.208(a) 

70.208(a) 

70.208(a) 

30 CFR Standard 

70.207(a) 

30 CFR Standard 

77. 509 (c) 

77. 509 (a) 

77,ll03(d) 

ORDER 

Assessment 

$ 25 

30 

30 

30 

$ 35 

Assessment 

$ 20 

20 

30 

Respondent IS ORDERED to pay the civil penalties assessed by me 

in these dockets, in the amounts shown above, ·within thirty (30) days 

of the date of these decisions, and upon receipt of payment by the 

petitioner, these proceedings are DISMISSED. 

Distribution: 

Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St~, Philadelphia, PA 19104 (Certified Mail) 

Paul E. Pinson, Esq., P.O. Box 440, Williamson, WV 25661 (Certified Mail) 

1712 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 15\9&2 

ROGER E. SAMMONS, 

Complainant 

Complaint of Discrimination 

v. Docket No. SE 82-15-D 

MINE SERVICES CO., a wholly 

owned subsidiary of DRUMMOND 

COAL COMP ANY, '!:_/ 

Short Creek Project 

Respondent 

DECISION 

Appearances: George C. Longshore, Esquire, Birmingham, Alabama, for 

the complainant; Peyton Lacy, Jro, Esquire, Birmingham, 

Alabama, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of discrimination filed by 

the complainant against the respondent pursuant'to section 105(c) of 

the Federal Mine Safety and Health Act of 1977. The complaint was filed 

with the Commission on November 12, 1981, after the complainant was 

advised by the U.S. Department of Labor's Mine Safety and Health 

Administration (MSHA), on November 5, 1981, that upon investigation 

of his complaint, MSHA determined that a violation of section 105(c) 

had not occurred. 

In his complaint, Mr. Sammons states that on September 21, 1981, 

he and a fellow employee (Billy Canada) were relieved of their duties 

as Ironworkers (connectors) under Article 16, Section (H) of the UMWAABC contract. He states further that grievances were filed, and on 

September 24, 1981, he and Mr. Canada also filed complaints with MSHA 

pursuant to section 105 (c) of the Act. According to Mr. Sammons his 

grievance was withdrawn without his consent and Mr. Canada was put back 

to work with full back pay. 

Mr. Sammons' complaint of alleged discrimination is stated as follows 

in his complaint filed with the Commission: 

While employed with Mine Services, Inc., at the 

Short Creek project there were no complaints 

made to me about my work. I feel therefore that 

the only reason for me being relieved of my duties 

'!:} At the hearing, respondent's counsel advised that Mine Services Company, 

a wholly owned subsidiary of Drummond Coal Company, is the proper respondent 

in this case, and he was permitted to amend his pleadings accordingly. 

1713 
was the complaints which I made about getting safe 

operators, safety belts, building cages and getting 

tag lines to be used on the larger pieces of steel. 

By letter dated December 4, 1981, and filed with the Commission on 

December 7, 1981, the respondent took the position that Mr. Sammons was 

unqualified to perform his job responsibilities and was relieved of his 

duties as allowed under the provisions of the existing Labor Agreement. 

A hearing was conducted in this matter in Birmingham, Aiabama, on 

May 6, 1982, and the parties appeared and participated fully therein. The 

parties filed post-hearing briefs, and the arguments presented therein 

have been considered by me in the course of this decision. 

Issues 

The principal issue in this case is whether or not Mr. Sammons has 

been discriminated against by the respondent because of protected safety 

and health activities. Additional issues raised by the parties are 

identified and discussed in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

et ~· 

2. Sections lOS(c)(l), (2) and (3) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2tand (3). 

3. Commission Rules, 20 CFR 2700.1 et ~· 

Testimony and Evidence Adduced by the Complainant 

George M. Ellis testified that he is the Director of Personnel for 

Drummond Coal Coal Company, that he holds similar duties with Mine 

Services, Inc., and that Mine Services is a wholly owned subsidiary of 

Drummond Coal Company. Mine Services performs construction work at 

coal mines and coal preparation facilities and is a signatory to the 

National Coal Mine Construction Agreement. Mine Services hires some 

of its personnel from the UMW local construction Panel, and some "from 

the street". Mine Services currently has 130 active employees and almost 

that many on layoff status due to the completion of some of its construction 

projects. In August or September of 1981, Mine Services had approximately 

200 to 210 classified employees on its payroll. Employment from the 

UMW Panel varies depending on the projects and staffing requirements, 

and he estimated that in the course of any given year less than 100 

employees would be hired from the Panel (Tr. 18-23). 

Mr. Ellis confirmed that since 1976, two employees were referred back 

to the Panel for unsatisfactory work, namely Mr. Sammons and Michael Ashby. 

Mr. Ashby was a carpenter referred back in 1977, and during this same 

1714 
period of time he estimated that hundreds of names have been referred 

to Mine Ser-wices from the UMW District Panel, and on many occasions the 

Panel has been exhausted for particular job classifications. By 

"referred back" he means individuals referred back during the first 30-days 

of their probationary work period. Anyone accused of misconduct, drinking, 

or insubordination would be discharged, rather than referred back to the 

Panel (Tr. 23-24). 

Henry E. Bates testified that he has worked for the Mine Services 

Division of Drummond Coal Company since 1976 in construction and engineering. 

He confirmed that Mr. Sannnons was hired as an ironworker sometime 

in August of 1981 and that he worked on the "sample house". He also 

recalled granting Mr. Sammons a half a day off to campaign for a union office, 

that he recalled a conversation with Mr. Sammons regarding his interest 

in bidding for the job of boom truck operator, and he also recalled Mr. Sammons 

commenting about some safety belts which did not fit properly and 

Mr. Sammons' desire to use his own personal belt. He also recalled granting 

him permission to use his own belt, and Mr. Sammons 1 complaint that the men 

on the boom trucks were not qualified. However, Mr. Bates indicated that 

he believed the men were qualified, and so informed Mr. Sammons (Tr, 24-29). 

Mr. Bates indicated that Mr. Sammons was one of a crew of men assigned 

to work on the sample house sometime during the first two weeks of September" 

The sample house was partially constructed at the time and Mr. Bates 

visited it on occasion and a new foreman was supervising the job. The crew 

was later moved to work on the refuse bin and a new foreman was assigned to that 

job. He identified a copy of a memorandum concerning a meeting on September 16, 

1981, with Mr. Sammons and certain union and company representatives 

concerning the progress made on the construction of the refuse bin, 

and he indicated that the memorandum was typed up from notes made at 

that meeting (Exh. R-2; Tr. 30-33). Mr. Bates indicated that seven men 

were hired as connectors, including Mr. Sammons, and after he and Billy 

Canada were initially assigned work at the sample house, they were 

transferred to do work on the refuse bin during the third week of 

September (Tr. 37). He identified Ihotographs of the sample house and 

refuse bin which were under construction (Exhs. C-1 through C-3). 

Mr. Bates described the work being performed by Mr. Sammons and 

Mr. Canada on the refuse bin during the time he observed them from the 

ground, and based on his observations of their work he concluded that 

they did not know how to use their tools properly in making certain steel 

beam connections, that they experienced other difficulties in removing a 

choker line.which had been disconnected from a crane and was attached to 

one of the beams, and that neither man would climb up the beam to remove 

the choker or to make the required connection. Atlhough he indicated 

that he never worked as an ironworker, Mr. Bates stated a prudent ironworker 

would be expected to, and would be willing to, climb up the diagonal beam 

and make the upper connection. Atlhough the upper end of the beam in 

question was not bolted to the building frame, Mr. Bates indicated 

that it was held firmly in place over a 11gusset plate in the web of 

the column", and the lower end of the beam was securely bolted in place 

1715 
(Tr. 40-53). 1 Mr. Bates also indicated that there was no way the beam 

in question could have fallen out of place and he saw nothing wrong in 

expecting the men to climb up and make the necessary connection (Tr. 58). 

Referring to a memorandum he prepared regarding the aforesaid event 

at the construction bin (Exh. R-1), Mr. Bates confirmed that he stopped 

Mr. Sanunons and Mr. Canada from using a basket connected to a crane to go 

up and attempt to make the beam connection, and that he asked another 

workman (Smith) whether he needed the basket. Smith replied "no", and 

after securing the bottom end of the beam with a second bolt and satisfying 

himself that the beam would not come out at the top, Mr, Smith climbed 

up the beam and attempted to make the connection. After discovering that 

the hole in the beam would not fit and would have to be 11burned", Smith 

came back down. Mr. Bates indicated that while he did not ask Mr. Sammons 

and Mr. Canada why they wanted to use the basket, he assumed that they 

showed a lack of confidence in their ability or some fright in climbing 

up the steel beam (Tr. 60). He confirmed that the connection was finally 

made by two men who went up to the upper end of the beam in a basket 

with a torch (Tr. 61). 

Mr. Bates stated that he previously referred one man back to the 

ill1W Panel, but he could not recall the details. He confirmed that he 

was not consulted at the time the grievances filed by Mr. Sanunons and 

Mr. Canada were settled and Mr. Canada was allowed to return to employment. 

Although there were some problems with the steel connections fitting 

properly on the refuse bin, he did not believe that the slow productivity 

was caused by those problems. He did not believe there were any safety 

problems with the construction work on the building in question, and 

he believed that Mr. Canada and Mr. Sammons were fearful of climbing 

the steel because of their inexperience (Tr. 67). He could not recall 

who eventually made the connection at the lower and upper ends of the 

steel beam, and he believed that both connections could have been made 

by someone climbing up the beam. He also stated that he had no reason 

to ask Mr. Sammons or Mr. Canada why they did not not climb up the beam 

to make the upper connection because 11 1 felt I shouldn't have to ask 

them; that a connector would have went on up there to it 11 (Tr. 68). 

He also confirmed his belief that there was no way anyone could simply 

look up the beam and determined that the connection could not be made 

(Tr. 68). 

Mr. Bates stated that of the seven connectors hired off the panel 

for the jobs in question, only Mr. Sammons and Mr. Canada were referred 

back to the Panel. Another individual, Mr. Gravlee, was not referred 

back, but bid on another job of lower classification after admitting that 

he was afraid to climb heights. Also, except for one man who has been 

sick, all of the other men referred from the Panel have been working 

(Tr. 69). 

1716 
Mr. Bates indicated that as a general rule an ironworker climbing 

a diagonal b~am would take his safety belt with him and put it around 

the piece he was climbing. He could not recall whether Mr. Smith had his 

safety belt around him when he climbed up the beam, but he did know that 

he "tied off" when he got to the top. However, he also indicated that 

a safety belt is always around an ironworker and that he uses a lanyard 

to tie off once he reaches the location where he is to work. Although 

he was not sure, he did indicate that a lanyard was not used in climbing 

the beam since it's difficult to use it while climbing (Tr. 70-71). 

On cross-examination, Mr. Bates stated that Mr. Sammons' complaints 

about the boom trucks was that he wanted those jobs posted so that they 

could be bid on. He advised Mr. Sammons that he had temporarily 

two conscientious men to the boom trucks and that Mr. Sammons filed no 

grievances regarding this incident '(Tr. 72). Mr. Bates described the: 

various duties of a "bolt-up" ironworker and a "connector" ironwor1'..erc 

described how connections are normally made, and he indicated that bol<> 

up work sometimes requires the use of a basket by the men performing 

the work, but that connection work is not done out of a basket (TL 7 L .. ) ~ 

Mr. Bates testified that at the time he observed Mr. Sammons and 

Mr. Canada working on the refuse bin, they said nothing to him about any 

difficulties they were having in making the beam connections. 

no complaints to him about the conditions under which they were 

to work, did not ask him whether they could get the basket, did not ask 

for a torch, and made no mention of any MSHA or OSHA safety regulations. 

While there are provisions in the labor-management contract for raising 

safety complaints, Mr. Sammons exercised none of his rights in this 

regard and made no complaints during the three and half weeks of 

his employment. He had no knowledge of any complaints that the beam 

holes were not matching up until the third step of their grievance, and 

at the time they were referred back to the panel he had no knowledge 

of any OSHA and MSHA violations (Tr, 80). 

Mr. Bates confirmed that he brought all of the recently hired 

connectors to the refuse bin construction site on September 18 for the 

purpose of observing their performance. Although they were given 

examinations, he personally never observed them doing any work and he 

wanted to determine how each man performed his job. As a result of the 

work performed on the refuse bin, he rated each man 1 s performance. 

Two connectors (Hogland and Smith), were rated "very good 11 ; two others 

(Gann and Harliss), were rated as "capable" but not as good as Hogland 

and Smith; and two were rated "not capable". He reported his observations 

and ratings to his supervisor Jerry Corvin in the memorandum of September 18, 

1981 (Exh. R-1), and after further discussion with Mr. Corvin, the decision 

was made to refer Mr. Sammons and Mr. Canada back to the Panel for 11 unsatisfactory work11 as connectors and the basis for that decision was 

that they were not 11 competent" connectors (Tr. 81-82). The previous work 

done by Mr. Sammons during his first two weeks on the job at the sample 

house had nothing to do with his decision to send him back to the Panel 

and his decision in this regard was based on what he observed during 

the work at the refuse bin (Tr. 84). 

1717 
Regarding Mr. Sammons' complaint about the boom trucks and any 

other compaYints, Mr. Bates testified as follows (Tr. 87-89): 

Q. Well, I gather the answer to my question is you 

don't recall Roger the reasons why he wanted you to 

post the job. Did he mention qualifications? 

A. Yes. He mentioned qualifications in his opening 

statement to me; something of that nature, about wanting 

qualified people. And I responded to him that I had 

qualified people when I placed the two people, qualified 

and competent people, on there. 

Q. Now, he complained about, and wanted you to post 

the bids for, the boom trucks because of what he felt to 

be a lack of qualified operators. Now, he also complained 

about the safety belts that the company had furnished him. 

Do you remember that? 

A. Yes. 

Q. And in your meeting on the 16th of September, he 

said that you need another crane, and you vetoed that. Just 

one crane is all you need. He said you need a basket. 

A. And I vetoed that. 

Q. Well, wasn't there a basket on the scene by Friday? 

A. There was a basket there, but I would not allow 

any connector to make a connection out of a basket. It's 

not done. There could have been twenty baskets there; I 

wouldn't have allowed them to use them to make a normal 

connection. 

Q. Well, all right, but the point is it occasionally 

becomes necessary to make abnormal connections, such as 

Mr. Smith made, isn't that ·correct, out of a basket? 

A. Right. And we have three or four baskets. 

Q. Do you recall that Roger was saying that we need 

a basket, meaning there wasn't a basket available to him 

right there? Do you recall that? 

A. I didn't take it that way. 

Q. And he said -- I gather Roger -- at least his notes 

reflect -- that he said that the going was slow -- in other 

words, he agreed with you that the production was somewhat 

slow -- because mainly of a safety situation. Now, he made 

that statement to you. 

A. That was his opinion, yes. 

1718 
Q. And then one of the last things Roger said to you 

was, "+won't do anything unsafe. If that means working 

slow, then that's the way I'll do it." There was no place 

to climb except on the outside of the steel; there was only 

one crane. That statement was made to you on Wednesday the 

16th. 

A. That's probably a true statement. 

was that a connector would have climbed it. 

would have had no problem with this. 

But my contention 

A connector 

Q. You concluded that Billy Canada and Roger Sammons 

both were incompetent. 

A. I did, 

Mr. Bates explained that a "basket" is a structure with posts and 

handrails around it and that it is hooked to a crane and hoisted up 

so as to enable a man to stand in a safe and secure area to work. 

In order to use such a basket in connection work, a second crane is 

required. One crane lifts the basket and the men, and the second crane 

hoists the steel beam up to the location where it is to be connected. 

In the case at hand, his decision was not to furnish a second crane to 

facilitate the use of a basket by the connectors. Mr. Bates also testified 

as to the delays and lack of production progress on the refuse bin and 

the foreman told him it was due to "the people" he had to do the job, 

and that it had prompted him to go to the refuse bin construction site 

to personally observe the work (Tr. 91). 

In response to questions from the bench, Mr. Bates confirmed 

that "on paper" Mr. Sammons was qualified as an ironworker connector 

and that during his initial work which involved the cutting of steel 

and construction of the sample house he received no complaints about his 

work. The complaints he received were connected with the fact that some 

of the structural steel parts for the sample house did not fit, and this 

resulted in a slowdown of the work. However, this was not true of the 

construction at the refuse bin. The only complaint he received from 

Mr. Sammons related to his contention that the company furnished safety 

belt was too big, and he permitted Mr. Sammons to use his own personal 

belt (Tr. 95). He confirmed that his judgment that Mr. Sammons was not 

a competent connector was based on his observations of his work on the 

refuse bin (Tr. 96), and he summed up his observations as follows (Tr. 98-99): 

A. I had observed Mr. Canada and Roger Sammons in 

the manner in which they climbed the steel and in the manner 

in which they used their tools, and I had a big job here to 

put together, and I needed competent, good connectors; that 

when a piece of steel went up there, they slapped a spud 

wrench in each end of it and "zap" over to the other end and 

get it in, and then get another piece. 

1719 
Two good connectors, on a simple structure, can erect 

50 or 100 pieces of steel a day, depending on what it is. 

I was getting two and three pieces of steel a day put in 

place. When I watched all the connectors, they just 

weren 1 t connectors. They just weren't connectors. Now, 

carpenters or some other qualifications, I don't know. 

But I know they weren't connectors. 

Q. Were they serving some kind of a probationary 

period during this on-the-job testing situation, or what? 

A. By contract you've got 30 days to observe a 

man to see that he can perform the work that he was hired 

to perform. And if he cannot perform the work that he was 

hired to perform, you have the right to ref er them back to 

the panel. 

Mr. Bates testified that 

on the refuse bin was some 18 

point a man would be expected 

connection was 30 to 32 feet. 

the height of the first horizontal beam 

or 20 feet above ground, and that the highest 

to climb to make the upper diagonal beam 

He confirmed that Mr. Sammons had never 

filed any formal complaints about safety belts, and as far as he knew 

the safety committee or union never filed any safety grievances or 

complaints concerning safety practices. He also indicated that regular 

safety meetings are held and he has always advised his men to report any 

safety matters to him (Tr. 101). He also confirmed that the safety 

committee could exercise their right and file a grievance if they believe 

that the use of a basket is required while doing steel connecting work, 

and he indicated that "they do have the option, if there is an unsafe 

practice, to even walk off from it" (Tr. 102). 

Mr. Bates confirmed that Mr. Sammons and Mr. Canada were hired and 

referred back to the Panel under Article XVI, Section (h) of the National 

Coal Mine Construction Agreement (Exh. J-1; Tr. 106). He conceded both 

were working "at heights", and that a cage would afford them a means of 

protection from falling, but he indicated that there are times when a man 

has no other alternative than to climb (Tr. 111), 

Roger E. Sammons testified that prior to working for the respondent 

he had experience in working at height~ climbing structural steel, and 

that he passed a test as an ironworker. He indicated that when he was 

first hired by the respondent at the sample house project he was elected 

to serve as the grievance committeeman by the workers at that project. 

The work there included the use of boom trucks to lift and load steel 

onto a flatbed truck and several of the employees on this project asked 

him to "confront management about the bidding of the boom trucks" 

(Tr. 131). He discussed the matter with Mr. Bates who told him it was 

none of his business, and when he discussed the matter of his safety belt 

with Mr. Bates, Mr. Sammons claims that Mr. Bates never answered him 

(Tr. 133). 

1720 
Mr. Sammons indicated that he and Mr. Canada worked at the sample 

house during the first two weeks of their employment and no one complained 

about the quality of his work. He then went to work on the refuse bin 

project and immediately experienced problems because the holes in the 

steel beams would not align and fit when they attempted to construct 

the structure, and he testified as to the work performed on that project 

during Monday through Wednesday of the week they started that project. 

After Mr. Bates expressed some disappointed in the rate of production 

at the project, he called a meeting at which he (Sammons) mentioned the 

need for another crane, and since two boom trucks were idle, Mr. Sammons 

believed that one of those trucks could have been used to hoist a cage. 

Mr. Sammons believed that one of those trucks could have been used to 

hoist a cage. Mr. Sammons stated that he also mentioned belts that 

would fit and taglines (Tr. 140-141). He confirmed that Mr. Bates agreed 

with "the safety part of the job" but disagreed that "extra equipment" 

such as cranes, baskets, or safety belts were required to do the job 

(Tr. 143). When asked whether Mr. Bates actually made the statement that 

no extra equipment would be provided, Mr. Sammons replied 11 that 1 s my 

interpretation of what he meant" (Tr. 143). When asked whether Mr. Bates 

specifically addressed safety belts, Mr. Sammons replied "Not specific. 

It was talked in general except for the crane and the basket 11 • As for 

the use of the basket, Mr. Sammons testified as follows (Tr. 143-144): 

A. He made it plain and clear on Thursday when 

they was building the basket that nobody was to use that 

basket except the bolt-up men. As I said, there was no 

access to the inside of the building, and it was a flat 

surface, vertical, and there was no way to station 

yourself there. 

Mr. Sammons confirmed that Mr. Gravlee bid off the connectors job, 

and he believed he did so because he was afraid of climbing the steel 

(Tr. 146). Mr. Sammons also confirmed the fact that the steel was wet 

from dew until about 9:45 a.m., on the day they were assigned to the bin 

structure, but he conceded that other work was performed while waiting 

for it to dry out (Tr. 148). Mr. Sammons also indicated that he discussed 

the matter of safety belts and a lanyard with Mr. Bates and advised him 

that they were needed to secure themselves to the outside of the structure, 

but Mr. Bates denied it. However, he stated that he was provided with a 

safety belt and lanyard but that they were too big, and he had to use 

his own belt (Tr. 151). 

Mr. Sammons described the work he performed on September 18, and 

indicated that he and Mr. Canada were working together on the steel 

structure, but that he made the upper connection at the "X" where the two 

beams crossed and then went to assist Mr. Canada make the lower one. 

Mr. Canada was experiencing a problem with alighment of the holes and 

it eventually had to be "burned". In his opinion, the holes could not 

be lined up sufficient enough to put a bolt through without being "burned" 

(Tr. 156-160). Mr. Sammons stated that he was tied off at the "X" 

location while making that connection (Tr. 161). He described the diagonal 

1721 
beam in question as a six-inch I-beam, ten feet long, and he indicated 

that from wh~re he was positioned he could see that it would not fit at 

the upper diagonal end and disagreed with Mr. Bates' opinion that he could 

not see whether a connection could be made (Tr. 162). 

Mr. Sammons indicated that it had always been his practice in working 

"in the building trades" and "around the construction industry" that "you 

don't go up a piece of steel". He explained that he thought the upper 

end of the beam would fall off the gusset and he felt that he needed 

a basket to go up because there was no for him to fasten himself 

on and felt that once he got there there would be no room for him to work. 

Both he and Mr. Canada agreed that the connection could not be made, 

and while they were in the process of securing a basket, they were instructed 

to climb down off the structure. Mr. Bates did not ask them why they did 

not climb up the diagonal, nor did he ask for an explanation as to why 

they needed a basket. Mr. Smith went up to look. He did so after 

unhooking his belt, and while at the top of the diagonal he was not 

tied to anything. Once there, Mr. Smith discovered that the connection 

. would not fit and Mr. Canada and Mr. Hoagland eventually went up in the 

basket and made the connection (Tr. 166). Mr. Bates did not discuss 

the matter further, and the next Monday he was told that he would be 

referred back to the Panel. After the was filed, Mr. Canada 

was reinstated, and although Mr. Sarrunons indicated that his 

was withdrawn, he stated that it was done without his approval and that 

he filed charges against the union person who withdrew it. He identified 

this person as Gene Hyche, and he indicated that he campaigned against 

Mr. Hyche for election to union office (Tr. 168). 

On cross-examination, Mr. Sammons testified as to hie prior 

experience for a year as an ironworker during 1977 to 1978, and he 

indicated that he did some work as a connector during this time for 

approximately two or three days a week. However, he indicated that at 

that time he was classified as a lead carpenter, but often worked out 

of that job classification. His connector work at that time was during 

the construction of a warehouse and hoist house, and it entailed the same 

time of steel connection work as in the instant case. He also testified 

as to some prior work in 1973 and 1974 in construction where he "assisted" 

as a connector, and he explained by stating that he did the work but was 

not paid the connector's wage scale (Tr. 168-181). 

Mr. Sammons indicated that he had previously served as a union 

grievance committeeman and committeeman, indicated that he was 

aware of the fact that he could have filed a safety grievance on safety 

issues, but that he did not file any safety grievance concerning any 

problems" connected with the refuse bin construction project 

in this case. He also conceded that he had a right to complain to OSHA, 

but did not (Tr. 184). With regard to the job for which Mr. Gravlee 

bid after he opted not to work as a connector anymore, Mr. Sammons 

conceded that he was aware of the fact that the pas for that job 

was in effect for three days, but that he (Sammons) did not consider 

bidding for it. Mr. Sanunons also claimed that Mr. Canada told him that 

Mike stated that Mr. Bates was going to get "rid of him", and 

that Mr. Rigsby stated this on the Thursday preceding the "test", but 

he admitted that he never heard Mr. Rigsby make the statement (Tr. 185). 

1722 
In response to questions from the bench, Mr. Sammons conceded that 

the fact th~t someone passes a written examination given for ironworkerconnectors does not necessarily mean that such a person can actually 

perform such work. While he was confident that he could perform the duties, 

he did not believe it was unreasonable for a project supervisor to 

conclude that someone who was afraid to climb could not (Tr. 191). 

With regard to the respondent's furnishing of safety belts, Mr. Sammons 

first testified that they were not furnished to the men and that he had 

to supply his own. He stated that he had his own belt when he first 

reported to the project, but that the company stated that tools and safety 

equipment would be supplied to him by the company. He then testified 

that he was supplied a belt but it was a "large size", and he conceded 

that the operator supplied belts for the men (Tr. 192-193). He also 

testified that the company provided six-foot safety lines and lanyards 

(Tr. 193), and that at the time he worked on the refuse bin project he 

was tied off to the steel beam where he was working with a six-foot 

lanyard (Tr. 199). Mr. Sanunons indicated that to his knowledge the 

respondent had never been cited by MSHA for safety belt or safety line 

infractions (Tr. 206). He also confirmed that when he was on the steel 

"diagonal" during the construction of the refuse bin he had a safety belt 

with him, and he conceded that Mr. Bates 9 opinion that he could not perform 

as well as Mr. Bates would like had nothing to do with the safety belt 

(Tr. 206). 

With regard to the boom trucks, Mr. Sammons confirmed that while 

he could have filed a grievance in his capacity as safety committeeman, 

he did not do so because he was not an "aggravated party". He explained 

that he did not want to bid on a boom truck operator's job, and even 

though he may have believed that there was something unsafe in the manner 

in which the boom trucks were being operated, he still did not file any 

grievance. He stated that he did not like to file grievances because it 

is time consuming and he also indicated that he did not consider contacting 

MSHA to observe the manner in which the boom trucks were being operated 

because "I don't believe he would have caught him in the act" (Tr. 198). 

Billy W. Canada, testified that he was hired by the respondent as 

an ironworker-connector along with Mr. Sammons and several others, and 

worked on the sample house and refuse bin. He confirmed that Mr. Gravlee 

was "a little afraid of the steel" and admitted as much to Mr. Bates. 

Mr. Canada believed that Mr. Sammons was capable of performing connector's 

work, and indicated that he was confident in working with him at heights. 

Mr. Canada confirmed the fact that the work production on the refuse bin 

was slow and he attributed this to 0 mainly, the safety factor, I would think" 

(Tr. 230). He explained that he requested a Mr. Mike Rigsby to put tag 

lines on two panels being installed on the bin, but the company had no 

rope. However, rope was furnished the next day. In addition, Mr. Canada 

referred to the fact that the steel was wet in the morning, and that 

even though a basket was not supplied, it could not be used with the 

panels. The panels were hoisted up with a boom, and while a basket may 

have speeded up production on the bin, such a basket could not have been 

used to install the panels (Tr. 233). 

1723 
Mr. Canada explained how he and Mr. Sammons connected the steel 

on the day Mir. Bates had them under observation. He indicated that the 

bottom part of the diagonal had to be "burned" because the holes did not 

match up. After the lower end was connected, Mr. Sammons was standing 

at the "X" location and from that point Mr. Canada stated 

that he could tell that the upper portion of the diagonal steel holes 

would not line up and that a torch would be required (Tr. 238). He and 

Mr. Sammons then removed the "choker line" off the crane which was holding 

the diagonal brace and came down to obtain a basket. Mr. Smith then climbed 

up the diagonal and attempted to attach the brace with a wrench, but he 

couldn't make the connection (Tr. 230). In his opinion, neither he 

nor Mr. Sammons did anything which would indicate a lack of confidence 

as a connector (Tr. 240). He indicated that Mr. Smith's decision to 

climb up the diagonal with the choker removed was his own decision, and 

he too would have climbed it if he thought he could make the connection, 

but he would not have done so unless the choker were attached to the 

steel with some tension on it (Tr, 241). 

With regard to safety belts, Mr. Canada stated that he was furnished 

one that fit him. As for the boom trucks, he stated Mr, Bates took the 

position that he could hire operators during the 60-day 

the jobs, and as the temporary safety committeeman, Mr, Canada 

that qualified people had to be hired to operate the trucks 

On cross-examination, Mr. Canada testified that his 

without posting 

believed 

242-243). 

ment with the respondent no safety.job grievances were filed, and no 

safety complaints were ever lodged with MSHA, other than the discrimination 

complaint filed by Mr. Sammons (Tr. 245). He could not recall what 

Mr. Sammons said to Mr. Bates when he informed him that the boom truck 

jobs should be posted. He did recall that Mr. Bates "was hostile", and 

stated that he had sixty days to post the jobs. Mr. Canada acknowledged 

that he said nothing to Mr. Bates about safety at the time of this 

incident, even though he was the safety committeeman (Tr. 249). As for 

the use of baskets while installing the steel at the refuse bin, Mr. Canada 

acknowledged that as a general practice it would not speed production 

while erecting the entire diagonal structure unless two cranes were provided, 

and that it would not be possible to connect the sheets of steel with the 

use of a basket. However, in the instant case, the basket was at the site 

and it would be a simple matter to use it to burn the upper diagonal 

(Tr. 249-250). 

In response to questions from the bench, Mr. Canada stated that he 

did not dispute the fact that Mr. Bates was free to choose anyone he 

desired as a boom truck operator during the initial 60-days. He also 

acknowledged that the two men he selected were capable and did the job, 

and that he and Hr. Bates simply had a difference of opinion as to whether 

other people should have been given an opportunity to bid on the jobs 

(Tr. 253). During the time the two men selected by Mr. Bates operated 

the trucks, no incidents occurred which placed any miners in jeopardy, 

and at no time during his employment did he file any safety complaints 

with state or federal inspectors (Tr. 253). 

1724 
In response to questions concerning safety belts, tag lines, and 

the operation of the boom trucks, Mr. Canada responded as follows: I 

Q. How about the question of whether or not am I 

to understand that the first time you and Mr. Sammons were 

working on the sample house where you didn't have any rope 

and the wind was blowing 20 knots or something, that slowed 

you down a little bit? 

A. That was on the refuse bin. 

Q. On this? 

A. Yes, sir. 

Q. Arn I to understand that you went up there without 

a rope? 

A, We had our rope, but we didn 7 t have a 

no, sir. Yes, sir, we did go up, 

Q. What was required? What was your understanding at 

that time as to what was required under the mandatory 

standards? Did you need both, or did one do? 

A. You needed both. 

Q. But they had no rope? 

A. No. 

Q. But you went up anyway? 

A. Yes, sir. 

Q. And the rope was provided the next day? 

A. Yes, sir. 

Q. Were you aware of the fact that you weren't required 

to go up there without a rope? 

A. Yes, sir. 

Q. But you went anyway? 

A. Yes, sir. 

Q. Can you explain that to me as a Safety Committeeman? 

A. Insanity, I guess. 

Q. Have you since regained your senses? 

A. I guess I was just trying to, as the saying goes, make 

a few brownie points. (Tr. 253-254). 

1725 
And, at pages 256-257: 

Q. Well, do you think Mr. Bates' hostility -- I mean, 

did Mr. Sammons say anything to provoke him; "pull his chain" 

a little bit, so to speak? 

A. No, I didn't think so. 

Q. He just went up to him and said: "I think you ought 

to bid the jobs," and all of a sudden Mr. Bates blew up and 

became hostile and said: "I'll do what I want to do?" 

A. That was my opinion. 

Q. Did you ever have any encounters with Mr. Bates 

prior to this, prior to your employment with -- I take it 

this is your first job with this company? 

A. No, I didn't think so. 

Q. He just went up to him and said: "I think you ought 

to bid the jobs," and all of a sudden Mr. Bates blew up and 

became hostile and said: 11 1 1 11 do what I want to do?" 

A. That was my opinion. 

Q. Did you ever have any encounters with Mr. Bates 

prior to this, prior to your employment with -- I take it 

this is your first job with this company? 

A. No, sir; I never met him before. 

Q. Why did you file your complaint with MSHA at the 

time you were referred back to the panel? What was the 

reasons that you had for filing that complaint? 

A. Well, because I felt like they had used had 

discriminated against me because of safety reasons. Because 

we had requested to post the boom truck and because we had 

requested safety lines and asked for things that other people 

out there, nobody else had asked for. They had more or less 

just done what they were told to do. 

Q. And the first time someone asked Mr. Bates to post 

the boom truck operators, you feel he got his nose out of 

joint over that, and that was one of the reasons why he 

referred you back? 

A. Yes, sir. 

Q. And you asked him for a safety belt for Mr. Sammons 

and he got a little aggravated at you over that, too, did he? 

1726 
A. Yes, sir. 

Q ,

1 But you had a belt? 

A. Yes, sir. 

Discussion 

The facts in this case show that in late August 1981, the respondent 

had a need for the services of several ironworker connectors to work 

on the construction of a sample house and a refuse bin at its Short Creek 

Project. Mr. Sammons was hired by the respondent together with six 

other connectors on August 24, 1981, from a multi-employer UMWA district 

panel maintained by the UMWA local. The panel is a nhiring hall" from 

which mine companies can obtain UMWA member workers with various 

construction skills, and complainant's hiring and employment was governed 

by the terms and conditions of the UMWA-ABC collective bargaining 

argeement. After passing a written test and a physical, Mr. Sammons 

reported for work on August 27, 1981. After working several days at an 

area known as "Flat top", loading and unloading steel beams, Mr. Sammons, 

with Mr. Canada and Mr. Gravlee,were assigned to steel erection work at the 

sample house and worked on this project for approximately the first two 

weeks in September without incident and without complaint by mine management. 

On or about Monday, September 14, after the construction work on 

the sample house had been completed, project superintendent Edward Bates 

assigned Mr. Sammons, Mr. Canada, and Mr. Gravlee to work on the construction 

of the refuse bin. Mr. Bates became dissatisfied over the slow progress 

being made on the construction of the bin, and·after receiving a report 

from the project foreman, Mr. Bates had a meeting with Mr. Sammons, 

Mr. Canada, and Mr. Gravlee on Wednesday, September 16. At that meeting, 

Mr. Bates voiced his displeasure over the slow progress made on the bin 

construction. According to Mr. Sammons, he and Mr. Canada defended their 

slow progress on the ground that they were not given an additional crane 

and basket, and were not furnished tag lines or safety belts. Mr. San:unons 

also mentioned the fact that the 11wet steel" slowed their progress and 

he indicated that "the going was slow because of a safety situation." 

Subsequent to the meeting, on Friday, September 18, Mr. Bates summoned 

all seven connectors to the refuse bin construction site, and he stated 

that he did so for the purpose of "testing" them to determine their 

competence as connectors by having them demonstrate their abilities as 

connectors. Mr. Bates outlined his observations and conclusions regarding 

the competence of the connectors as demonstrated to him during the "test" 

and he rated two of them "very good", two "average", and he concluded 

that Mr. Sammons and Mr. Canada lacked the ability to perform as connectors. 

Mr. Gravlee admitted that he was afraid to climb the steel and he was 

allowed to bid on another job and was retained in another job capacity. 

Mr. Sammons and Mr. Canada were referred back to the panel. Both of 

them filed grievances, and Mr. Canada's case was "settled" when the respondent 

agreed to take him back. Mr. Sammons' grievance was withdrawn by his union 

representative, and Mr. San:unons claims this was done without his permission 

and he stated that he has filed a complaint against this union official, 

an individual against whom he ran for election to a union office. 

1727 
In his ~ost-hearing brief the complainant argues that he was discharged because he made several complaints "on behalf of himself or others" 

with respect to unsafe practices at the mine, and that these complaints 

concerned a poorly fitting safety belt, lack of tag lines, and unqualified 

boom truck operators. Further, complainant asserts that he made himself 

unpopular with the mine superintendent when he and his co-workers insisted 

on strict adherence to safe work rules when climbing steel. Complainant 

concludes that the so-called "test" of September 18, at which.time Mr. Bates 

observed the work being performed by Mr. Sammons and Mr. Canada, was 

used as a pretext to terminate him, and that the actual reasons for his 

termination were his safety complaints and his insistence on observing 

safe work practices. In short, contestant maintains that his case is 

one involving retaliation rather than a refusal to perform work because 

of any s considerations. Even assuming that the latter is present, 

contestant maintains that any such work refusal was protected because 

it was made in good faith and in the reasonable belief that the work exposed 

him to a hazard. 

Findings and Conclusions 

The crucial issue in this case is whether Mr, Sammons was referred 

back to the panel because project superintendent Bates believed him to 

be an imcompetent connector or because Mr. Bates retaliated against him 

because Mr. Sammons had complained to him about safety hazards. Complainant's 

position is that his case is one of retaliation rather than work refusal 

(Pgs. 9-10, post-hearing brief). His contention is that the respondent, 

through Mr. Bates, retaliated against him because of the "many complaints 

he voiced concerning the lack of safety equipm~nt". However, it should 

be noted at the outset that the record in this case establishes that aside 

from the instant discrimination complaint, neither Mr. Sammons nor Mr. Canada, 

both of whom served as safety or grievance committeeman during their 

employment tenure with the respondent, ever filed prior grievances 

through the union grievance procedure. Further, the record also established 

that no safety complaints were ever filed by these individuals with MSHA 

or with any State or local mining enforcement inspector or agency. 

The UMWA-ABC Contract, Joint Exhibit 1, at pgs. 16-17, specifically 

covers safety procedures to be followed when an employee is required to 

work at heights. Article IV, Section O(ll)(a), provides for certain safety 

devices, but does not mention safety baskets. Subsection (b) provides 

that uno employee will work at heights such as on steel in hazardous 

weather conditionsu. Although Mr. Sammons testified that at times the 

"going was slow" due to early morning dampness and dew which made the 

steel slippery, or that windy conditions hampered production, there is 

no evidence that these conditions prevailed during the time periods in 

question in this case or that mine management required or expected the 

crew to work under those conditions. Further, Section P of the contract 

provides for specific procedures to be followed in matters concerning 

1728 
health and safety disputes, and there is no evidence that Mr. Sammons 

ever filed any safety grievance or complaint addressing any of the so-called 

"safety complaints" which he now brings into issue in these proceedings. 

A discussion of these complaints follows. 

The "boom truck" driver jobs 

I cannot conclude from the evidence and testimony adduced in this 

case that Mr. Sammons' complaints concerning the boom truck drivers had 

anything to do with an actual complaint concerning safety. I conclude 

that the so-called "safety complaint" was in fact a dispute or difference 

of opinion between Mr. Sammons and Mr. Bates over the posting of those 

jobs for bids. Mr. Sammons does not dispute the fact that under the 

contract Mr. Bates had the right to' initially assign personnel to those 

jobs. Mr. Bates confirmed that the dispute resulted from Mr. Sammons' 

insistence that the jobs be posted for bid, and Mr. Bates testimony that 

he assigned two conscienteous drivers to those jobs was confirmed by 

Mr. Canada. Mr. Canada also candidly conceded that the dispute was in 

reality a difference of opinion as to whether someone other than those 

men selected by Mr. Bates should have been given an opportunity to bid 

on the jobs. Further, Mr. Canada conceded that the men selected by 

Mr. Bates were capable, that they performed their job tasks, and that 

no incidents occurred during their performance which may have placed any 

miners in jeopardy. Finally, no MSHA, State, or union safety grievances 

or complaints were filed in connection with the "boom trucks". Accordingly, 

complainants' assertion that his "complaint" concerning these trucks 

was based on any safety considerations is rejected. 

Safety belts and taglines 

There is no evidence in this case that the respondent failed or 

refused to supply its personnel with safety belts or tag lines. While 

it is true that Mr. Sammons was initially given one which was to large 

for him, he was permitted to use his own. In addition, Mr. Sammons 

conceded that the company supplied the men with belts, that they also 

provided safety lines and lanyards, and that when he worked on the refuse 

bin he was tied off with a six-foot lanyard and had a safety belt. He 

also conceded that Mr. Bates' opinion concerning his work performance had 

nothing to do with the safety belt question. 

Mr. Canada testified that he was supplied with a safety belt that 

fitted him. As for the tag lines, he stated that he requested a Mr. Rigsby 

to install tag lines on two steel panels which were being installed 

on the refuse bin but that the company had none available. They were 

provided the next day, and there is no evidence that Mr. Sammons or 

Mr. Canada were required to perform work without the use of such taglines. 

To the contrary, the evidence in this case reflects that tag lines and 

belts were used by both men during the refuse bin construction project. 

With regard to the earlier work performed on the sample house, Mr. Bates 

testified that most of the work was conducted from the interior steps 

of that structure and there is no evidence establishing that respondent 

1729 
refused requests for the use of safety belts or tags lines, or that 

the men were required to work without them. As a matter of fact, 

Mr. Canada admitted that even though he had a safety rope and no tag 

line, he climbed the steel anyway even though he realized he was not 

required to do so. 

The use of "baskets" 

There is no evidence in this case that the use of a "basket" 

while making steel beam connections is mandated by any mandatory MSHA 

or State safety standard. I conclude and find that the issue concerning 

the use of a basket while making the steel connections in question is 

unrelated to any safety factors. Mr. Bates testified that baskets are not 

normally used to make such connections, and his decision not to use them 

on the refuse bin was dictated by his concern over slow production 

on that project and the fact that the use of a basket would have required 

another crane to be brought to the project site, Even so, he conceded 

that anyone may "walk away" from any situation if believed it was 

unsafe to perform a particular job task, and he recognized this 

on the part of any employee. He also indicated that the safety committee 

could have filed a safety grievance or complaint if they believed that 

a basket was required while making connections on a steel structure, but 

that this was never done, 

Mr. Canada acknowledged and agreed that the use of a basket to 

connect certain panels to the steel refuse structure was not feasible. 

In addition, his testimony that a basket was at the project site and 

readily available for use had Mr. Bates authorized its use contradicts 

the complainant's assertion at page 12 of his post-hearing brief that the 

crew had to fabricate a basket "on their own" for use on the refuse bin. 

As a matter of fact, the transcript pages referred to by the complainant 

to support the assertion that the crew had to fabricate their own basket 

contain absolutely no information in this regard. Mr. Sammons 1 testimony 

is that Mr. Bates would only permit the use of a basket for "bolt-up" 

work, and that Mr. Bates would not permit the use of "extra equipment". 

Mr. Sammons alluded to the fact that Mr. Bates told him that he would 

not allow the use of a second extra crane, and that the interpretation 

placed on the statement "no extra equipment" by Mr. Sarmnons was that 

no safety belts or safety baskets would be permitted. Considering all 

of the testimony in this case, and taking that statement in context, 

I reject any interpretation that Mr. Bates' concern about the use of 

any "extra equipment" translates into a complete disregard for the 

safety of the crew on the project in question. I conclude that Mr. Bates' 

decision concerning the use of a basket was based on his honest belief 

that baskets are not feasible when making such connections, that there 

are times when a competent connector must "climb the steel", that the 

routine use of baskets in such work require the use of an additional 

crane which must .be transported to the project site, and that the upper 

portion of the diagonal in question was firmly in place even though the 

connection had not been made. 

1730 
I conc1ude that Mr. Sammons' concern about the use of the basket 

stemmed from the fact that he believed he would not be able to stand 

erect while making the steel connection at the upper diagonal, and that 

he may have had to walk along a beam and hold on while reaching the 

connecting point. It seems to me that in this type of work a safety 

lanyard or rope, coupled with the use of a safety belt, would permit a 

connector to make the connection in a safe manner. Safety belts and 

lanyard ropes were provided and made available to the crew working on 

the refuse bin, and no one directed or instructed either Mr. Canada or 

Mr. Sammons to do any work without being tied off. As a matter of fact, 

Mr. Sammons conceded that he was tied off when he made the lower connection. 

Since he came to the conclusion through visual observation from his 

vantage point at the lower end of the diagonal that the upper portion 

would not fit, he opted not to climb up. At that point in time, Mr. Bates 

instructed him to come down, and another man climbed up and confirmed 

that the connection could not be made. 

In view of the foregoing, I cannot conclude that Mr. Sammons made 

any "safety complaints" to Mr. Bates concerning the use of a basket. 

Although Mr. Sammons may have felt more secure riding up in a basket to 

take a look at the upper steel diagonal, at this particular point in time 

no one directed him to climb up and his decision not to was his own. 

The retention of Mr. Gravlee and the reinstatement of Mr. Canada 

In his post-hearing brief contestant asserts that assuming that 

his case falls into the category of a 11mixed motive" case, the respondent 

has not shown that Mr. Sammons would have been terminated in any event. 

In support of this argument, contestant points to the fact that Mr. Canada 

was reinstated and that this was accomplished in exchange for the 

dropping of Mr. Sammons grievance. In addition, contestant points out 

that Mr. Gravlee is still employed with the respondent. 

The record adduced in this case reflects that Mr. Gravlee was assigned 

to another job after he voluntarily relinquished the position of connector, 

and he did so after expressing his fear and reluctance to climb to heights 

or to otherwise perform the job of a connector. Mine management apparently 

agreed to permit him to bid on another position, and I· see nothing out of 

the ordinary in this decision. Contestant's suggestion that the decision 

to keep Mr. Gravlee on in another job classification is an indication 

of unequal treatment is simply not supported by the record and is rejected. 

In my view, the facts and circumstances surrounding Mr. Gravlee are 

different from those presented in Mr. Sammons' case, and I fail to understand how contestant can argue that they are related. 

With regard to Mr. Canada's reinstatement, he declined to give any 

testimony concerning the rationale for his reinstatement and stated that 

his reasons in this regard were "personal ones" (Tr. 260-261). In rebuttal, 

respondent's personnel director Ellis testified that the decision to take 

Mr. Canada back was a management compromise decision made after the third-step 

grievance hearing in his case. The decision was dictated by the fact that 

management believed Mr. Canada could establish "on paper" that he had 

1731 
better qualifying 

that the unipn 

of Mr. Canada and the 

as a connector than did Mr. Sammons, and 

to settle both grievances through the reinstatement 

withdrawal of Mr. Sammons' complaint (Tr. 268-275). 

I see nothing sinister in the decision by mine management to reinstate 

Mr. Canada and not Mr. Sammons. Both grievances were adjudicated under 

the union contract procedures and I do not believe that proceedings under 

section lOS(c) of the Act should undercut those established practices 

where there is no showing of a violation of the anti-discrimination 

provisions of the Federal Mine Act. If this were permitted, any employee 

who is dissatisfied with the outcome of any grievance filed in his behalf 

by his union could cry "discrimination" and have his grievance case readj udica ted a second time in a second forum. I do not believe that 

Congress ever intended the Mine Act to be used as a "mini-NLRB!l to air 

union grievances or 

The so-called 11 test 11 of September 18th 

The manner in which an employer sees fit to determine the competence 

of its work force is a question that I prefer to leave to the employer 

and the work force. As indicated earlier, the parties are in agreement 

that any hired from the union panel may be referred back to the 

panel by the employer within thirty days if the employer is not satisfied 

with his work Section (h), Article XVI, p. 54, Joint Exhibit 1). 

Referring an employee back to a panel for "union activity" is "discrimination" 

under Article XXIII of the contract and it is a grievable offense. 

Mr. Sammons' union grievance (exhibit R-6}, was based on his assertion 

that he was qualified to do the work of a connector and that he was 

discriminated because of his union activities. Although the grievance 

states that management failed to provide him with sufficient safety 

equipment that "somewhat hindered" his productivity, I take note of the fact 

that the grievance was a grievance filed pursuant to Article XXI 

of the contract, rather than one based on safety or health considerations. 

Complainant's assertion at page 16 of his post hearing brief that the 

principal reason for him back to the panel was his refusal to 

climb the diagonal is ected. Further, his suggestion that his refusal 

to climb the diagonal is a "protected refusal to work" is rejected. 

Complainant's counsel conceded that this case does not involve the typical 

"refusal to work" because of any safety considerations (Tr. 125). Counsel 

also agreed that the thrust of Mr. Sammons' complaint is the assertion 

that after he and mine management (Mr. Bates) had a difference of opinion 

regarding the slow progress being made on the refuse bin construction, 

and coupled with the fact that Mr. Bates and Mr. Sammons had a previous 

"discussion" concerning the posting and bidding of certain boom truck 

operator jobs, Mr. Bates was prejudiced towards Mr. Sammons and found a 

convenient way to rid of him by returning him to the Panel (Tr. 126, 129). 

The issue here is one of 11 retaliation11 for making safety complaints, not 

a refusal to perform work because of safety considerations. The record 

1732 
in this case does not support any conclusion that Mr. Sammons was required 

or directed ,to perform work which was unsafe, that he refused to comply, 

or that he was discharged for that refusal. Under the circumstances, 

complainant's alternative theory of his case is rejected. 

Complainant asserts that the failure by the foremen who supervised 

his work to testify in these proceedings seriously undercuts the claim 

that he was incompetent. However, the burden of proof here is on the 

complainant, and if he believed that this testimony was critical to his 

case he should have subpoenaed them to testify or at least taken their 

depositions. He did neither. The fact that the respondent chose to 

rely on the testimony of the project superintendent on this issue does 

not dilute the weight to be given to his testimony, particularly when 

the complainant has had a full and fair opportunity to cross-examine him. 

In the final analysis, I believe that Mr. Sammons' discrimination 

complaint was motivated in large measure by his disagreement with Mr. Bates 

conclusion that he could not perform his connector duties to his 

Mr. Sammons admitted as much when he stated as follows (Tr. 203-204): 

Q. What if they provided you with the belt, 

provided you with the cage, provided you with the 

lifeline, and still during the 30-day period mine 

management was of the view that you weren't fast 

enough and they referred you back to the panel? 

Then where would you be? 

A. I would have a case before the National 

Labor Relations Board at this time. 

Q. You would? 

A. Yes, sir. 

Q. On what ground? 

A. Discrimination. Because I don't think I'm 

not competent. It's just like you think you're 

competent, and I know that I'm competent, and you 

know it yourself that you're competent. And it's 

just in human nature. I mean I'm just stating 

facts that I believe. And I resent anybody saying 

that I'm incompetent, and I want them to show me that 

rim incompetent. It takes a smart person to stick 

a wrench in a hole. 

After careful reivew and consideration of all of the testimony 

and evidence adduced in this case, I conclude and find that Mr. Bates' 

referral of Mr. Sammons back to the UMWA Panel was motivated by his belief 

that Mr. Sammons could not perform the duties of a connector in a manner 

which conformed with Mr. Bates expectations. As the project superintendent, 

Mr. Bates was authorized to supervise the work and to make those management 

1733 
judgments which were necessary to insure timely completion of the projects. 

As a matter 1of fact, there does not appear to be any dispute that under 

the contract Mr. Bates had the right to send anyone back to the panel 

within the initial 30 days of their employment if he was not satisfied 

with their performance. 

Although the record here suggests that Mr. Sammons and Mr. Bates 

may have had some disagreements concerning their respective authority and 

jurisdiction, having viewed them on the stand during their testimony 

I conclude that their "encounters" and "confrontations" resulted from 

their rather headstrong and firm personalities. In short, I believe 

that Mr. Sammons, in his eagerness to assert his leadership abilities 

and potential for advancement in his local union, found a ready opportunity 

to pursue his talents by his confrontations with Mr. Bates. By the same 

token, Mr. Bates reacted by letting Mr. Sammons know that he and not 

Mr. Sammons was the project superintendent. 

Although complainantvs post hearing arguments suggest that Mr, Bates 

found a convenient way to get rid of Mr. Sammons by simply sending him 

back to the panel, having viewed Mr. Bates on the stand during the hearing, 

he impressed me as an honest and straight-forward witness. I conclude 

and find that his motivation in referring Mr. Sammons back to the panel 

was based on his honest belief that Mr. Sammons could not perform the duties 

of connector, and that his decision was not based on any safety complaints 

made by Mr. Sailllllons. 

Conclusion and Order 

In view of the foregoing findings and conclusions, I conclude and 

find that the respondent's referral of Mr. Sammons back to the panel was 

not motivated in any part by any protected activity on his part. I 

further conclude and find that the record adduced in this proceeding 

does not establish that respondent has otherwise discriminated against 

the complainant by virtue of his mine safety activities. Accordingly, 

the complaint filed in this matter is DISMISSED, and the requested relief 

is DENIED. 

Distribution: 

George C. Longshore, Esq., Suite 708, Brown-Marx Bldg., Birmingham, AL 

35203 (Certified Mail) 

Peyton Lacy, Jr., Esq., Lange, Simpson, Robinson&· Somerville, 1700 

First Alabama Bank Bldg., Birmingham, AL 35203 (Certified Mail) 

1734 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Petitioner 

Vo 

OLD BEN COAL COMPANY, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

Docket No. LAKE 81-46 

AC No. 11-02544-03040 

No. 27 Mine 

DECISION 

Appearances: Miguel J. Carmona, Esq.~ Office of the Solicitor, 

U.S. Department of Labor, for Petitioner 

Before: 

Robert J. Araujo, Esq., and Derwood H. Rusher II~ Esq. 0 

for Respondent 

Judge Fauver 

This proceeding was brought by the Secretary of Labor under section 

110 of the Federal Mine Safety and Health Act pf 1977, 30 U.S.C. § 801 et 

~·· for assessment of civil penalties for alleged violations of a ~ 

mandatory safety standard. 

On August 22, 1980, an MSHA inspector issued a citation/withdrawal 

order at Respondent's Mine No. 27, charging two violations of 30 CFR § 

75.507 because of power connection points alleged to be in return air. 

The fundamental issue is whether they were in return air or intake 

air. If they were in return air, the charges must be sustained, 

with civil penalties. If the power connection points were in intake 

air, the charges must be dismissed. 

The case was heard at Evansville, Indiana. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pert:i.nent times, Old Ben operated an underground coal 

mine, known as Mine No. 27, in Franklin County, Illinois, which produced 

coal for sale or use in or substantially affecting interstate commerce. 

1735 
2. The mine included a longwall unit that mechanically mined 

large blocks of coal. 

3. No. 4 Entry South was used as a return air course. "Return 

air" is air that has circulated through the mine's workings and is 

directed toward the mine fan to be evacuated from the mine. 

4. The entry immediately to the west of 4 Entry South was 5 Entry 

South. A nonpermissible 1/ 7200 volt A.C. transformer was located in 

the fourth crosscut 2/ outby the longwall face, between 4 and 5 Entries 

South. -

5. About two crosscuts inby the transformer in 5 Entry South, there 

was a nonpermissible trailing cable coupling that fed electrical power 

from the transformer to a permissible Fletcher roof bolter, located off 

5 Entry two crosscuts outby the longwall face. 

6. At the time of an inspection on August 22, 1980, the transformer 

was energized and the trailing cable to the roof bolter was not zed 

7o Nonpermissible electrical equipment can generate electrical arcs 

when circuits are opened and closed. An electric arc can serve as an 

ignition source to cause methane gas or float coal dust to explode. 

This mine liberated methane gas. 

8. Nos. 4 and 5 Entries South were separated by stoppings; however, 

two stoppings were knocked out and two contained open regulators. The 

stoppings in the first and second outby crosscuts were knocked out so that 

equipment could be moved between the entries. The stopping in the third 

crosscut was intact. Air normally did not flow from 4 Entry, a return 

entry, into 5 and 6 Entries, which were intake entries, because air tends 

to flow from high-pressure points to low-pressure points, and the mouth 

area of 4 Entry South was the lowest pressure point. The stopping in 

the fourth crosscut was intact except for a regulator, about two feet 

square, and the stopping in the fifth crosscut was intact except for a 

regulator, about 2 1/2 feet square. At the time of the inspection on 

August 22, 1980, both these regulators were open, by the removal of 

concrete blocks, and drew air from 5 Entry into 4 Entry South. 

9. Prior to the inspection on August 22, 1980, Old Ben management 

had been monitoring the direction of air flow in 5 Entry South to ensure 

that only intake air was passing over the nonpermissible power connection 

points. The mine superintendent, Mr. Cavinder, had been checking the 

1/ "Nonpermissible" refers to an electrical connection that has not been 

certified and approved by MSHA because it is not enclosed in an explosionproof housing. 

J: ./ Old Ben's Exhibit No. 1, a mine map, designates the first crosscut 

outby the longwall face as O, and the rest 1, 2, 3, etc. However, for 

clarity in following the testimony, the crosscuts are numbered beginning 

with No. 1 (instead of 0) in this decision. 

1736 
flow of air in 5 Entry South three or four times a week for four or five 

weeks before this inspection. He personally took smoke tube readings 

to ensure that only intake air was passing over the nonpermissible 

electrical equipment and in each test found that this was the case. 

10. In certain areas in 5 Entry South, use of a smoke tube was 

required to test the direction of the air flow because of the airvs 

slow and almost imperceptible movemento In such areas, motion of the 

human body could create sufficient air turbulence to cause an erroneous 

appearance of the air direction. For this reason, the smoke-tube test 

had to be performed carefully and slowly so as not to disturb the natural 

flow of airo 

11. On August 21, 1980, MSHA Inspector Joe Tennant conducted a 

ventilation inspection at Mine No. 27, in the areas in which the transformer and roof bolter trailing cable coupling were located. Mr. Tennant 

had no criticism of the manner in which the air was cours over these 

connection points. 

12. On August 22, 1980, Inspector Lonnie D. Conner conducted a 

ventilation inspection at Mine No. 27. He was accompanied by Old Ben's 

Safety Inspector, Jim Clark, and UMW's Safety Representative, Gordon 

De Grave. · 

13. In 5 Entry South, Mr. Conner observed the nonpermissible 

transformer and the nonpermissible trailing cable coupling. He believed 

that these were in return air, constituted violations of 30 CFR § 75.507, 

and constituted an imminent danger. Based on these findings, he issued 

a citation/withdrawal order, which reads in pertinent part: 

Two pieces of nonpermissible electrical 

equipment were observed in the return air 

coursing from the #1 longwall section. A 

nonpermissible 7200 volts A.C. transformer 

was located at the 1200 foot mark between the 

4th and 5th south entries, and a nonpermissible 

trailing cable coupling to a roof bolting machine 

was located approximately 200 ft. inby the transformer; the transformer was energized. 

1737 
14. At the return end of the longwall, air was traveling about 

250 feet per minute. Most of the air was drawn by a fan down 4 Entry 

South to a slidinghood regulator. A turbulence at the end of the 

longwall face caused return air to circulate between 4 and 5 Entries 

South before being drawn finally into 4 Entry South. Return air mixed 

in this turbulence and entering 5 Entry South re-entered 4 Entry 

South in the first two outby crosscuts. Inby the trailing cable coupling 

at issue in 5 Entry South and extending near the next inby crosscut, 

the air was stale, i.e., there was barely any movement. The air passing 

over the coupling at issue was intake air moving inby to mix with the 

air moving from 5 Entry South into 4 Entry South at the next inby 

crosscut, which had no stopping. The preponderance of the evidence 

establishes the ventilation pattern and direction of air flow as 

shown in Old Ben's Exhibit No. 1 and by the testimony of Old Ben's 

witnesses explaining such exhibit. 

DISCUSSION WITH FURTHER FINDINGS 

Based on the citation/withdrawal order~ the Secretary charges two 

violations of 30 CFR § 75.507~ which states~ 

Except where permissible power connection units 

are used, all power connection points outby the 

last open crosscut shall be in intake air. 

It is the Secretary's main contention that the transformer and 

trailing cable coupling were in return air and thus in violation of 

§ 75.507. The Secretary proposes a civil penalty of $1200 for each 

alleged violation. 

The inspector testified that, in 4 Entry South, about 350 feet 

outby the longwall, he heard the longwall machine operating and saw 

dust moving from 4 Entry South into 5 Entry South through an open 

crosscut. He stated that he traced this air flow down 5 Entry South 

and observed its exit in the open regulator in the crosscut in which 

the transformer was located. He did not use a smoke tube or any other 

instrument to determine the air flow, but stated that, "If you have 

enough movement there, it's very easy to put dust in suspension and 

see which way the air is blowing" (Tr. 38). He made two "tests" to 

determine the air flow, one at the transformer and one at the roof 

bolter, by patting his clothing to cause dust to be suspended in the 

air. 

1738 
I find, based on a demonstration of using a smoke tube, which was 

conducted in the hearing room, and the testimony of the witnesses who 

make smoke-tube tests at the transformer, roof bolter, and trailing 

cable coupling sites, that the inspector's method of visual observation 

and patting his clothes to send dust in the air was not an.accurate or 

adequate method in the circumstances. The air flow at these sites was 

too slow to warrant this approach, and required a smoke tube test for 

a reasonable and accurate determination of the direction of the air. 

About one and a half hours after Inspector Conner issued the citation/ 

withdrawal order, members of mine management, including Mr. Wagner~ mine 

manager, and Mr. Young, general mine superintendent, questioned his finding as to the air direction at the sites and requested Mr. Conner to go 

with them to the cited areas to perform smoke-tube tests. Mr. Conner 

refused. After these discussions, Mr. Wagner and Mr. Young went to 

5 Entry South and conducted a number of smoke-tube tests. These tests, 

which I find were properly performed, revealed that both of the nonpermissible power connection points were in intake, and not return air. 

Although Inspector Conner testified that the UMWA safety representative, Mr. De Grave, confirmed his opinion that return air was 

passing over the nonpermissible connections, Mr. De Grave's testimony 

did not agree with the inspector's account but supported the testimony 

of Messrs. Cavinder, Wagner, and Young. Mr. De Grave stated he was 

a neutral observer during the MSHA inspection, and that he did not 

feel it was his role to question the inspector's method of investigation 

or in any other way interfere with the investigation. He also testified 

that, "When Mr. Conner refused Mr. Wagner to go back into the section, 

it put a little spark into my conscience that I thought Mr. Conner 

might have had a doubt of his own on the air" (T.150), so the next 

day Mr. De Grave returned to 5 Entry South and made his own smoke-tube 

tests. In front of the transformer, he found "Very slight movement 

intake of air." His other tests, totaling six, confirmed that the 

air passing over the transformer and the trailing cable coupling was 

intake and not return. 

There is no evidence suggesting a change in the air flow conditions 

in the cited areas from the time of Mr. Conner's inspection until the time 

smoke-tube tests were made by mine management or by Mr. De Grave. I find 

that the tests made with a smoke tube establish, by a preponderance of 

the evidence, the air flow direction in the cited areas as of the time of 

Mr. Conner's inspection. In addition to the greater weight of the testimony, 

this finding is supported by the careful demonstration of the smoke-tube 

test in the hearing room, where one's senses could not reasonably determine 

the direction of air current but the smoke tube test could do this. The 

demonstration also showed convincingly that movement of the body or arms 

can affect air flow and cause an erroneous impression of the actual 

direction of air flow. 

1739 
While acting in a good faith belief as to the direction of air flow 

he observed, the inspector relied upon a method of determining air flow 

that was not reasonably reliable in the mine atmosphere existing in this 

case. 

CONCLUSIONS OF LAW 

L The Commission has jurisdiction over the parties and subject 

matter of this proceeding" 

2o The Secretary did not meet his burden of proving the violations 

charged in the citation/withdrawal ordero 

ORDER 

WHEREFORE IT IS ORDERED that this proceeding is DISMISSEDo 

tJ~:r~v~ WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

Miguel J. Carmona, Esq., US Department of Labor, Office of the Solicitor, 

230 South Dearborn St., 8th Floor, Chicago, Ill. 60604 

Robert J. Araujo, Esq., Derwood H. Rusher, II, Esq., Counsel, Old Ben Coal 

Company, 69 West Washington St., Chicago, Ill. 60602 

1740 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

THE NEW RIVER COMPANY, 

Contestant-Respondent 

Contest of Citations and Order 

v. 

SECRETARY OF LABOR, 

Docket Nos. WEVA 82-93-R 

WEVA 82-94-R 

WEVA 82-95-R 

WEVA 82-96-R 

WEVA 82-97-R 

WEVA 82-98-R 

WEVA 82-99-R 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent-Petitioner 

Appearances: 

Before: 

DECISIONS 

Civil Penalty Proceeding 

Docket No. WEVA 82-173 

A.O. No. 46-01297-03059 

Siltix Mine 

C. Elton Byron, Jr., Esquire; Beckley, West Virginia, 

for the contestant; Aaron M. Smith, Attorney, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for the respondent. 

Judge Koutras 

Statement of the Case 

These consolidated proceedings concern contests filed by the contestant 

challenging the propriety and legality of the captioned citations and 

order issued to the contestant pursuant to Sections 104(a) and 104(b) of 

the Federal Mine Safety and Health Act of 1977. The civil penalty case 

concerns a proposal filed by MSHA seeking civil penalty assessments for 

the alleged violations in question. Hearings were held in Charleston, 

West Virginia, and the parties appeared and participated fully therein. 

Issues Presented 

The issues presented in these proceedings include the question of 

whether the violations in fact occurred, whether the times fixed for 

abatement were reasonable, whether the inspector abused his discretion in 

issuing the withdrawal order in question, whether the back-dating of 

the citations was proper, and the appropriate civil penalties which should 

be imposed for the violations which have been affirmed. Additional issues 

raised by the parties are identified and disposed of in the course of 

these decisions. 

1741 
Applicable Statutory and Regulatory Provisions 

r 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 U.S.C. § 801 et ~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seg. 

Stipulations 

The parties stipulated to the following (Tr. 6-7): 

1. The new River Company is the owner and operator 

of the Siltix Mine, and the mine is subject to 

the Act. 

2. The presiding Administrative Law has 

jurisdiction to hear and decide these cases. 

3. The inspector who issued the citations and order 

which are the subject of these proceedings is a 

designated authorized representative of the Secretary 

of Labor. 

4. True and correct copies of the citations and order 

were served upon the operator. 

5. The copies of the citations and order (exhibits G-1 

through G-6) are authentic copies and may be admitted 

as such, but not for the truth or relevance of the 

statements made therein. 

6. Contestant-respondent's history of prior violations 

for the 24-month period preceding the issuance of 

the citations in these cases consists of 176 violations. Eight of these violations are violations of 

mandatory standard section 75.1722(a), 30 are for 

violations of section 75.400, and 22 are for violations 

of section 75.503. 

7. Payment of the penalties assessed in these proceedings 

will have no effect on the operator's ability to continue in business. 

8. The Siltix mine had an annual coal production of 

175,000 tons, and the mine employs approximately 

135 individuals. 

The parties are in agreement that citation no. 888867, October 29, 1981, 

citing a violation of section 75.400, is no longer in issue in these 

proceedings because the contestant did not contest the civil penalty 

1742 
assessment made by MSHA and has paid the assessment. Contestant's 

counsel agr~ed that Docket No. WEVA 82-99-R, may be dismissed since 

contestant no longer contests the citation in question. 

The parties were also in agreement that none of the citations 

which were issued by the inspector in these proceedings (exhibits G-1 

through G-5) are "significant or substantial" violations under the Act. 

Contestant's counsel asserted that except for the section 104(b) 

order of withdrawal (exhibit G-6), contestant does not contest the fact 

of violation with respect to the remaining citations issued by the 

inspector in these proceedings. That is, contestant does not dispute 

the fact that the conditions or practices described by the inspector 

on the face of the citations which he issued constitute violations of 

the cited mandatory safety standards (Tr. 13). 

MSHA's testimony and evidence 

testified that he has been 

employed as a mine inspector in the Mt. Hope, West Virginia, office 

since August 1977, and that prior to that time he was an inspector 

trainee and engineering technician at that office from May 1974 to 

August 1977. During his employment he has participated in a number of 

inspector training programs, including attendance at the Mine Safety 

Academy at Beckley, West Virginia. During his tenure as an MSHA 

inspector he has conducted approximately 700 to 800 mine inspections. 

Mr. Stevens confirmed that he conducted an inspection at the mine 

in question on October 28, 1981, as part of a regular inspection of the 

mine which began on October 14. He arrived at the mine at approximately 

7:30 a.m., and after checking the preshift examination books he proceeded 

underground to conduct his inspection, and he was accompanied by a union 

representative as well as the company's safety inspector Michael Hess. 

They entered the mine through the slope-bottom (incline drift) and 

proceeded up the number 2 belt entry toward the Number 3 left working 

section. 

Mr. Stevens identified exhibit G-1 as citation No. 888861 which he 

issued for a violation of section 75.1722(a), after he observed that a 

guard for the No. 2 conveyor belt tail roller had been removed from 

the equipment and was lying nearby. Mr. Hess could not explain why the 

guard had been removed, but he immediately replaced it and fastened 

it in place with a piece of wire. Mr. Stevens advised Mr. Hess that 

the temporary fastening of the guard would suffice temporarily but that 

"it would have to be done better" at a later time. He asked Mr. Hess 

as to how much time was needed to properly correct the condition, but 

Hr. Hess did not know, Mr. Stevens then fixed the abatement time as 

November 3, 1981, after he had gone back to the mine and confirmed that 

the condition cited had been corrected. At the time he observed the 

condition no one was in the area (Tr. 15-24). 

1743 
Mr. Stevens confirmed that he issued citation No. 888862 (exhibit G-2) 

after obser~ing that a piece of rubber conveyor tail roller guarding had been 

turned up, thereby exposing the roller. The rubber guard had been fastened 

to the structure with one bolt and Mr. Hess merely turned it down, thereby 

guarding the roller. Mr. Stevens conceded that he advised Mr. Hess that 

he would accept the rubber guarding as abatement of the citation at that time, 

but he also indicated that he advised Mr. Hess that a metal guard 

was needed to replace the rubber one and that it could be constructed at a 

later time. 

Mr. Stevens stated that at the time he observed the second guarding 

condition no one was in the area, and the area is not one where miners 

have to travel through to get to their work stations. In addition, normal 

operating procedure calls for the belts to be shut down when they are 

cleaned, and in these circumstances he believed the likelihood of any 

injury resulting from the violation to be remote. He also believed that 

the operator should have been aware of the guarding condition through 

the preshift process which is required (Tr. 24-27). 

Mr. Stevens confirmed that he issued citation No. 888862 (exhibit G-3) 

after discovering the presence of float coal dust along the No. 7 belt 

conveyor for a distance of some 20 feet. He discussed the condition 

with Mr. Hess, and while Mr. Stevens did not believe that float coal 

dust per se was hazardous, he believed it would be if it were placed in 

suspension and by a spark. This could result in a possible fire 

or explosion. However, since nearby electrical cables were properly 

insulated, and he detected no stuck belt rollers, he believed that the 

possibility of an accident or an "occurrence" to be remote. 

Mr~ Stevens stated that he advised Mr. Hess that a citation would 

be issued for the float coal dust condition, and that he also advised 

him that the area cited should be rock-dusted. Since no rock dust was 

readily available and needed to be brought in to the are~ he fixed the 

abatement time for the next day, October 29th. He terminated the 

citation on that day at 9:00 a.m. when he confirmed that the area had 

been rock-dusted, and he believed that the operator exhibited very good 

faith compliance in correcting the conditions within the time fixed for 

abatement. He also believed that the operator should have been aware 

of the presence of the cited float coal dust through a preshif t examination 

(Tr. 27-31). 

Mr. Stevens confirmed that he issued citation No. 888864 (exhibit G-4) 

after observing an accumulation of loose coal and coal dust 3 to 18 inches 

deep along the sides and under the conveyor belt in the 3rd left section 

in an area where a roof fall had occurred. The remaining roof had been 

timbered and supported and the conveyor belt was installed to run over 

the fall and under the newly supported roof. The accumulations extended 

for a distance of approximately 100 feet. 

1744 
Mr. Stevens stated that he discussed the accumulations condition 

with Mr. Hess and advised him that the area needed to be cleaned up. 

He asked Mr. Hess how much time he required for abatement, and Mr. Hess 

informed him that he did not know and that he would have to first discuss 

the matter with mine management, but that the conditions could probably 

be taken care of "in the morning". 

Mr. Stevens stated that while the accumulations conditions he cited 

presented a possible fire hazard, he considered this occurrence to be 

remote because all electrical cables in the area were properly insulated 

and he detected no stuck conveyor rollers. Mr. Stevens stated that he 

fixed the abatement time as 8:30 a.m. the next morning, October 29, and 

he believed that this was a reasonable time because the area where the 

accumulations were present was not that extensive and he believed that 

one man working one shift could have cleaned up the area and achieved 

abatement (Tr. 31-34). 

Mr. Stevens confirmed that he issued citation No. 888865 (exhibit G-5) 

after finding a permissibility violation in the 3 left section. Re 

found that there was an opening present on a continuous mining machine 

contactor panel in excess of .004 inches, and he detected this by means 

of a feeler guage which he inserted into the opening. He discussed 

this condition with Mr. Hess, and an electrician was immediately summoned 

to the area. The electrician closed the opening, and after inserting 

his guage and determining that it could not penetrate the panel area, 

Mr. Stevens was satisfied that abatement had been achieved. Mr. Stevens 

stated that the operator achieved rapid compliance, and since he detected 

no methane present in the area he determined that any hazard resulting 

from the violation was improbable. 

Although Mr. Stevens stated that weekly permissibility examinations 

are required, he conceded that the condition he cited may have occurred 

during the intervening weekly inspections and that the operator may not 

have known about the excess opening (.005 inches) in the equipment panel 

in question. 

Mr. Stevens stated that after the completion of his inspection during 

which he observed all of the conditions which resulted in the issuance 

of all of the five citations in question, he came out of the mine and 

proceeded to write all of the conditions down on p.aper from notes which 

he had made during his inspection. He discussed all of the conditions 

with Mr. Hess, and he was satisfied that Mr. Hess was aware of the conditions 

which he found and what was needed to achieve compliance. However, upon 

discovering that he did not have a supply of citation forms with him, 

he advised Mr. Hess that he could return to his office to obtain s9me, 

simply write them down on paper, or return the next day and issue them 

in writing on the citation forms. Mr. Stevens stated that Mr. Hess agreed 

with this procedure, and that mine Superintendent Bays voiced no 

objections. 

1745 
Mr. St~vens testified as follows concerning the conversation with 

Mr. Hess and Mr. Bays (Tr. 37-38): 

Q. Well, how did the inspection -- after you 

issued this citation, how did the inspection proceed 

from that point? 

A. Well, after we finished that, we -- I can't 

exactly remember what we did after that, but we came 

outside and I wrote out my citations on my paper, and 

when I got ready to transfer them to my citation forms, 

I discovered that I had run out. So I discussed this 

with Mike. 

Mr. Bays wasn't in the room at the time, but 

I talked to Mike and told him, I said, 11 I 1 ve run 

out of forms". I said, "now, would it be all right 

if I issue these tomorrow and backdate them for today?" 

Mike said, "Well, I'll have to check with Van", and 

we talked to Mr. Bays, and he came in, and we discussed 

it, and I told him about them. He said, "Well, is 

Mike aware of the violation, he knows where they 

are?" I said, "Yes, sir." 

And he said, "Well, it 1 s okay with me. 11 And 

I told him, I said, "If you want, I will go back to 

the office and get the forms, and do.them now." He 

said, "That's all right." I said, "Well, if you 

want me, I will write them down on a piece of paper 

and hand them to you that way. 11 I said, "Would that be 

sufficient?" He said, "No, that's all right, just so 

Mike knows where they are, so everything is understood." 

And then we agreed on abatement times and everything, 

sitting there in the mine office, outside. 

* * * 

Q. Both agreed that that procedure would be fine? 

A. Yes, sir. 

Mr. Stevens testified that he returned to the mine on October 29th, 

and checked the areas which he had inspected the previous day. He 

determined the float coal citation had been abated by rock-dusting 

the affected area. The permissibility citation had already been abated 

on October 28, and the guarding citation for the No. 7 belt tail roller 

had also been abated to his satisfaction that same day. The other guarding 

citation for the No. 2 belt tail roller still had until November 2, to 

be abated and he did not check it out on October 29, although he subsequently 

terminated the citation on November 3, after confirming that the condition 

had been corrected (Tr. 34-40). 

1746 
With regard to the coal accumulations citation No. 888864, Mr. Stevens 

testified that when he went back to the area on October 29, he found 

that no work had been done to clean up the cited accumulations. He 

discussed the matter with Mr. Hess, and was informed by Mr. Hess that the 

shift foreman had advised him that the accumulations condition had been 

taken care of. Since Mr. Stevens saw no evidence of any clean-up or 

rock-dusting efforts regarding the accumulations, he orally advised 

Mr. Hess that a section 104(b) withdrawal order was on the 3rd left belt 

conveyor section, and he did so at 9:22 a.m. Mr. Stevens then continued 

his inspection, and after coming out of the mine that same evening he 

reduced all of the citations, including the section 104(b) withdrawal 

order and the tenninations for the abated citations, to writing on the 

MSHA citation forms, and gave them to Mr. Hess. Mr. Stevens conceded 

that prior to this time, none of the citations were reduced to writing 

and none were served on the operator in writing, and but that he verbally 

advised Mr. Hess when they were underground on October 28th, that citations 

for the violations would be issued. 

With regard to the accumulations citation No. 888864, Mr. Stevens 

stated that while they were "not that bad" when he returned to the mine 

on October 29th, he was concerned that if the conditions were permitted 

to continue, any resulting additional accumulations would eventually 

pile up against the belt and pose a hazard. He issued the 104(b) closure 

order because he found this action necessary to insure the safety of 

miners in the section. As for the abatement time to correct the conditions 

initially cited in the underlying citation -No. 888864, Mr. Stevens 

maintained that he did not fix the time for abatement as 8:30 a.m., 

October 29th, but that Mr. Hess told him the conditions would be corrected 

on October 29th. The subsequent abatement and clean up after the order 

issued took approximately an hour and 15 minutes. 

Mr. Stevens could not recall when he came out of the mine on October 29, 

since he conducted a noise survey and other inspection chores. He also 

stated that at the time he reduced all of the citations and the order 

to writing, Mr. Hess said nothing to him. Mr. Stevens also confirmed 

that on past inspections of other mines, he has had occasion to serve 

citations by certified mail, but that in these instances the mine operator 

was not on the premises when those inspections were conducted (Tr. 40-45). 

On cross-examination, Inspector Stevens testified that the citations 

in question are the first ones that he has issued orally to the New River 

Company and then back-dated, and he confirmed that he has never mailed 

any citations to the company. He also confirmed that he issued the 

modifications to the citations on November 2, 1981, to reflect that 

they were initially issued verbally and then reduced to writing and that 

he did so on instructions from his supervisors in MSHA's district office. 

With regard to the guarding citation (888861), which he terminated 

on November 3, 1981, he confirmed that it was possible that the condition 

1747 
was correct~d earlier, but November 3 was the next opportunity to confirm 

that abatement had been achieved. As for citation 888862, the guarding 

citation for the No. 7 conveyor tail roller, he confirmed that Mr. Hess 

immediately corrected the condition and that he (Stevens) told Mr. Hess 

that he would accept that correction or repair as abatement of the citation. 

Mr. Stevens also stated that the Union normally conducts the preshift 

examination on the section and he had no reason to believe that the 

examination was not made. 

Mr. Stevens stated that at the time he observed the float coal dust 

condition (citation 888863), he informed Mr. Hess that a citation would 

be issued, but that he did not specifically inform him that he was 

a verbal citation while underground at the location of the infraction. 

He also confirmed that he had no evidence that the required preshift 

examination had not been made. With regard to the permissibility citation 

(888865), Mr. Stevens acknowledged that he did not consider this to be 

a serious violation because the condition could have occurred between 

the weekly required inspections, and he had no evidence that such inspections 

were not made. He also confirmed that Mr. Hess took immediate action 

to correct the cited condition. 

With regard to four of the citations which he issued, namely the 

two guarding citations, the float coal citation, and the permissibility 

citation, Mr. Stevens acknowledged that they were all timely abated in 

good faith by the operator and that the likelihood of any injury or occurrence 

as to all of these citations was remote. 

With regard to the accumulations citation which he issued (888864), 

Mr. Stevens indicated that there may have been some confusion because 

the written citation which he subsequently issued on October 29, does 

give the impression that the accumulations at the roof fall area extended 

for a total of 125 feet. However, he maintained that while underground 

on October 28, he did show Mr. Hess where the accumulations were present 

around the fall area, and going inby toward the face from the fall for 

an approximate distance of 100 feet. He left no written notation of this 

condition with Mr. Hess on the day of the inspection, but did advise 

him that a citation would be issued (Tr. 46-59). 

Mr. Stevens testified that when he returned to the mine on October 29, 

and went underground to the location of the accumulations which he had 

observed the previous day, he found no evidence that any clean-up had taken place. 

He found no evidence of any partial abatement, and maintained that nothing 

had been done to correct the conditions in question. He remained in 

the area while the accumulations were cleaned up to abate the citation, 

and abatement was achieved by the first shift crew and he terminated 

the citation at 10:38 a.m., that same day. 

Mr. Stevens confirmed that he discussed the conditions he observed 

on October 28 with Mr. Hess as well as with mine superintendent Bays. 

He informed them that he did not have a supply of citation forms with 

1748 
him, but that he could return to his office in Mt. Hope, some five miles 

from the mirte, to obtain some. Mr. Bays said "no problem", but he also 

may have said "handle it any way you want", but he was not certain about 

these statements. Mr. Stevens stated that MSHA policy is that an 

inspector does not take the "citation book" of forms underground during 

the inspection and that they are "verbally" issued underground and then 

reduced to writing on the surface from notes made while underground, and 

copies are given to the operator or his representative. Mr. Stevens 

stated that when he discussed the cited conditions with Hr, Hess after 

the inspection on the surface, he was left with the impression that ;viL h.ess 

knew precisely what he had cited and what needed to be done to abat2 =~c.s 

conditions in question, He also stated that he advised H:::-, Hess 

would return to the mine the next day, October 29, and would serve 

written citations to him at that time (Tr, 60-77), 

Testimony and evidence adduced by the contestant-respondent 

Michael Hess, inspector, testified that this was the firs 

time that an inspector had issued verbal citations and then reduced them 

to writing the day after the inspection. He confirmed that he 

Mr, Stevens during his underground inspection of October 

were underground approximately 4 to 6 hours, He and Hr, 

the conditions which were observed underground after came co 

surface at approximately 2:30 or 3:00 p.m., and that Hro Stevens haci 

pointed out to him the areas of the mine which he found objectionableo 

Mr. Bays was present during the discussions on the surface after the 

inspection, and Mr. Stevens advised them that he did not have a 

of citation forms with him. Mr. Hess confirmed that the mine "had five 

citations", but that Mr. Bays advised Mr. Stevens that l!we do not accept 

verbal citations". When Mr, Stevens asked Mr. Bays what he wanted him 

to do, Mr. Bays replied 11 1 am not your supervisor and cannot tell you 

what to do". 

Mr. Hess stated that the MSHA district office is approximately 2-1/2 

miles from the mine site, and that when Mr. Stevens returned the next day, 

October 29, he first went underground, and then came to the surface later 

that day and wrote out all of the citations, and back dated them to show 

they were issued on October 28. Mr. Bays was present when this occurred, 

and he commented to Mr. Stevens "we will beat" or "we will win this one 11 

because the citations were back dated. Mr. Hess stated that the instant 

case is the first time in his seven or years experience in the mines that 

an inspector has issued verbal citations, and then back-dated them. 

With regard to the guarding citation for the No. 2 belt conveyor tail 

roller (888861), Mr. Hess stated that the condition was corrected by the 

evening shift on October 28, and the required repairs were "not that 

involved". Therefore, in his view, the conditions were corrected before 

the written citation was issued on October 29. 

1749 
With regard to the accumulations citation (888864), Mr. Hess testified 

that it was his understanding that on October 28th Mr. Stevens was 

concerned about coal accumulations which were present for a distance of 

approximately 100 feet, starting at the roof fall location, and going 

inby towards the working face. He recalled that he and Mr. Stevens walked 

over the fall and when they reached the inby area, Mr. Stevens verbally 

advised him that this was the area that needed to be cleaned up. Mr. Hess 

stated that after this conversation, he advised the evening shift foreman 

on October 28th that the area inby the fall needed to be cleaned up in 

order to abate the conditions which Mr. Stevens brought to his attention. 

When Mr. Stevens returned the next , October 29, the inby side of the 

fall had been cleaned up for a distance of 75 to 100 feet, but that the outby 

side of the fall had not. When Mr. Stevens observed that the outby area 

of the fall had not been cleaned, he advised Mr. Hess that he was issuing 

a section 104(b) closure order, and that the affected area would include 

the outby and side of the fall, Additional people were brought to 

the area to clean-up at both locations, and after they came to the surface, 

Mr. Stevens wrote the order and abatement at approximately 2~CO p.m. 

on October, and served it on Mr. Hess (Tr. 77-90). 

On cross-examination, Mr. Hess conceded that during the October 28th 

inspection and observations of the conditions which were subsequently 

reduced to writing, Mr. Stevens did advise him that the company would 

be cited for the violations in question. Mr. Hess also conceded that he 

understood exactly what he was being charged with, and that he also 

agreed with the abatement times discussed with Mr. Stevens. However, with 

regard to the accumulations citation, Mr. Hess stated that he did not 

return to that location until he accompanied Mr. Stevens back underground 

on October 29. Seven to ten men were assigned to clean up the area 

outby the fall on October 29, and it took approximately one hour to clean 

up accumulations on top of the fall, as well as on either side of the 

fall. He conceded that he understood why the order was being issued, 

but maintained that the normal practice was to issue a written citation 

after coming out of the mine, and that the issuance of verbal withdrawal 

orders was not the normal practice. He also confirmed that all of the 

citations, except for one belt guarding citation, which had several days 

yet to run for abatement, were terminated by Mr. Stevens on October 29 

(Tr. 90-100). 

Van Bays, mine superintendent, testified that he was aware of the 

fact that Mr. Stevens conducted an inspection at the mine on October 28, 

1981, and acknowledged that Mr. Stevens informed him that the mine would 

be cited for certain violations. He also confirmed that Mr. Stevens 

advised him that he had no citation forms with him and that he would issue 

them verbally. When Mr. Stevens volunteered to go to his office to get 

his form book, Mr. Bays indicated that 11 1 wasn't his boss, that I couldn't 

tell him what to do'' (Tr. 103). 

Mr. Bays stated that he never told Mr. Stevens that he would 

accept the written citations the next day, and he denied acknowledging 

to Mr. Stevens that he would not object to the citations being written 

1750 
the next day and backdated. He also denied that he agreed to any abatement 

periods on Qctober 28, and no one in his presence accepted the verbal 

citations on behalf of the company, nor did anyone agree to any abatement 

periods. 

Mr. Bays stated that he had never previously been served with oral 

citations and this was his first such experience since he has been a mine 

superintendent. After his conversation with Mr. Stevens, Mr. Stevens 

told him that he discussed the cited conditions with Mr. Hess, advised 

him what had to be done, and left the mine. He returned the next day, 

and issued the written citations, to Mr. Hess (Tr. 103-104). 

On cross-examination Mr. Bays acknowledged that on October 28 he 

knew that the mine had been inspected by Mr. Stevens, and he confirmed 

that the mine had been cited by Mr, Stevens· He also confirmed that he has 

never refused acceptance of written citations. He conceded that the 

violations found by Mr. Stevens on October 28 were discussed with Hr. Hess 

and were discussed with him. He also stated that this was normal procedure. 

He also indicated that at times he or the mine foreman routinely agreed to 

abatement times. In this case he was not in the mine with Mr. Stevens 

and did not know whether the mine foreman was there. Since Mr. Hess 

does not direct the mine force he has no jurisdiction to agree to any 

abatement times (Tr. 106). 

Mr. Bays indicated that when Mr. Stevens returned to the mine on 

October 29, and handed the written citations to Mr. Hess he (Bays) 

protested and objected and told him "I'm going to beat you on these" 

(Tr. 107). He told Mr. Stevens that they were improperly issued (Tr. 108). 

In response to bench questions, Mr. Bays stated that he complained 

to Company safety director Pennock. He also indicated that any judgment 

as to when a violation can be abated is usually made by the mine foreman, 

but anything dealing with "instant compliance" is left to Mr, Hess. He 

would expect Mr. Hess to advise him when abatement requires ulengthy 

time or more people" (Tr. 110-111). 

Enunett Pennock, safety director, testified that he first learned 

about the citations on October 29, when general manager Buzz Basham 

advised him that Mr. Stevens had backdated the citations. Upon learning 

this he called MSHA's subdistrict manager on October 30, and discussed 

the matter with Mr. Stevens' supervisors (Tr. 114-116). 

Inspector Stevens was recalled, and he testified that when he returned 

to the mine on October 29, all of the citations, except for the accumulations 

order and one roller guarding citation, had been abated (Tr. 124). 

With regard to the accumulations citation, Mr. Stevens conceded that 

his description of the condition indicating that the accumulations began 

"25 feet outby the fall and extending in.for approximately 100 feet" 

would probably give one the impression that the accumulations extended 

for a distance of 125 feet (Tr. 127). He confirmed that the starting 

point of his measurement was the fall itself where the belt was constructed. 

1751 
He indicate~ that it was possible that for a short distance on either 

side of the fall, there was an accumulation that was not cleaned up when 

he went back to the area on October 29 (Tr. 129). 

Mr. Stevens confirmed that his notes reflect that the accumulations 

which had not been cleaned up extended inby for 75 feet beginning at 

the fall, and outby for 25 feet, for a total distance of 100 feet (Tr. 133). 

He also confirmed that his intent was not to cite the respondent for 

accumulations extending over a distance of 125 feet, and he conceded 

that any interpretation adding an additional 25 feet resulted from a 

misunderstanding or confusion (Tr, 134), However, he insisted that when 

he returned to the area on October 29, he saw no evidence that any clean-up 

had been done (Tr. 134-135), 

The section 104(a) citations issued in these proceedings, and the 

conditions or practices cited by the inspector are as follows: 

Docket No. WEVA 82-93-R 

Citation No. 888861, October 28, 1981, 8:55 a.m,, cites an alleged 

violation of 30 CFR 75.1722(a), and the condition cited it as follows 

(Exhibit G-1): 

The tail roller for the No. 2 belt conveyor was 

not guarded to prevent a person from coming in 

contact with the moving parts. 

The time for abatement is shown as 8:00 a.m., November 2, 1981. 

Docket No. WEVA 82-94-R 

Citation No. 888862, October 28, 1981, 9:45 a.m., cites an alleged 

violation of 30 CFR 75.1722(a), and the condition cited it as follows 

(Exhibit G-2): 

The tail roller for the No. 7 belt conveyor was 

not guarded to prevent a person from coming in 

contact with the moving parts. 

The time for abatement is shown as 10:30 a.m., October 28, 1981, and 

the citation form contains a notation "abated 10-28-81, 10:30 a.m., tail 

roller for the No. 7 belt conveyor has been replaced". 

Docket No. WEVA 82-95-R 

Citation No. 888863, October 28, 1981, 9:47 a.m., cites an alleged 

violation of 30 CFR 75.400, and the condition cited it as follows 

(Exhibit G-3): 

1752 
Float coal dust was present on the surface along 

the No. 7 belt conveyor beginning from the tail 

roller and extending inby for approximately 20 

feet from rib to rib. 

The abatement time is shown as 8:00 a.m., October 29, 1981. 

Docket No. WEVA 82-96-R 

Citation No. 888864, October 28, 1981, 10:15 a.m., cites an alleged 

violation of 30 CFR 75.400, and the condition cited is as follows 

(Exhibit G-4): 

Loose coal and coal dust 3 to 18 inches in depth 

were present along the 3rd left section belt conveyor beginning 25 feet outby the 2nd fall and extending 

inby for approximately 100 feet. 

The abatement time is shown as 8:30 a.m., October 29, 1981. 

Docket No. WEVA 82-97-R 

Citation No. 888865, October 28, 1981, 11:40 a.m., cites an 

alleged violation of 30 CFR 75.503, and the conditions cited are as 

follows (Exhibit G-5): 

The electrical face equipment 32.Lee Norse continuous 

mining machine serial no. 3686 approval no. 2Fl769A-2 

in the 3rd left section (018-0) was not being maintained 

in permissible condition in that an opening in excess of 

.004 inches (.005 inches) was present in the phone flange 

joint of the main contactor panel. 

The abatement time is shown as 11:45 a.m., October 28, 1981, and 

the citation form contains a notation "Repairs were made to the electrical 

face equipment returning it to permissible condition. 10/28/81, 11:45." 

Docket No. WEVA 82-99-R 

Citation No. 888867, October 28, 1981, 11:30 a.m., cites an alleged 

violation of 30 CFR 75.400, and the condition cited is as follows (see 

copy of citation attached to the pleadings): 

Float coal dust was present on the surfaces of the 

No. 7 entry return aircourse of 3rd left section 

beginning at survey station No. 8430 and extending 

outby for approximately 800 feet. This includes 

the connecting crosscuts. 

The abatement time is shown as 8:10 a.m., November 2, 1981. 

1753 
Section 104(a) of the Act states in pertinenet part as follows: 

t 

If, upon inspection or investigation, the Secretary 

or his authorized representative believes that an 

operator of a coal or other mine subject to this Act 

has violated.this Act, or any mandatory health or 

safety standard, rule, order, or regulation promulgated 

pursuant to this Act, he shall, with reasonable promptness, issue a citation to the operator. Each citation 

shall be in writing and shall describe with particularity 

the nature of the violation, including a reference to the 

provision of the Act, standard, rule, regulation, or order 

alleged to have been violated. In addition, the citation 

shall fix a reasonable time for the abatement of the 

violation. The requirement for the issuance of a citation 

with reasonable promptness shall not be a jurisdictional 

prerequisite to the enforcement of any provision of this 

Act (emphasis supplied). 

Although the were afforded an opportunity to file post-hearing 

proposed findings, conclusions, and supporting briefs, they declined to 

do so. However, counsel were afforded an opportunity to arguments 

in support of their respective positions during the course of the hearing 

and their arguments in this regard have been fully considered by me in 

the course of these decisions. It should be noted that New River s counsel 

candidly conceded that the critical issue in these proceedings concerns 

the propriety of an inspector issuing verbal citations which can subsequently 

be converted to withdrawal orders. Counsel argued that the.Act requires 

that all citations be issued in writing with reasonable promptness. In 

these proceedings, he contends that the effect of the inspector's withdrawal 

order was to close the mine down before the underlying citation was 

actually reduced in writing and served on mine management. Counsel argued 

that before a withdrawal order can issue an operator must be given a 

reasonable time to abate the conditions or practices cited by the inspector 

as violations. Here, counsel asserts that the withdrawal order was written 

and issued at the same time the underlying citation was issued (Tr. 145-147). 

New River's counsel argues further that there is no evidence that 

the inspector ever communicated the abatement time for correc the 

alleged accumulations violation to mine management, and that even if he 

did, there is nothing to suggest that mine management agreed or conecded 

that the time given to abate the conditions cited was reasonable or that 

mine management understood precisely what the inspector had alleged 

in terms of any alleged violation (Tr. 148). Conceding that Inspector 

Stevens may have assumed that Mr. Hess accepted 8:30 a.m., October 29th, 

as the time fixed for abatement, counsel argues that it is also reasonable 

to assume from the record that Mr. Hess also assumed that the area 

inby the roof fall location needed to be cleaned, and that the confusion 

on the part of Mr. Hess and Inspector Stevens obviously resulted from 

the fact that nothing was immediately reduced to writing on October 28, when 

Mr. Stevens initially observed the alleged accumulations which he cited 

as a violation (Tr. 149). 

1754 
MSHA' s counsel argued that since the inspe.ctor ultimately issued 

the citatioqs in writing to a representative of the mine operator 

within 24-hours of his observations of the conditions and practices 

which he believed constituted violations of the cited mandatory standards, 

he complied with the statutory mandate that they be issued with reasonable 

promptness. Further, counsel argued that the mine operator in this case 

was not ignorant or oblivious of the conditions which the inspector found 

during his inspection, nor was he ignorant of the fact that the inspector 

would return to the mine the next day and issue the citations in writing. 

Since most the conditions cited as violations by the inspector were 

immediately abated, counsel asserts further that the operator knew 

precisely what the inspector had in mind. In support of this conclusion, 

counsel points to the fact that four out of the five citations were abated 

the same day the inspector observed the conditions (Tr. 11-12). 

During the course of the hearing, New River 1 s counsel conceded 

that he was not concerned over the amount of the civil penalties initially 

assessed against the respondent for the citations, and that the company 7 s 

concern is with the principle of an inspector issuing o citations 

and then later reducing them to writing (Tr. 145). He does not assert 

that the penalties are unreasonable (Tr. 159). Counsel further asserted 

that the respondent is chiefly concerned over the withdrawal order being 

issued orally by the inspector, and he contended that the inspector's 

failure to reduce the underlying citation, as well as the order, immediately 

to writing has led to the confusion as to precisely what was charged as 

a violation and what had to be done to accomplish abatement within a 

reasonable time so as to preclude any unreasonable shutting down of mine 

production (Tr. 150). 

New River's counsel candidly conceded during the course of the 

hearing that insofar as citations 888861, 888862, 888863, and 888865 

are concerned, the respondent does not contest the fact that the conditions 

or practices observed by the inspector as stated on the face of the citations 

in question in fact existed (Tr. 13, 158). Counsel candidly admitted that 

the thrust of the contests, aside from the argument that the citations 

were not reduced to writing with reasonable promptness, focuses on the 

withdrawal order and the underlying citation which preceded it (Tr. 13). 

Findings and Conclusions 

Dockets WEVA 82-93-R, 82-94-R, 82-95-R, 82-97-R, and WEVA 82-173 

With regard to the issue concerning the failure of the inspector 

to reduce citations 888861, 888862, 888863, and 888865 to writing 

immediately after he observed the conditions on October 28, 1981, I 

conclude and find that on the facts of these proceedings the inspector 

did not act illegally or unreasonably. He simply forgot his citation 

forms and verbally advised mine management's representative of his findings, 

specifically advised him that citations were in fact issued but would be 

reduced to writing the next day when he returned to the mine. Under these 

1755 
circumstances, I conclude and find that the inspector acted with 

"reasonable promptness" as required by section 104 (a) of the Act. 

Further, from the record adduced in this case I cannot conclude 

that mine management was prejudiced or otherwise aggrieved by the 

inspector's failure to issue written citations on the afternoon of 

October 28 before he left the mine site. Even though mine superintendent 

Bays indicated that he specifically told the inspector that he would not 

accept oral citations, both he and Mr, Hess candidly acknowledged ·that 

the ir.spector discussed the conditions and cited in the afore-

" __ .::• ... :C':° four citations with Mr. Hess and that Mr, Hess knew precisely 

: ;12 i'a3 with and what had to be done to accomplish 

2.batemen.'.: H1: Hess accompanied the inspector his inspection 

rounds, was with him when the inspector out the infractions, 

and Hr, Bays conceded that he was present in the mine office when the 

tor discussed the conditions cited with Mr. Hess after they came 

to the surrace, 

I conclude and find that MSHA has established the fact of violations 

with respect to citations 888861, 888862, 888863, and 888865 by a 

preponderance of the credible evidence adduced in these proceedings, 

In addition, on the facts presented here with regard to each of those 

citations I further conclude and find that abatement was achieved almost 

:Lnstantaneously with respect to citations 888862 and 888865" 

cannot conclude that the time fixed for abatement was unreasonable 

as to those citations. With regard to citation 888861 the inspector 

testified that the No. 2 belt conveyor tail roller condition was corrected 

when he returned to the section on November 3 and terminated that citation. 

He also indicated that the condition may have been corrected earlier, 

but that November 3 was the next opportunity he had to confirm the abatement. 

In these circumstances, New River has not established that the time fixed 

was unreasonable and I find that it was not. As a matter of fact, Mr. Hess 

conceded that the roller repairs were "not that involved" and that they 

were completed by the evening shift of October 28. 

With regard to the float coal dust citation 888863, Inspector Stevens 

testified that when he returned to the mine on October 29, the area which 

he had cited had been rock-dusted and he terminated the citation that same 

New River has advanced no argument that the time fixed to abate 

these conditions were unreasonable and I conclude and find that it was not. 

In view of the foregoing findings and conclusions, citations 888861, 

888862, 888863, and 888865 are all AFFIRMED, both as to the fact of 

violations and the reasonableness of the times fixed for abatement. In 

addition, New River's contentions that these citations were illegally 

issued because they were not reduced to writing and served on the operator 

on OctobeL 28, before the inspector left the mine site are REJECTED. 

Dockets WEVA 82-96-R and 82-98-R 

The question here is whether the failure by the inspector to reduce 

the underlying citation to writing on the day of the inspection has 

resulted in prejudice to the respondent. Since the citation served 

1756 
I 

as the basis for the subsequent withdrawal order for failure to timely 

abate the conditions cited, the circumstances surrounding the issuance 

of both documents becomes critical. Citation No. 888864 (Exhibit G-4), 

describes the "conditions or practices" as follows: 

Loose coal and coal dust 3 to 18 inches in depth 

were present along the 3rd left section belt conveyor beginning 25 feet outby the 2nd fall and extending inby for approximately 100 feet. 

The subsequent section 104(b) withdrawal order, No. 888866 

(Exhibit G-6), states in pertinent part as follows: 

No effort was made to remove the loose coal and 

coal dust from under and along the 3rd left section 

belt conveyor. 

The conditions observed by the inspector while underground on October 28, 

resulted in the subsequent issuance of a section 104(a) citation charging 

the respondent with a violation of section 75.400 for failure to clean up 

certain accumulations of loose coal and coal dust. The inspector ..::...::..=;;;.c=... 

advised Mr. Hess on October 28 that he had cited the violation, but stated 

that he would reduce it to writing when he returned to the mine the next 

day. Upon his return the next day, the inspector returned to the location 

where he had previously observed the accumulations, and after concluding 

that no work had been done to clean them up he advised Mr. J:Jess that he was 

issuing a section 104(b) closure order. The written citation and withdrawal 

order were subsequently served after the inspector came out of the mine on 

October 29, and after the conditions were abated. In short, the inspector 

reduced the underlying citation, the withdrawal order, and the terminations 

all to writing simultaneously on October 29, but he back-dated it to show 

October 28, as the date of its issuance. 

In support of his citation, the inspector testified that while underground with Mr. Hess on October 28, he pointed out to Mr. Hess the area 

where the accumulations were located. The inspector's testimony is that 

the accumulations were present "around the fall area, and going inby toward 

the face from the fall for an approximate distance of 100 feet". When the 

inspector reduced the citation to writing on October 29, he described the 

location of the accumulations as "beginning 25 feet outby the 2nd fall 

and extend~ng inby for approximately 100 feet". Thus, I conclude that 

it is reasonable to infer that the inspector was concerned about coal 

accumulations extending over an area of approximately 100 feet, and that 

the basis for his belief that a violation of section 75.400 occurred was 

the fact that he saw coal accumulations present over that distance. 

Mr. Hess testified that when the inspector pointed out the accumulations 

to him, it was his understanding that the accumulations were present for 

a distance of 100 feet, starting at the roof fall location and going inby 

1757 
towards the working face. Thus, at this point in time while both men 

were together underground on October 28, it would appear that there was 

a meeting of the minds. That is, both of them apparently conceded the 

presence of coal accumulations for a total distance of approximately 

100 feet, starting somewhere around the fall area and proceeding inby 

toward the working face. Mr. Hess testified that while underground on 

October 28, he and the inspector walked over the fall, and after reaching 

the inby side of the fall location the inspector advised him that this 

was the area that needed to be cleaned up. Mr. Hess testified further 

that he advised the evening shift foreman that same day that the area 

inby the fall needed to be cleaned, and Mr. Hess assumed that this had 

been done by the time the inspector returned the next day. 

The starting point of the location of the accumulations is most 

critical to any determination as to whether the respondent made any 

reasonable efforts to achieve compliance. It is also most critical 

to the question as to whether or not the inspector communicated to the 

respondent what had to be done to achieve abatement. As 

previously noted, a reasonable inference to be drawn from the testimony 

of both Mr. Hess and the inspector is that when they were both underground 

on October 28, they agreed that coal accumulations were at or 

near the location of the roof fall. However, the written description 

of the conditions cited by the inspector on the face of the citation 

when he finally reduced it to writing on October 29, gives the impression 

that the inspector started at a point the fall for some 25 feet and 

then added an additional 100 feet, thereby giving the impression that the 

affected area encompassed a total of 125 feet. As a matter of fact, 

during the hearing the inspector candidly conceded that this was the 

case. He also conceded that his written citation, made after the time 

he initially verbally discussed the matter with Mr. Hess, caused some 

confusion. What transpired after the inspector returned to the mine on 

October 29, supports a conclusion that there was some confusion and a 

discussion of this follows. 

When the inspector returned to the mine on October 29, he went 

underground to re-examine the area where he originally discovered the 

accumulations. He maintains that no work had been done to clean up the 

accumulations. Mr. Hess maintains that the area inby the fall had been 

cleaned up but that the inspector was disturbed because the area 

the fall had not been cleaned, and that this is what prompted him to issue 

the withdrawal order. Significantly, Mr~ Hess indicated that the order was 

terminated after the outby area, as well as the area on top of the fall, 

as well as the area on either side of the fall, was cleaned up. In short, 

Mr. Hess contended that the area which the inspector expected to be cleaned 

up on October 29, was not the same area that he had in mind when he 

verbally discussed it with him the day before. Mr. Hess indicated that 

the area w~ich had been cleaned up encompassed 75 to 100 feet, and he 

obviously believed that abatement was achieved. On the other hand, if 

the inspector had an additional 25 feet in mind, as well as the area 

immediately on top of the fall and to either side, then there obviously 

has not been a meeting of the minds as to precisely what was required to 

achieve abatement. 

1758 
On direct examination, Inspector Stevens first testified that he 

fixed the abatement time for the clean-up of the accumulations as 8:30 a.m., 

October 29. He stated that he believed this time to be reasonable 

because the accumulations were "not that extensive" and that one man 

working one shift could have cleaned them up within the time allowed. 

He later testified that he did not personally fix that time for abatement 

but that Mr. Hess indicated to him on October 28th while they both were 

underground that the accumulations would be taken care of the next day 

(October 29). The inspector's "narrative statement" (Exhibit G-6), 

states that "A 104(a) citation had been issued the day before, and the 

operator said the condition would be corrected but no effort was made 

to correct it", and Mr. Stevens testified that when he asked Mr. Hess 

how long he needed to abate the conditions, Mr, Hess advised him that he 

did not know and that he had to check with mine management first, but that 

Mr. Hess assured him the conditions would be taken care of "in the morning 11 , 

Inspector Stevens testified that when he went back to the mine on 

October 29, to check on the accumulations which he had cited he found 

that they were "not that bad", and that after his withdrawal order issued 

it took approximately an hour and 15 minutes to clean up and abate the 

order. Mr. Hess testified that in order to abate the order seven to ten 

men were assigned to clean up the area outby the fall, and that it took 

an hour to clean up the accumulations on top of the fall, as well as 

to either side of that location, Given these circumstances, I can only 

conclude that the presence of coal accumulations at the fall location 

progressed from a situation which the inspector first considered was 

"not that extensive", to "not that bad", to a major clean-up operation 

requiring a crew of seven to ten men shoveling coal for approximately 

an hour or more both inby and outby the fall, as well as on top of the 

fall and to either side. 

I conclude and find that the preponderance of the evidence establishes 

the existence of coal accumulations amounting to a violation of section 

75.400. I cannot conclude that MSHA has established that the inspector 

fixed a reasonable time for the abatement of the cited conditions, nor 

can I conclude that he communicated this time to mine management. 

I further find and conclude that the failure by the inspector to reduce 

the section 104(a) citation to writing before he left the mine on October 28, 

at the conclusion of his inspection, prejudiced the respondent in that 

it resulted in a withdrawal order based on certain alleged conditions 

which were never fully communicated to mine representative Hess, I accept 

Mr. Hess's testimony that the area inby the fall location had been cleaned 

up and reject the inspector's assertion that the respondent made no effort 

to clean up the cited accumulations. Had the initial accumulation condition 

been reduced to writing by the inspector before he left the mine on 

October 28, even on a blank sheet of paper, he would have had a better 

case to plead. His failure to do so has prejudiced the respondent here 

since it subjected it to a withdrawal order for certain conditions which it 

reasonably believed had been taken care of. 

1759 
Althou&h I have concluded that the failure to reduce the section 104(a) 

citation has prejudiced the respondent's ability to make any rational 

efforts at abatement and compliance, my finding in this regard is limited 

to that issue. Insofar as any violation of section 75.400 is concerned, 

I cannot conclude that the respondent was totally oblivious to the fact 

that a violation had occurred. As a matter of fact, respondent does not 

dispute the existence of accumulations of coal and the record establishes 

that it abated what it believed to be the violative conditions. Accordingly, 

I find that MSHA has established a violation of section 75.400, and to 

that extent the section 104(a) citation no. 888864 IS AFFIRMED. 

In view of my findings and conclusions concerning the issuance of 

the withdrawal order, the section 104(b) withdrawal order, no. 888866 

IS VACATED. 

Size of Business and Effect of Civil Penalties on Respondent's Ability to 

to Continue in Business 

The parties have stipulated that the Siltix Mine employed approximately 

135 miners and had an annual coal production of 175,000 tons at the time 

of the issuance of the citations in question. I conclude that this was a 

medium sized mining operation, and I adopt the further stipulation that 

the penalties assessed for the citations which have been affirmed will 

not adversely affect the respondentvs ability to continue in business as 

my finding on this issue. 

Gravity 

With regard to the two guarding citations (888861 and 888862), 

Inspector Stevens testified that no one was in the area at the time 

he observed the conditions, the area is not one which is heavily traveled, 

and that normal operating procedures call for the belts to be shut down 

when they are cleaned or serviced. In these circumstances, he believed 

that the possibility of any injury occurring was remote, and I conclude 

and find that the citations are non-serious. 

With regard to the float coal dust citation (888863), while the 

inspector did not believe that the mere presence of such dust presented 

a hazard, if it were placed in suspension and ignited by a spark it 

could present a hazard. However, he indicated that nearby cables were 

properly insulated and he detected no stuck rollers. Under these conditions, 

he concluded that the possibility of any accident was remote. Since the 

affected area was not extensive, and taking into accound the inspector's 

testimony, I find that the citation is non-serious. 

Citation 888.865 is a permissibility violation concerning an opening 

in a continuous miner contactor panel in excess of the required .004 inches. 

The opening was .005 inches, but the inspector detected no methane in 

the area, the machine was apparently shut down and an electrician summoned 

immediately to close the gap to the required measurement. Inspector Stevens 

states that any hazard resulting from the condition cited was improbable 

and I find that this citation is non-serious. 

1760 
With regard to the coal accumulations citation (888864), Inspector 

Stevens testified that when he first observed the conditions no one was 

in the area, all of the electrical cables in the area were properly insulated, 

and he observed no stuck conveyor rollers. In addition, the area where the 

roof fall had occurred had been timbered and supported, and he considered 

the possibility of any fire to be remote. Under these circumstances 

and conditions, I find that this citation is non-serious. 

Negligence 

I conclude and find that the respondent should have been aware of 

the two guarding conditions, as well as the presence of float coal dust, 

and coal accumulations. These conditions should have been detected during 

the preshift examination and the respondent's failure to exercise reasonable 

care in this regard constitutes ordinary negligence as to citations 888861 

888862, and 888863, and 888864. 

With regard to the permissibility citation (888865), Inspector Stevens 

testified that the respondent may not have known about the condition 

since it could have occurred during the intervening required weekly 

inspections of the electrical component in question. Under the circumstanes, 

I cannot conclude that the respondent was negligent in this instance. 

Good Faith Compliance 

Respondent exhibited extraordinary good faith compliance by immediately 

correcting the belt roller guarding conditions and the excess gap in the 

miner contactor panel. Abatement of the float coal dust condition was 

achieved the same day the citation issued, and the accumulations were 

cleaned up the next day. I have taken this in consideration in assessing 

civil penalties for the aforementioned citations. 

History of Prior Violations 

The parties stipulated that for the 24-month period preceding the 

issuance of the citations in question in these proceeding the respondent 

had a history of 176 violations, eight of which were violations of section 

75.1722(a), 30 for violations of section 75.400, and 22 for violations of 

section 75.503. 

For an operation of the size and scope of the respondent I do not 

consider the overall history of prior violations to be particularly bad. 

However, it does indicate that respondent needs to give more attention 

to coal accumulations and to the permissibility requirements concerning 

electrical face equipment, and I have taken the history concerning prior 

citations for section 75.400 and 75.503 into account in assessing and 

increasing the civil penalties for the citations which have been affirmed 

in these proceedings. 

1761 
Docket No. WEVA 82-99-R 

As pointed out earlier in these decisions, the parties agreed that 

the citation issued in this case, No. 888867, is no longer in issue since 

the respondent-contestant paid the civil penalty initially assessed by 

MSHA. The parties also agreed that the contest may be dismissed as moot. 

Accordingly, this contest IS DISMISSED. 

Penalty Assessments 

In view of the foregoing findings and conclusions, respondent is 

assessed civil penalties for the violations which have been established 

as follows: 

Citation No. 30 CFR Section Assessment 

888861 10/28/81 75.1722(a) $ 85 

888862 10/28/81 75.1722(a) 80 

888863 10/28/81 75.400 75 

888864 10/28/81 75.400 250 

888865 10/28/81 75.503 50 

$ 540 

ORDER 

Respondent IS ORDERED to pay the civil penalties assesed by me in 

the civil penalty case, in the amounts shown above, within thirty (30) 

days of the date of these decisions, and upon receipt of payment by the 

petitioner, the case is dismissed. 

IT IS FURTHER ORDERED: 

1. By consent of the parties, Contested Docket WEVA 82-99-R, 

IS DISMISSED. 

2. Section 104(b) Order of Withdrawal No. 888866, October 28, 

1981, IS VACATED. 

3. Section 104(a) citation nos. 888861, 888862, 888863, and 

888865 are all AFFIRMED, and Contested Dockets WEVA 82-93-R, 83-94-R, 

83-95-R, and 82-97-R, are all DISMISSED. 

Administrative Law Judge 

Distribution: 

C. Elton Byron, Jr., Esq., Sparacino, Byron & Abrams, Raleigh County Nat'l 

Bank Bldg., Beckley, WV 25801 (Certified Mail) 

Aaron M. Smith, ., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

1762 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

Am1INISTRATION (MSHA), 

Petitioner 

v. 

THOMPSON BROTHERS COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. PENN 81-171 

A/O No. 36-06658-03003 

Thompson Brothers Coal 

Company, Inc. 

DECISION 

SEP2 31982 

Appearances: David T. Bush, Esq., Office of the Solicitor 9 u.S. 

vepartment of Labor, Philadelphia, Pennsylvania, for 

Petitioner; 

Before: 

Allan ~.facLeod, Esq., Pittsburgh, Pennsylvania, for 

Respondent. 

Administrative Law Judge Ilroderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for 2 alleged violations of the 

mandatory standard requiring guards for mechanical equipment. Pursuant 

to notice the case was heard on the merits in Hollidaysburg, 

Pennsylvania, on August 31, 1982. Harry Reichenbach, a Federal coal 

mine inspector, testified on behalf of Petitioner. Leroy Thompson, 

Harold Snarrs, Patrick Dickson, and Terry Rothrock testified on behalf 

of Respondent. Both parties waived the filing of posthearing briefs but 

each made closing arguments on the record. Based on the entire record 

and considering the contentions of the parties, I make the following 

decision. 

REGULATION 

30 C.F.R. § 77.400(a) provides as follows: 

Gears; sprockets; chains; drive, head, tail, and 

takeup pulleys; flywheels; couplings; shafts; sawblades; 

fan inlets; and similar exposed moving machine parts 

which may be contacted by persons, and which may cause 

injury to persons shall be guarded. 

1763 
FINDINGS OF FACT 

1. At all times pertinent to this decision, Respondent was the 

operator of a surface mine in Clearfield County, Pennsylvania, the 

products of which mine entered interstate commerce. 

2. On January 12, 1981, Harry Reichenbach, a duly authorized 

Representative of the Secretary of Labor, issued citations alleging 

violations of 30 C.F.R. § 77.400(a), because of the absence of guards 

on the cooling fan blade and the air compressor belts and p~lleys on 

2 Euclid R-50 end dump trucks. 

3, On January 12, 1981, there were no guards on the fan or on the 

belts and pulleys described in Finding of Fact No. 2. 

4. The fan and belts and pulleys in the vehicle were moving 

machine parts and were similar to those listed in JO C.F.R. § 77.400(a), 

5. The fan and belts and pulleys described above were accessible 

and might be contacted by persons examining or working on the vehicles, 

DISCUSSION 

Respondent attempted to show that it was virtually impossible for 

a person not suicidally inclined to contact the parts in question while 

moving. On this issue, I accept the testimony of the inspector, and 

conclude that a person working around the engine or inspecting it while 

the engine was running, could inadvertently come in contact with one of 

the moving parts. 

6. Should a person come in contact with one of the moving parts 

described above, it might cause an injury to that person. 

DISCUSSION 

Much of Respondent's testimony is to the effect that an injury 

caused in this fashion would not be serious. I conclude that a serious 

injury occurring in the manner described is remote, but an injury, 

however slight, could occur. 

CONCLUSIONS OF LAH 

1. Respondent is subject to the provisions of the Federal ~line 

Safety Act in the operation of its mine. 

2. The undersigned Administrative Law Judge has jurisdiction over 

the parties and subject matter of this proceeding. 

1764 
3. On January 12, 1981, Respondent was in violation of 30 C.F.R. 

§ 77.400(a) because it failed to provide guards for the cooling fans, 

and the air compressor belts and pulleys on 2 Euclid R-50 end dump 

trucks which it operated at the subject mine. 

4. The violation was not serious, because the likelihood of injury 

was minimal. Nevertheless, the risk of injury existed. The violation 

was not of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety hazarJ, 

S. Respondent was aware of the conditions cited. However, it 

was not aware that this condition violated the standard in question, 

Therefore, I conclude that its negligence was slight. 

6. Respondent is a medium sized operator and had no history of 

prior violations for the 24 months preceeding the citations in question. 

7. Respondent abated the conditions cited promptly and in good 

faith. 

3. I conclude that an appropriate penalty for each of the violations cited is $35. 

ORDER 

Based on the above findings of fact and conclusion of law, 

Respondent is ORDERED to pay the sum of $70 within 30 days of the date 

of this order for the two violations of mandatory safety standards 

found herein to have occurred. 

4v.,u_eg ~tvri.41-€,( ~~·James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480 Gateway Building, 3535 Harket Street, Philadelphia, PA 19104 

Allan MacLeod, Esq., 220 Grant Street, Pittsburgh, PA 15219 

1765 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket Nos. Assessment Control Nos. 

v. 

LITTLE BILL COAL COMPANY, INC., 

Respondent 

KENT 81-102 

KENT 81-103 

No. 4 Mine 

KENT 81-104 

KENT 81-105 

No. 5 Mine 

DECISION 

15-11645-03016 

15-11645-03017 

15-11838-03009 

15-11838-03010 

Appearances: George Drumming, Jr., Esq., Office of the Solicitor, U. S. 

Department of Labor, for Petitioner; 

Herman W. Lester, Esq., Combs & Lester, Pikeville, Kentucky, 

for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of rescheduling of hearing dated March 29, 1982, 

a hearing in the above-entitled consolidated proceeding was held on 

April 22 and 23, 1982, in Prestonsburg, Kentucky, under section 105(d), 

30 U.S.C. § 815(d), of the Federal Mine Safety and Health Act of 1977. 

The issues considered at the hearing were whether respondent had violated any mandatory health and safety standards and, if so, what civil penalties should be assessed, based on the six criteria set forth in section 

llO(i) of the Act. At the hearing, respondent used one of the six criteria, 

namely, whether payment of penalties would cause it to discontinue in business, as its primary defense against payment of the civil penalties which 

had been proposed by the Assessment Office. 

The Defense of Inability to Pay Penalties 

Respondent presented two witnesses in support of its claim that being 

required to pay the total penalties of $5,565 proposed by the Assessment 

Office in this consolidated proceeding would require it to file a petition 

in bankruptcy (Tr. 34). The first witness was Mr. John H. McGuire who is 

one of respondent's co-owners. Mr. McGuire testified that respondent was 

operating one mine, the No. 5 Mine, at the time of the hearing held in 

April 1982. Mr. McGuire stated that he had had to close two other mines 

within the 3-month period preceding the hearing and that the reason he had 

had to close the other mines was that he could not find a buyer for the 

1766 
coal he was producing. Mr. McGuire states that he was producing a rock 

seam about 57 inches thick along with a coal seam approximately 58 inches 

thick. The result was that the purchaser of his coal, Utility Coal Company, rejected about 50 percent of the material delivered to it. Although 

Mr. McGuire was paid $18 per ton for clean coal, the rejection of 50 percent of the total amount delivered meant that he was actually receiving $9 

for each ton of material delivered to the purchaser (Tr. 20; 40-41). 

Mr. McGuire is under contract to sell all the coal he produces to 

Utility Coal Company. Although Utility, at the time of the hearing, was 

paying respondent $18 per ton for clean coal, Mr. McGuire has been notified that the price was going to be reduced by $2 to only $16 per ton. 

Mr. McGuire said that he was steadily losing money at the rate of $18 and 

that the further reduction in the price he was receiving for coal would 

almost certainly force him to discontinue in business, Respondent now owes 

about $450,000 in debts, of which an amount of about $300,000 is owed to 

the First National Bank of Pikeville and the remainder to companies for 

supplies and equipment (Tr. 21-22). Mr. McGuire further stated that he 

would sell everything respondent owns to anyone who would be willing to 

assume the debts which respondent currently owes (Tr, 22). 

The No, 5 Mine, which was in operation at the time the hearing was 

held in April 1982, produces about 250 tons of coal per day and has 17 employees, including the two co-owners who work in the mine along with their 

employees. Respondent has to pay its miners about $450 per week and the 

two co-owners pay themselves $500 per week when· there are sufficient funds 

for them to do so; they do not pay themselves at all if funds are not 

available (Tr. 39). The No. 4 Mine, which was closed in January 1982, 

produced only 100 tons per day when it was in operation (Tr. 36). 

In addition to the generalized testimony given by Mr. McGuire, respondent also presented some detailed financial exhibits which were prepared by a certified public accountant named Fred G. Roark and which were 

explained at the hearing by an accountant named Gregory A. Reynolds who 

worked for Mr. Roark's accounting firm at the time the hearing was held 

in April 1982. Mr. Reynolds introduced as Exhibit A a balance sheet and 

statement of income for the 5-month period ending February 28, 1982. 

Mr. Reynolds also supplied a copy of respondent's 1980 Federal income tax 

return which was received in evidence as Exhibit B. The income tax return 

shows that respondent made no profit in 1980 and paid no taxes. 

Exhibit A shows that respondent has assets of $321,971.00 and liabilities of $466,572.53 (Tr. 115). Since respondent's assets are considerably less than its liabilities, the only way respondent's balance sheet 

could be prepared was to use $195,326 in negative stockholders' equity to 

offset the amount by which respondent's liabilities exceeded its assets. 

The ironic aspect of respondent's financial presentation was that Exhibit 

A happens to show that respondent operated at a profit of $48,833.97 for 

1767 
the 5-month period ending February 28, 1982 (Tr. 118-119). Although a 

profit of $48,833.97 was reflected by Exhibit A, that figure did not reflect depreciation for the 5-month period of $16,352.04 which, when properly subtracted from the $48,833.97 in profit, showed a reduced profit of 

$32,481.93 (Tr. 120). 

Even though Exhibit A shows a profit for the period from September 

1981 through February 1982, the exhibit quite clearly shows that the profit 

was used to reduce the ne~ative stockholders' equity shown on the balance 

sheet. If the profit had not been so used, the balance sheet would have 

had to reflect a negative stockholder's equity of $193,434, instead of the 

negative amount of $144,601.53 which the balance sheet does show (Tr, 144). 

Moreover, any profit which respondent might make would have to be applied 

to a reduction of respondent's indebtedness of $466,572.53 (Tr. 145). Perhaps the most impressive statement about respondent's true financial condition was made by Mr. Reynolds when he pointed out that respondent has a debt 

ratio of 145 percent. In other words, respondent not only owes 100 percent 

of its total assets to its creditors, but owes an additional 45 percent in 

assets which it does not even have (Tr. 117). 

Although Exhibit A reflects a profit of $32,481.93 for the 5-month 

period ending February 28, 1982, the exhibit also shows that for the month 

of February respondent operated at a loss of $29,978.99 which is consistent 

with Mr. McGuire's testimony that he cannot presently find a market for his 

coal and that he was losing money at the rate he was being paid for the 

diminished amount of coal which he was producing in April 1982 (Tr. 19; 22-

23; 141) •. According to Mr. Reynolds, there was a very poor market for coal 

throughout the industry in April 1982 and Mr. Reynolds stated that the 5-

month profit was entirely the result of respondent's operations in the 

latter months of 1981 because the price for coal and the market for coal 

had dropped considerably after January 1982 (Tr. 147; 152). 

I find, on the basis of the evidence discussed above, that respondent 

has clearly shown that payment of large penalties would have an adverse 

effect on its ability to continue in business. 

Failure of Respondent To Provide Supplemental Data 

The true significance of respondent's financial data was not fully 

comprehended by me until I had spent a complete day in reviewing the transscript and the exhibits. At the hearing, therefore, it appeared to me that 

respondent should present some additional data showing such things as a 

monthly breakdown of sales and operating expenses as well as a schedule 

indicating the monthly amounts respondent is required to pay on its indebtedness (Tr. 153). Mr. Reynolds and respondent's counsel agreed at the 

hearing that such data would be supplied for the record (Tr. 162). After 

the transcript of the hearing had been received, I wrote a letter on June 7, 

1982, to respondent's counsel requesting that he provide me with the supplemental data at his earliest convenience. When I did not receive any 

1768 
reply to the letter of June 7, I issued a show-cause order on July 23, 

1982, requiring respondent's counsel to submit the supplemental information by August 23, 1982. Respondent's counsel filed on August 23, 1982, 

a reply to the show-cause order. The response stated that Mr. Reynolds, 

the witness who had agreed to prepare the supplemental data, no longer 

works for the accounting firm of Fred G. Roark and that respondent's 

counsel did not know when the supplemental information could be compiled 

or submitted. 

At the time I received the response to the show-cause order, I had 

not performed as thorough a review of respondent's Exhibit A and supporting testimony as I have now made. In view of respondent 7 s failure to submit the supplemental data, it appeared to me that the Secretary's counsel 

might wish to withdraw the settlement agreement which he had submitted at 

the hearing (Tr. 157-161). Therefore, I called the Secretaryvs counsel and 

asked him to state whether his position with respect to settlement had 

changed as a result of respondent 1 s failure to submit the supplemental 

data. The Secretary's counsel stated that he believed he had given sufficient reasons to justify the settlement despite respondent's failure to 

submit the supplemental data and that he did not intend to withdraw the 

settlement agreement or change it in any way, 

I also called respondent's counsel and asked him if he could me 

any information about his failure to furnish the supplemental data which he 

had not included in his response to the show-cause order. I concluded from 

the remarks of respondent's counsel that the wife of one of the co-owners 

is now performing some bookkeeping with respect to respondent's operations 

and that her records are not sufficiently maintained to enable respondent's 

counsel, or the accounting firm of Fred G. Roark, to provide any accurate 

financial information beyond that which was presented at the hearing. 

I have hereinbefore discussed respondent's financial exhibits and 

testimony presented in support of the exhibits and I have found that the 

existing evidence in the record is ample to support a finding that payment 

of large penalties would cause respondent to discontinue in business, if it 

has not already done so. Therefore, I find that it is unnecessary for respondent's counsel to submit any of the supplemental data which Mr. Reynolds 

agreed to provide at the hearing (Tr. 153). 

CONTESTED VIOLATIONS IN DOCKET NO. KENT 81-102 

Testimony was presented by counsel for the Secretary and counsel for 

respondent with respect to four violations prior to the time when the parties 

entered into a settlement agreement. I made findings of fact and assessed 

penalties at the hearing with respect to those four violations. I stated 

at that time that penalties would be assessed on the basis of five of the 

six criteria and that the penalties assessed at the hearing would be further 

reduced if the financial data, to be submitted by respondent on the next day, 

1769 
proved that the penalties should be reduced under the sixth criterion of 

whether payment of penalties would cause respondent to discontinue in 

business (Tr. 47). 

Citation No. 734427 10/31/80 § 75.1704-2(c)(2) (Exhibit 2) 

Findings. Section 75.1704-2(c)(2), among other things, requires the 

person who makes weekly examinations of escapeways to record the results 

of such examinations in an approved book. The inspection was made on 

October 31, 1980, and the last entry regarding the examinations had been 

made on October 9, 1980. Respondent's witness did not controvert the inspector's testimony to the effect that the results of the examinations had 

not been recorded. Therefore, the violation occurred, The inspector 1 s 

testimony shows that the violation was nonserious because the escapeway 

was the intake used by the miners to go in and out of the mine and the 

escapeway was passable. There was a high degree of negligence because the 

mine foreman admitted that he had not the books up to date because he 

had been preoccupied by the breakdown of equipment (Tr. 48). 

Conclusions. As to other criteria, the parties stipulated that respondent operates a small business and that respondent demonstrated a goodfaith effort to achieve compliance. Exhibit 1 in this proceeding was a 

computer printout listing previous violations which have occurred at respondent's mine. That exhibit does not reflect that respondent has previously violated section 75.1704-2(c)(2). A penalty of $15 was assessed at 

the hearing on the basis of the foregoing findings of fact (Tr. 50). 

Since I have hereinbefore found that payment of penalties will have an adverse effect on respondent's ability to continue in business, the penalty 

will be reduced by $5 to $10 for the violation of section 75.1704-2(c)(2). 

Citation No. 734428 10/31/80 § 75.305 (Exhibit 4) 

Findings. Section 75.305 requires, among other things, that the results of weekly examinations for methane and hazardous conditions be recorded in an approved book. The evidence showed that a violation occurred 

because the inspection was made on October 31, 1980, and respondent's witness did not controvert the inspector's testimony that no entry had been 

made in the book since October 6, 1980. The violation was moderately serious because the inspector observed water accumulations in one entry and the 

section foreman, if he had been making the proper inspections, would presumably have had the water pumped from the entry. There was a high degree 

of negligence (Tr. 69). 

Conclusions. In view of the fact that a small operator is involved, 

that a good-faith effort to achieve compliance was made, and that respondent has not previously violated section 75.305, a penalty of $20 was 

assessed at the hearing. The penalty will be reduced by $5 to $15 under 

the criterion that payment of large penalties will cause respondent to 

discontinue in business. 

1770 
Citation No. 734429 10/31/80 § 75.512 (Exhibit 6) 

Findings. Section 75.512 requires that a weekly examination of electrical equipment be made and that the results of the examinations be recorded in an approved book. A violation occurred because the inspection 

was made on October 31, 1980, and no record of the results of weekly electrical examinations had been made since October 9, 1980. The violation 

must be considered nonserious because the inspector did not know whether 

any of the electrical equipment was defective and there is insufficient 

evidence to show that the examinations were not being made. There was a 

high degree of negligence (Tr. 82). 

Conclusions. Since a small operator is involved, a good-faith effort 

was made to achieve compliance, and no history of previous violations of 

section 75.512 had been shown, a penalty of $15 was assessed at the hearing 

(Tr. 83). Because have hereinbefore found that payment of penalties will 

have an adverse effect on respondent's ability to continue in business, the 

penalty will be reduced by $5 to $10. 

Citation No. 734430 11/3/80 § 75.326 (Exhibit 8) 

Findings. Section 75.326 requires, among other things, that belt 

haulage entries be separated from intake and return air courses. A violation occurred because respondent's witness did not controvert the inspector's statement that a hole existed in the stopping between the intake and 

belt entries. The violation was nonserious because the inspector observed 

water in the belt entry and did not believe that a fire would be likely to 

occur so as to allow smoke to enter the intake and be transported to the 

working face. There was ordinary negligence because the hole in the stopping was about 1200 feet from the working face and even the inspector had 

not observed the hole when he had traveled the belt entry a few days prior 

to his traveling the intake entry. There is no history of a previous violation of section 75.326. The violation was abated in good faith (Tr. 101). 

Conclusions. Based on the findings above and the operator's small 

size, I assessed a penalty of $15 at the hearing, but since I have hereinbefore found that payment of penalties will have an adverse effect on respondent's ability to continue in business, the penalty will be reduced by 

$5 to $10. 

SETTLEMENT 

After testimony had been presented by counsel for both parties with 

respect to the four citations considered above, and counsel for respondent 

had presented detailed facts regarding respondent's financial condition, 

the parties presented an oral motion for approval of settlement with respect to the remaining 41 alleged violations involved in this proceeding. 

Inasmuch as I had already heard evidence with respect to four of the citations, it was agreed that the penalties I had assessed would be paid as to 

1771 
those violations and that respondent would additionally pay a total of 

$1,000 for the remaining 41 alleged violations, instead of the penalties 

of $5,287 which had been proposed by the Assessment Office for those 41 

alleged violations. The motion for approval of settlement was made after 

an evaluation of the types of violations which had been alleged in the remaining 39 citations and two orders and counsel for the Secretary stated 

that he did not believe that the negligence and gravity associated with the 

remaining 41 violations were sufficiently great to warrant penalties greater 

than those agreed upon by the parties in their settlement negotiations. The 

Secretary's counsel thought the settlement penalties were additionally justified by the fact that respondent is a small operator whose financial condition is very critical (Tr. 157). 

Docket No. KENT 81-102 

The most serious violations involved in this proceeding were alleged 

in the citations and orders which were the subject of the proposal for 

assessment of civil penalty filed in Docket No. KENT 81-102. The other 

three cases involved in this consolidated proceeding seek assessment of 

·civil penalties for relatively minor violations alleged in citations, whereas the proposal for assessment of civil penalty filed in Docket No, KENT 

81-102 seeks assessment of penalties with respect to violations alleged in 

two orders issued under section 107(a), or the imminent-danger provisions 

of the Act. Specifically Order No. 734435 was issued on November 11, 1980, 

and alleged seven different violations of the mandatory health and safety 

standards, the most serious one being for a violation of section 75.1725 

which alleged that the No. 1 underground conveyor belt contained 37 bottom 

stuck rollers that would not turn when the belt was in operation. Another 

serious alleged violation was that the roof was in bad condition near Spad 

No. 2516. In view of the gravity of the violations alleged in Order No. 

734435, the parties agreed that penalties of $360 should be paid for the 

violations alleged in Order No. 734435. 

A penalty of $100 was also agreed upon by the parties with respect to 

Order No. 734563 which alleged a violation of section 75.517 because of the 

existence of an exposed power cqnductor in the trailing cable for the Wilcox 

continuous mining machine. The parties also agreed upon the payment of a 

penalty of $55 for the violation of section 75.301-4 cited in Citation No. 

734561 which pertained to an alleged.violation for failure to provide the 

required velocity of air for the No. 2 entry at a time when the Wilcox 

mining machine was cutting coal. The primary reason for the relatively 

high penalty agreed upon in this instance is that the inspector had issued 

a withdrawal order under section 104(b) in the belief that respondent had 

failed to make a good-faith effort to abate the violation within the time 

provided for in the inspector's citation. 

The remaining violations alleged in Docket No. KENT 81-102 are of a 

much less serious nature than those discussed above and I find that the 

parties, with respect to the remaining alleged violations, have agreed upon 

1772 
settlement penalties which are consistent with the facts when evaluated in 

light of the six criteria. 

Docket No. KENT 81-103 

Eleven violations are alleged by the proposal for assessment of civil 

penalty filed in Docket No. KENT 81-103. Most of them pertain to electrical matters, such as the failure to use a proper shield at one place on a 

high-voltage cable, failure to maintain a permanent splice so that it would 

exclude moisture, failure to maintain a deenergization device in an operable condition, and failure to maintain a ground check monitor circuit in 

an operable condition. Some nonelectrical violations pertained to failure 

to guard a tail roller properly and failure to maintain a slippage switch 

in an operable condition. The Assessment Office had proposed penalties of 

$1,000 for the 11 violations involved in this docket, whereas the parties 

have agreed to settle for payment of reduced penalties of $160, 

When it is realized that the co-owners of the mine also work in it and 

are generally able to testify rather extensively in support of their invariable opinions that no violation is ever serious for a multitude of 

reasons, it is unlikely that penalties greater than the settlement amounts 

would have been assessed by me if testimony had been received from both 

parties with respect to the 11 violations alleged in this docket. Therefore, I find that the settlement agreement should be accepted, especially 

in light of respondent's evidence showing that payment of large penalties 

would cause it to discontinue in business. 

Docket No. KENT 81-104 

The proposal for assessment of civil penalty filed in Docket No. KENT 

81-104 alleges five violations of the mandatory health and safety standards. 

The Assessment Office proposed penalties totaling $356 for the five alleged 

violations, whereas respondent has agreed to pay penalties totaling $55. 

The violations were all relatively nonserious in that they involved such 

matters as an inoperative methane monitor in a mine in which no methane has 

been detected, an inadequately guarded tail roller, lack of a sufficient 

number of outlets for hoses on the water line, inadequate insulation on the 

cable reel on the roof-bolting machine, and failure of the fire sensor to 

identify the conveyor flights properly. I find that the settlement penalties agreed upon are acceptable in view of respondent's small size and the 

fact that payment of large penalties will have an adverse effect on its 

ability to continue in business. 

Docket No. KENT 81-105 

The proposal for assessment of civil penalty filed in Docket No. KENT 

81-105 alleges nine violations for which the Assessment Office proposed a 

total of $852 in civil penalties, whereas respondent has agreed to pay pen1lties totaling $155. Several of the alleged violations were nonserious in 

1773 
nature, such as failure to record results of examinations of electrical 

equipment in an approved book and lack of on some equipment 

in a mine in which no methane has been detected. In another instance, a 

miner was not wearing his self-rescue device because he had forgotten it 

and left it in his car when he drove to work. Some of the violations, however, were for serious matters such as allowing accumulations of 

coal and float coal dust to exist in some areas of the mine. the 

seriousness of some of the alleged violations, I believe that the reduced 

settlement penalties of $155 are justified in of respondent's evidence 

showing that it cannot continue in business if it has to pay civil 

penalties, 

In addition to asking that the reduced penalties upon by the 

parties be accepted, respondent has requested that it a period of 

60 days within which to pay the penalties result from this proceeding, 

I find that the extended payment period has been justified. 

WHEREFORE, it is ordered: 

(A) Respondent, within 60 days from the date of this decision~ shall 

pay civil penalties totaling $45.00 which are allocated as follows to the 

violations alleged in the four citations listed below: 

Docket No 81-102 

Citation No. 734427 10/31/80 § 75.1704-2(c)(2) . .......... Citation No. 734428 10/31/80 § 75.305 . ................... Citation No. 734429 10/31/80 § 75.512 . ................... Citation No. 734430 11/3/80 § 75.326 . .................... 

Total Penalties Assessed After Evidentiary Presentations ' 

(B) The oral motion for approval of settlement made at the 

granted and the settlement agreement is approved. 

$ 10.00 

15.00 

10.00 

10.00 

$ 45.00 

is 

(C) Pursuant to the parties' settlement agreement, respondent, within 

60 days from the date of this decision, shall pay civil penalties totaling 

$1,000.00 which are allocated to the respective alleged violations as 

follows: 

Docket No KENT 

Citation No. 734431 11/3/80 § 75.1704-2(d) ............... $ 20.00 

Citation No. 734432 11/3/80 § 75.400 . .................... 15.00 

Citation No. 734433 11/3/80 § 75.1100-2 .................. 20.00 

Citation No. 734434 11/3/80 § 75.807 . .................... 10.00 

Order No. 734435 11/4/80 § 75.1725 ....................... 160.00 

Order No. 734435 11/4/80 § 75.400 . ....................... 25.00 

Order No. 734435 11/4/80 § 75.517 . ....................... 15.00 

Order No. 734435 11/4/80 § 75. 1103-4 . .................... 20.00 

1774 
Order No. 734435 11/4/80 § 75.316 •..•..•.•..••.•..••....• 

Order No. 734435 11/4/80 § 75.200 .•....•.•.•.•.....•..... 

Order No. 734435 11/4/80 § 75. 326 ....................... . 

Order No. 734437 11/6/80 § 75.523-2 .......••.•...•.....•• 

Citation No. 734438 11/6/80 § 75.316 ........••..•......•. 

Citation No. 734561 11/7/80 § 75.301-4 ...•.•....•...•...• 

Order No. 734563 11/7/80 § 75.517 ....•...•..•.......••... 

Citation No. 734508 11/13/80 § 75.1100-3 .•....••....•...• 

Total Settlement Penalties in Docket No. KENT 81-102 ,,,, 

Docket No. KENT 81-103 

Citation No. 734509 11/13/80 § 75, 804 (a) OOO<>OOOD00000Q000 

Citation No, 734510 11/13/80 § 75.313 110 o o <>ooocoo 0000 o 0000 

Citation No, 734511 11/13/80 § 75.503 O(j 0000 601) 00000<>0000!1 

Citation No. 734512 11/13/80 § 75.902 OOaOOO•OOOOOOOOOOl>OO 

Citation No. 734564 11/13/80 § 75.1100-2(b) • 0 •••••••••• 0 0 

Citation No. 734565 11/13/80 § 75.1722 0000000000000000000 

Citation No. 734566 11/13/80 § 75.400 0(1 OOOQOO 000 OO<;OOO<l 0 I) 

Citation No, 734567 11/18/80 § 75.603 OGOQO (1001) 00000 O<>O 000 

Citation No. 734568 11/18/80 § 75.1722 00();000<>0<J000¢QQ<>OOG 

Citation No. 734569 11/18/80 § 75. 1102 c=oooooooooo<:10000011 

Citation No. 734570 11/18/80 § 75.604 ••oooooeoooooooooooo 

$ 25.00 

100.00 

15.00 

15.00 

20.00 

55.00 

100.00 

15.00 

$630.00 

$ 15.00 

10.00 

10.00 

15.00 

20.00 

15.00 

20.00 

15.00 

15.00 

15.00 

10.00 

Total Settlement Penalties in Docket No. KENT 81-103 ..... $160.00 

Docket No. KENT 81-104 

Citation No. 734751 12/ 11/80 § 75.313 ............. 0.000000 $ 10.00 

Citation No. 734754 12/12/80 § 75 .1722 0 0 0 0 II t 0 0 O 0 0 O O 0 0 0 O 0 O 15.00 

Citation No. 734755 12/12/80 § 75 .1100-2 . ................ 10.00 

Citation No. 734756 12/12/80 § 75.503 . ................... 10.00 

Citation No. 734757 12/12/80 § 75 .1102-4 . ................ 10.00 

Total Settlement Penalties in Docket No. KENT 81-104 ..... $ 55.00 

Docket No. KENT.81-105 

Citation No. 734744 12/11/80 § 75.512 .................... $ 5.00 

Citation No. 734745 12/11/80 § 75.316 ......... " .......... 25.00 

Citation No. 734746 12/11/80 § 75 .1100-3 . ................ 5.00 

Citation No. 734747 12/11/80 § 75.1714-2 ................. 10.00 

Citation No. 734748 12/11/80 § 75.400 . ................... 25.00 

Citation No. 734749 12/11/80 § 75.403 .................... 20.00 

Citation No. 734750 12/11/80 § 75.503 .................... 15.00 

Citation No. 734752 12/11/80 § 75.400 .................... 25.00 

Citation No. 734753 12/12/80 § 75.400 ..................... 25.00 

Total Settlement Penalties in Docket No. KENT 81-105 ..... $155.00 

1775 
Total Settlement Penalties in This Proceeding ...••••••..• $1,000.00 

(D) Respondent is excused from having to submit the supplemental 

financial data which was requested at the hearing (Tr. 153; 162). 

Distribution: 

~C.r;;i.~1/- Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

George Drumming, Jr., Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Herman W, Lester, Esq., Attorney for Little Bill Coal Company 9 Inc,, 

Combs and Lester, P.S.C., 207 Caroline Avenue, Pikeville, KY 41501-

0551 (Certified Mail) 

1776 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENYER, COLORADO 80204 SEP 2 4 \982 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

C F & I STEEL CORPORATION, ) 

) 

Respondent. ) 

~~~~~~~~~~~~~~~~~~ 

Appearances: 

Katherine Vigil, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner, 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

For the Respondent 

Before: Judge John A. Carlson 

) 

DECISION 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 81-93 

Assessment Control No. 

05-00296-03054 v 

MINE: Allen 

This case, heard under provisions of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act"), arose from an 

inspection of respondent's underground coal mine. On September 11, 1980 

one of the Secretary of Labor's inspectors issued a withdrawal order under 

section 104(d)(2} of the Act alleging that CF&I had failed unwarrantably 

to support the roof in the No. 4 entry 7 panel east section in the mine. 

Specifically, he cited a violation of that part of 30 C.F.R. § 75.200 which 

provides: 

The roof and ribs of all active underground roadways, 

travelways, and working places shall be supported or 

otherwise controlled adequately to protect persons 

from falls of the roof or ribs. 

1777 
The order also alleges that the violation was "significant and 

substantial." On September 15, 1980, the inspector modified his order to 

amplify his description of the roof's condition and to note that an 

unplanned roof fall had occurred on that day in the No. 4 entry. The order 

was terminated on September 18, 1980. 

In this present proceeding the Secretary seeks a civil 

$5,000. CF&I duly contested the proposed assessment, and a 

the merits was held. No jurisdictional issues were raised. 

filed post-hearing briefs. 

REVIEW OF THE EVIDENCE AND DISCUSSION 

I 

penalty of 

full hearing on 

Both parties 

Undisputed portions of the record show that at the time of issuance of 

the 104(d)(2) withdrawal order, prior citations had created a proper 

predicate under the Act. On April 2, 1980~ respondent was issued a 

104(d)(l) citation alleging a violation of the same standard cited here. 

On April 3, 1980, respondent was issued a 104(d)(l) withdrawal order based 

upon coal dust accumulations. There were no intervening "clean" 

inspections before September 11~ the date of the present order. The prior 

citations were not contested and the proposed penalties were paid. 

Inspector Donald Jordan, who issued the order upon which the present 

proposed penalty is based, insisted that miners be withdrawn from the 

No. 4 belt entry because of inadequate roof support. Specifically, the 

inspector testified that he observed cracks and fissures in the roof an.d 

evidence of rolling ribs. He also testified that roof beams were sagging 

and twisted and that he observed cracked and broken timbers. (Tr. 21-24). 

These conditions, he contended, showed that the roof was inadequately 

supported and was "extremely hazardous." The condition of the roof, in 

his opinion, could lead to an unintended roof fall, entrapping as many as 

twelve miners and causing possible fatalities (Tr. 32). 

The inspector believed that his September 12 determinations were 

substantiated by a roof fall which occurred between the time of that 

inspection and his followup visit on September 15. This fall occurred 

primarily in an intersecting cross-cut, hut extended into the No. 4 entry, 

with debris reaching to the belt in the center of the entry, a distance of 

12 to 15 feet. 

Witnesses for CF&I did not seriously dispute the inspector's 

observations of the physical condition of the No. 4 entry (Tr. 107), but 

disagreed with most of his conclusions. 

Witnesses for both parties agreed that the approved roof control plan, 

which called for epoxy-resin roof bolts on four foot centers, was not 

1778 
adequate in entry No. 4. Respondent's witnesses insisted, however, that at 

and before the time of inspection, its miners were carrying out an 

ambitious program of additional shoring, which was sufficient to support 

the roof. 

Jack W. Snow, the mine superintendent, testified that he recognized 

that "we had undue pressures, both roof and floor" (Tr. 74). In a general 

way, he also agreed with the inspector that the 7 Panel East Section 

(entries 4, 5, and 6) had experienced a number of unplanned roof falls 

prior to the inspection (Tr. 36, 114). He insisted, however, that the 

addition of supplemental wooden props, spot beams, and matting had kept the 

roof safe. At one point he put it this way: "At the time I felt that the 

area was sufficiently supported and probably to the best of our ability for 

the conditions that we had 11 (Tr, 77). Snow also showed that 280 props had 

been set in the No. 4 entry between July 17 and September 11, 1980. 

Addition of too much support, he testified, could be counter-productive 

because the floor tended to heave upwards. This phenomenon causes upright 

supports, (timbers in this instance) to push upwards against the roof or 

cross beams! resulting in distortion or breakage and an actual weakening of 

the roof. 

Ike Gonzales, an inspector from CF&I's safety department and Edward 

Griego, assistant foreman for 7 Panel East~ gave testimony which tended to 

support that of Snow. 

Witnesses for the parties also differed over another matter: how much 

of the part of the No. 4 entry that the inspector regarded as' dangerous was 

actually used by miners. By the end of the hearing it was clear that the 

inspector's concern did not extend to the entire length of the entry. He 

acknowledged that the "worst part" was from a heavily timbered section near 

the beginning of the entry at the belt head to a point 200 feet outby the 

face (Tr. 57). According to Jordan this "worst" area had some spot beams 

and timbers, as well as the bolts called for in the basic plan, but it was 

clearly unsafe (Tr. 21, 57-58, 65). The first 100 feet outby the face he 

felt to be in better condition because it had had less time to deteriorate. 

Respondent's witnesses did not deny that the installation of supplemental 

supports had proceeded generally outby to inby, but they nevertheless 

maintained that all areas were adequately supported. 

Inspector Jordan was particularly concerned that during his 

September 11 inspection he saw miners inby the "worst part" of the roof. 

He maintained that they could not have passed through the No. 5 entry 

because it was blocked by a previous fall. (Entries 5 and 6 parallel No. 

4.) He also maintained that the No. 4 entry provided the only means of 

entry and exit because No. 6 entry was also blocked, and that No. 4 was the 

only designated escapeway. Respondent's witness countered these assertions 

through testimony that CF&I had properly designated entry No. 6 as an 

1779 
escapeway despite the presence of a roof fall. Specifically, Gonzales 

testified that by September the fall area in the no. 6 entry had been made 

easily passable by timbering and installation of steps over the debris 

(Tr. 123, 126-127). 

Additionally, foreman Griego testified that his four crewman who were 

inby the cave-in in the no. 5 entry had not travelled there through the 

full length of no. 4. They had walked there, he asserted, through the 

no. 5 entry, detouring the length of only two crosscuts (about 130 feet) 

through no. 4 entry. 

Respondent's witnesses did not suggest, however, that miners, except 

for those installing supports, were forbidden to travel or work in no. 4 

beltway entry while it was in the condition observed by the inspector. It 

was acknowledged, for example, that work would be done on the belt itself 

whenever necessary (Tr. 118-119). Also, Mr. Griego indicated that before 

his crew began work on September 11, the graveyard shift had intended to 

work on a 200 foot extension of the belt, but instead had spent most of 

their time knocking out a stop in a crosscut to improve air flows to the 

face (Tr. 138-139). 

II 

Roof control citations alleging non-compliance with approved plans 

can usually be proved or disproved by evidence of the simplest sort --

measurement of roof widths and support spacings. Where~ as here, however~ 

the parties agree that the general plan is insufficient~ and 29 C.F.R. 

§ 75.200, demanding "adequate" control comes into play, determinations 

become more difficult. Wholly objective criteria are necessarily 

supplanted in some measure by judgmental determinations. 

Respondent's officials believed that the additional supports in the 

no. 4 beltway entry were sufficient; Inspector Jordan believed that they 

were not. Having considered all the evidence, I must agree with the 

inspector. I do so for several reasons. The inspector had a lengthy 

familiarity with the Allen Mine and the particular formation through which 

the no. 4 entry and the entire 7 panel East section had been cut. His 

judgment that major segments of the entry in question remained dangerous 

despite continuing installation of spot supports is lent credence by the 

undisputed history of roof falls in that section, and the post-inspection 

cave-in which partly involved entry 4. In addition, the inspector's 

certainty that spot installation of additional props and beams was not 

keeping up with the rate of roof deterioration was unshakeable throughout 

the trial. Respondent's witnesses, on the other hand, occasionally tended 

to hedge on their certainty of adequate support. Mr. Greigo, for example, 

in explaining why he did not express disagreement when the inspector told 

him the roof was bad, replied: 

Well, it didn't look that bad to 

me, but I always obey what they say, 

1780 
the federal [sic] usually is supposed 

to know a little bit more what they do. 

So we take their word quite a bit. (Tr. 139). 

He and Superintendent Snow both acknowledged that the September 15 fall 

which extended in the no. 4 entry would not have occurred with adequate 

support (Tr. 119, 143). 

Accordingly, I find that substantial portions of the roof in the no. 4 

entry were inadequately supported in violation of the cited standard. In 

making this finding I am not unmindful of respondent's contention that the 

inspector's sole concern with the roof in entry 4 was based upon a mistaken 

belief that the entire length of that entry was a designated escapeway 

(respondents brief at 7). I agree that this was a major concern of the 

inspector, and that the inspector 1 s belief in that regard was not borne out 

by the record. Respondent 1 s evidence that two adequate escapeways existed, 

and that these routes included only a short section of the no. 4 entry 8 

persuasive. This finding, however~ goes only to the gravity of the 

violation. The record clearly discloses that the cited entry was open [:c 

use by miners~ and that work on the belt could have proceeded at any timeo 

I have also considered the contention that placement of additional 

timbers on a heaving floor may further weaken a roof, The argument lacks 

substantial merit in that witnesses for both parties noted that props may 

be "pencilled" or sharpened to minimize this effect. Beyond that, !~ must 

endorse the inspector 1 s view that if addition of timbers proved infeasioLe 5 

respondent was obliged to turn to more elaborate and expensive means of 

protection, such as steel arches. 

III 

We now consider the question of penalty. Section llO(i) of the Act 

requires the Commission, in penalty assessments, to consider .the size, 

negligence, prior history and good faith of the operator, and its ability 

to continue in business. 

The parties stipulated to respondent's large size, (507 employees and 

500,000 tons of annual coal production); and that the imposition of the 

proposed penalty would not impair the mine's ability to remain in business 

(Tr. 4). 

From the evidence I must conclude that the operator was guilty of some 

degree of fault. Its officials were aware of the conditions upon which the 

inspector based his conclusion that the roof was dangerous. Since his 

conclusion was found valid, it follows that respondent should have known of 

the hazard and violation. It was therefore negligent. On balance, I find 

the degree of negligence to be moderate. 

No specific evidence of respondent's prior history of violation was 

adduced beyond the two prior orders or citations upon which the present 

withdrawal order was based. Given the mine's considerable size, its prior 

history cannot be said to warrant heavy penalty consideration. 

1781 
The same may be said of respondent's abatement efforts. Although the 

inspector made clear that little was done on the weekend following his 

Friday inspection, there is no convincing evidence as to whether anyone was 

present in the no. 4 entry over the weekend. Abatement followed with good 

speed after that. 

The ultimate evidence shows that the gravity of the violation was less 

severe than the inspector believed. This is so because, during the times 

material to his order, the number of miners exposed to the inadequately 

supported roof was substantially fewer than he envisioned. Also, he was 

heavily influenced by a belief, which I have determined to be ill-founded, 

that the no. 4 entry was a necessary escape route from 7 panel east 

section. 

Finally, credit must be given to the respondent for its continuing 

efforts to shore up the cited roof before the inspection. Although its 

diligence was not sufficient to meet the threat posed by the deteriorating 

roof, respondent's efforts showed it was scarcely indifferent to the 

hazard. 

On balance 9 I find the penalty proposed by the Secretary to be 

excessive. I conclude that a civil penalty of $1,800 is appropriate. 

IV 

In his opening remarks, the Secretary announced his intent to prove 

that the violation here was "significant and substantial" and was the 

result of an "unwarrantable failure" to comply with the standard (Tr. 4-5). 

Respondent, in its post-hearing brief, argued that the facts failed to show 

unwarrantability. Such special findings are significant because they may 

lead to a sequence or "chainn of withdrawal orders under section 104 of the 

Act. 

Although both parties approached the hearing with the belief that the 

validity of special findings was in issue, I am obliged to consider whether 

I have the power to make such a determination under the statutes. The 

present case, it must be remembered, did not arise from a contest by 

respondent of the validity of the 104(d)(2) withdrawal order itself. 

Respondent had a right to file a timely challenge to the order, but it did 

not exercise that right. J:..! 

1/ Section 105(d) of the Act allows 30 days to contest a withdrawal order 

issued under section 104. 

1782 
The issue, then, is this: May an operator who fails to contest a 

104(d)(2) withdrawal order nevertheless challenge the validity of 

accompanying special findings in a subsequent penalty proceeding arising 

from the same violation? 

The statutory sche.me under which. withdrawal order sequences develop 

is fairly complex. Section 104(d)(l) is the mainspring. It requires the 

inspector to record on any citation his finding that a violation is "of 

such nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard." It 

likewise requires him to record any finding that such violation was "caused 

by an unwarrantable failure" of the operator to comply with a mandatory 

standard. Should the same inspection, or another inspection within the 

next 90 days, disclose another unwarrantable failure to comply with a 

mandatory standard, the inspector must then issue a withdrawal order, 

requiring closure of the affected mine area. The order remains in effect 

until the violation is corrected. 

Section 104(d)(2) comes into play only when a withdrawal order has 

issued under Section 104(d)(l). Where a "similar" violation is cited 

before an interviewing "clean" inspection, the inspecting official must 

issue another withdrawal order. lJ 

Section 104(e)(l) and (2) provide that where an operator has a pattern 

of 11 significant and substantial 0

' violations of mandatory standards 11 he 

shall be given written notice that such pattern exists. 11 Then, should an 

inspector find another significant and substantial violation within 90 days 

from the issuance of the notice, he must issue a withdrawal order for the 

affected mine area. 1/ Under section 104(e)(3), a clean inspection of 

the mine terminates any pattern of violation which has resulted in the 

issuance of a 90 day notice. 

2/ Under the 1969 Coal Act, which used the same language, a "similar" 

violation was held to mean one arising from an unwarrantable failure to 

comply. The concept does not require that it bear substantive similarity 

to the former violation, nor does it require any showing that the violation 

was "significant and substantial." Ziegler Coal Company, 6 IBMA 182 

(1976); Old Ben Coal Company, 1 FMSHRC 1954 (1979). 

3/ Section 104(e)(4) requires that the Secretary of Labor promulgate 

regulations establishing criteria for determining when a pattern of 

violations exists. To date, he has not done so. 

1783 
Where the Secretary charges an operator with an ordinary violation 

under section 104(a) of the 1977 Act, and accompanies that charge with 

special findings, the Commission's position is now clear: The validity of 

the special findings is fully in issue in a subsequent penalty proceeding. 

Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981). This should 

not be surprising, since it has long been accepted doctrine that the 

existence of the underlying violation may be tested in an operator's 

challenge to a later-filed penalty proceeding. !±_/ 

Where special findings are attached to a withdrawal order under 

104(d)(l) or 104(d)(2), however, the results are not so clear. One line of 

cases arising under the 1969 Coal Act holds that the validity of a 

withdrawal order is never in issue in a penalty proceeding based upon the 

occurrence which gave rise to the ordero The present Commission in Wolf 

Creek Collieries Co., March 26, 1979i Docket No. PIKE 78-70-P, in following 

the holdings of its predecessor~ the Interior Board of Mine Operations 

Appeals, put it this way: 

The Board consistently held that the validity of 

a withdrawal order is not an issue in a penalty 

proceeding under section 109 and that it is error 

to vacate an order in such a penalty proceeding. 2/ 

To my knowledge neither the old Board nor the present Commission has 

dealt squarely with the question of how this principle affects possible 

rights to question special findings in a penalty proceeding'. 

Relying on these cases, however, at least one judge has held that 

under the Coal Act where an operator failed to ask for review of withdrawal 

order, any special findings made in connection with that order become final 

with the order. Consequently, their validity could not be considered in a 

penalty proceeding. Clinchfield Coal Company, 2 FMSHRC 290, 292 (1980), 

Judge Moore. 

Although the 1977 Act is indisputably a cognate of the 1969 Act, the 

enforcement provisions of the two differ in several significant 

particulars. Most prominent among these is section 104(e) of the new Act 

which provides for withdrawal orders arising from a "pattern" of significant and substantial violations. This provision had no counterpart under 

the 1969 statutes. Thus, assuming that challenges to special findings 

could not be made under the Coal Act in a penalty proceeding subsequent to 

an unreviewed withdrawal order, it does not necessarily follow that the 

same would hold true under the present Act. 

4/ The Commission has also made it clear that under the 1977 Act an 

operator may, if he wishes, file an innnediate contest of a simple 104(a) 

citation without waiting for issuance of the Secretary's penalty proposal. 

This is so whether or not the citation is accompanied by special findings. 

Energy Fuels Corporation, 1 FMSHRC 299 (1979); Helvetia Coal Company, 

1 FMSHRC 321 (1979). 

5/ Prominent Coal Board cases which defined this doctrine include 

Ziegler Coal Company, 2 IBMA 216, 223-224 (1973), Plateau Mining Company, 

2 IBMA 303 (1973), and North American Coal Corporation, 3 IBMA 93 (1974). 

1784 
For the reasons which follow, I am convinced that under the 1977 Act 

the validity of special findings may be litigated in a penalty proceeding. 

First, one must note that the Commission in Wolf Creek Collieries, supra, 

went out of its way to declare that the case presented no issues under the 

1977 Act. (See note 1 in that decision.) 

My conclusion is chiefly based upon those Commission cases which hold 

that whenever an inspector finds a violation of a mandatory standard, the 

allegation of that violation stands on its own feet 9 even if it results in 

the issuance of a withdrawal order. Hence, if the the withdrawal order is 

somehow defective, the judge is without authority to vacate the 11 underlying" violation and the charges survive as a simple 104(a) matter, In 

Island Creek Coal Company 2 FMSHRC 279 (1980) the principle was set forth 

as follows: 

The Act mandates assessment of a penalty for any violation 

of a mandatory safety standard, such as 30 CFR § 75,400, 

whether that violation is alleged in a citation issued uncle:'.' 

section 104(a), or in a withdrawal order issued under section 

104(d) or other sections of the Act, Whether a withdrawal 

order was properly issued or not (rather than a citation 

alone) does not affect the fact that a violation of a mandatory safety standard was alleged that order That 

allegation, unless itself properly vacated, survives & 

vacation of the order it is contained in, and l~ proven, 

the assessment of a penalty under section 110 is required. 

Thus, whether the October 6, 1978 withdrawal order was 

properly issued under section 104(d)(l) is not relevant to 

the assessment of a penalty under section 110 for an alleged 

violation of a safety standard cited in that order. Therefore, the judge erred in granting the motion to dismiss. 

Van Mulvehill Coal Co., Inc. 2 FMSHRC 283, also decided under the present 

Act, reaches an identical result. A much similar sort of reasoning was 

applied by the present Cormnission and by the Coal Board to the 1969 Act. 

See, respectively, Old Ben Coal Company, 2 FMSHRC 1187 (1980), and Eastern 

Associated Coal Corp., I IBMA 233 (1972). 

Island Creek and similar cases can only be read to say that every 

withdrawal order based upon violation of a mandatory standard contains a 

104(a) citation within it, whether that citation is spelled out or not. As 

to "spelling out," the practice of the Secretary's inspectors has shown 

little consistency. Often they will issue a "combined citation and 

withdrawal order," as described by the Commission in Van Mulvehill, supra. 

At other times, as in the case at bar (and apparently in Island Creek, 

supra), only the withdrawal order is issued, along with a notation of the 

mandatory standard allegedly violated. The printed forms used for all 

these actions are the same, and only the whim of the inspector appears to 

dictate whether he also checks the box marked "citation" when he checks the 

one marked "order." Similarly, no set consideration of either law or 

1785 
policy appears to dictate whether the space on the standard form designated 

"type of action" is completed only to show, for example "104(d)(2) ," as in 

the present case, or to show "104(d)(2) and 104(a)," as in others which I 

have seen. 

In any event, the thrust of the Commission's holdings appears to be 

that any withdrawal order founded upon violation of a mandatory standard 

holds within it a simple 104(a) citation, whether expressed or not. 

If that be so, it follows that an operator who forgoes a challenge to 

the withdrawal order itself, should not be foreclosed from challenging the 

"underlying" 104(a) citation in the subsequent penalty proceeding. Put 

another way, if the simple citation survives the Secretary's vacation of 

the withdrawal order, rationality and consistency dictate that it likewise 

survive as an issue in the subsequent penalty proceeding. Otherw~ses the 

survival principle espoused by the Commission would be a one way street - -

open for Secretary to travel should his withdrawal order be found somehow 

deficient, but closed to the operator who wishes to dispute the question of 

violation in his penalty proceeding, I cannot believe that the Commission 

or Congress intended such an anomalous result, Credence is lent this 

belief by the Commission 1 s holding in Pontiki Coal Co., 1 FMSHRC 1476 

(1979). This case, arising under the Coal Act, involved the propriety of 

the judge's vacation of a withdrawal order in the later penalty proceeding 

arising from the unreviewed order. As in the cases cited earlier in this 

decision the Commission held that the vacation of the order was imprope~ 

in the penalty proceeding, It further held~ however~ that the existence o 

violation was in issue, and affirmed the violation, 

Once we accept the notion that an operator may attempt to disprove 

violation in a penalty contest arising from an unreviewed withdrawal order, 

it follows that he should likewise be able to dispute the validity of 

special findings. I take this view because special findings are clearly 

incidents of the violation, not the withdrawal order. Section 104(d)(l) of 

the Act dictates that the inspector shall record such findings where the 

violation is "significant and substantial" and where it results from an 11 unwarrantable failure" to comply with a standard. Sections 104(d)(2) and 

104(e) also treat these findings as qualities or circumstances of the 

violation. As for Commission holdings, the decision in National Gypsum, 

supra, is consistent with the idea that special findings are an adjunct to 

violation. 

I therefore conclude that the parties properly considered the validity 

of the special findings an issue in this civil penalty case. In so concluding, I do not mean to suggest that the validity of the withdrawal order 

itself could have been tried in a penalty proceeding. That issue was not 

presented here, and for purposes of this decision it is assumed that the 

Commission will adhere to those Coal Board precedents which hold that an 

order is final unless separately challenged by timely contest or 

application for review. I simply hold that the scope of those precedents 

is narrow, giving finality only to the order itself and not the underlying 

allegation of violation, nor the special findings which are auxiliary to 

that allegation. 

1786 
The concept of finality is justifiable and likely necessary because of 

the summary character of a closure order. If the order could be vacated in 

a later penalty proceeding, such action could raise troublesome uncertainties about consequences of a closure -- uncertainties which ought to be 

resolved quickly through a prompt attack on the order itself, by way of a 

petition for review in an imminent danger case, or by a contest of the 

order in one arising under 104(d) or 104(e). Such a vacation, for example, 

could cloud the standing of miners who seek compensation under section 111 

of the Act for lost pay because of a withdrawal. 

One might argue, of course, that the special finding which is overturned in a penalty case may have served as the very foundation of the 

withdrawal order. Consequently, to allow litigation of the special finding 

in a penalty proceeding, while treating the order which rests upon it as 

final and binding, is contradictory. Such results occur frequently under 

regulatory statutes~ however, and need not be a matter of concern. The 

same argument could be raised about the examination of the underlying 

violation in a penalty case following an unreviewed withdrawal order such 

as was involved in Pontiki~ supra. Had the Commission not affirmed the 

judge's finding of violation in that case, presumably the withdrawal order 

would have remained valid even though the violative conduct upon which it 

was based was found not to exist. 

The Occupational Safety and Health Review Commission which 

adjudicates disputes arising under the Occupational Safety and Health Ac 

of 1970 (29 U.S.C. § 651 et seq.), faced similar arguments in cases 

involving "failure to abate 11 citations under that Act. In the typical OSHA 

abatement case a prior citation for violation of a safety standard has 

become final by operation of law when an inspector, on subsequent 

inspection, concludes that the violative condition was not corrected. He 

then issues another citation charging a failure to abate, a separate 

offense under the statutes, The Commission, in such cases, holds that the 

employer, despite the finality of the prior order, may show that no 

violation existed in the first instance. In York Metal Finishing Company, 

OSAHR Docket No. 245, [l BNA OSHC 1655 (1974)], for example, the Commission 

rejected arguments of res judicata and collateral estopple based upon the 

finality of the prior cit~tion, although it did concede that the first 

citation was indeed final and could not be vacated. Those doctrines were 

inapplicable, it held, because there had never been an adjudication on the 

merits. The same may be said under the present mine act. 

In the instant case one could also argue that special findings should 

not be at issue in penalty proceedings because the Secretary should be able 

to regard those findings as fully established links in the chain possibly 

leading to additional withdrawal orders. It is likely true, to cite one 

example, that a finding of "significant and substantial" violation made in 

connection with a withdrawal order could trigger a 90 day notice under 

section 104(e) of the Act well before the penalty case arising from the 

original order reached the hearing stage. This sort of infirmity, however, 

did not concern the Commission in National Gypsum, supra. Under that case 

the special findings accompanying the citation plainly resided in some 

degree of doubt until their validity was decided in the penalty proceeding. 

In the several months which may pass between the issuance of the citation 

and the hearing on penalty, such findings might well be used to trigger a 

l04(d) or 104(e) withdrawal. 

1787 
One more matter requires attention before I rule on the special 

findings in this case. Under the 1969 Act, a withdrawal order under 

104(c)(2) [104(d)(2) under the present Act] need not be predicated upon a 

"significant and substantial" finding. The violation giving rise to the 

closure need only be shown to have been the product of an "unwarrantable 

failure" to comply. Ziegler Coal Co., 6 IBMA 182(1976). This principle 

was expressly upheld by the present Commission in a case arising under the 

1969 law. Old Ben Coal Co., supra 

In this case, however, the question is not whether a finding of 

''significant and substantial" was essential to the issuance of the withdrawal order (it clearly was not); but whether it was proper to list it as 

a possible predicate to future orders. May the Secretary's inspector 9 in 

other words, properly record a violation as 11 significant and substantial1i 

despite the fact that he intends to issue a 104(d)(2) order which only 

requires a finding of "unwarrantable failure"? I hold that he may. 

Section 104(d)(l) commands inspectors in 11 any1u inspection of a mine to make 

special findings a part of the citation whenever the elements necessary for 

such findings are present. If I am correct that every order involving 

violation of a mandatory standard embodies an underlying citation, it 

follows that a "significant and substantial 11 allegation was proper, even 

though not necessary for the issuance of the 104(d)(2) withdrawal order. 

This view is in harmony with the entire scheme of sanctions under the Acto 

Nothing the Act or legislative history suggests that if a violation 

qualifies as both 11 significant and substantialli and vuunwarrantable11 the 

Secretary must, depending upon what link in the chain is involved, ignore 

one or the other. If anything, the legislative history, to the extent it 

speaks to the matter, implies quite the opposite: that a sequence of "unwarrantable failure" violations and one of 11 significant and substantial" 

violations are intended to run parallel to one another. S. Rep. 95-181, 

1st Sess., 33 (1977); reprinted in Legislative History of the Federal Mine 

Safety and Health Act of 1977 at 622 (1978) (Legis. Hist.) The Senate 

Committee put it this way: 

It is the Committee's intention that the Secretary 

or his authorized representative may have both enforcement tools available, and that they can be used 

simultaneously if the situation warrants. For example, 

where an operator has been given a Section 105(c) 

[104(d) in the final enactment] citation and a lOS(d) 

[now 104(e)] notice, and thereafter an inspection 

discloses a violation of a 11 significant and substantial" 

nature and which is also "unwarranted," the operator 

will be issued both an order under Section 105(c) and 

an order under lOS(d). The requirements to break a 

sequence in Sections lOS(c) and lOS(d) differ, and 

are intended to be satisfied individually. 

1788 
v 

The evidence in the case before me shows that the violation was the 

product of an "unwarrantable failure" to comply with the cited standard. 

"Unwarranted failure" occurs where the violative condition is one of which 

the operator had knowledge or should have had knowledge, or which the 

operator failed to correct through indifference or lack of reasonable care. 

Ziegler Coal Company, 7 IBMA 280 (1977). Here it is apparent that the 

operator knew of the conditions of the roof, but believed its abatement 

efforts sufficient. I have found them insufficient, however, and the 

failure to comply was therefore "unwarrantable." The previous 

determination of negligence made with regard to penalty was based upon the 

same findings as those which constitute an "unwarrantable failure. 11 

I further conclude that the violation was "significant and 

substantial." In such a violation 11 · ••• there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature. 11 National Gypsum, supra. The 

unstable and inadequately supported roof described earlier in this decision 

made a coliapse or fall reasonably likely. Had that occurred, serious 

injury for any miners under the fall was almost inevitable. 

CONCLUSIONS OF LAW 

Based upon the entire record in this cases and consistent with the 

findings embodied in the narrative portions of this decision, the following 

conclusions of law are made: 

(1) The Commission has jurisdiction to hear and decide 

this matter. 

(2) Respondent, CF & I Steel Corporation, violated 

30 C.F.R. § 75.200 as alleged in the withdrawal order. 

( 3) The viol at ion was "significant and substantial," and 

was the result of an "unwarrantable failure" to comply 

with the cited standard. 

(4) The appropriate civil penalty for the violation is 

$1,800. 

ORDER 

Accordingly, the allegation of violation is ORDERED affirmed; the 

special findings that such violation was "significant and substantial," 

and the product of an "unwarranted failure" to comply are ORDERED affirmed; 

and respondent is ORDERED to pay a civil penalty of $1,800 within 30 days 

of the date of this decision. 

1789 

~~hn A. Carlson Ad~trative.Law Judge 
Distribution: 

Katherine Vigil, Esq. 

Phyllis Caldwell, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

United Mine Workers of America 

District No. 15 

6415 W. 44th Avenue 

Wheatridge, Colorado 80033 

*U.S. GOVE!illMENT l'Rill'l'ING OFFICE : 1982 0-381-638/4375 

1790