JUNE 1991 

COMMISSION DECISIONS 

06-11-91 

06-25-91 

06-25-91 

Lancashire Coal Company 

Eastern Associated Coal Corporation 

Southern Ohio Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-04-91 

06-04-91 

06-05-91 

06-05-91 

06-06-91 

06-07-91 

06-12-91 

06-12-91 

06-13-91 

06-17-91 

06-21-91 

06-21-91 

06-21-91 

06-24-91 

06-25-91 

06-27-91 

06-27-91 

Sec. Labor on behalf of Amos Hicks v. 

Cobra Mining, Inc., etc .. 

Consolidation Coal Company 

Sunny Ridge Mining Co., Inc. 

Rochester & Pittsburgh Coal Co. 

New Butte Mining Incorporated 

Edwin E. Espey, Jr., emp. by Espey Silica Sand 

Agipcoal USA, Inc. 

Linda Lester v. Garden Creek Pocahontas Co. 

Avis B. Perkins v. Morningside Development Corp. 

Southern Ohio Coal Company 

Homestake Mining Company 

Larry E. Burns v. D.H. Blattner & Sons, Inc. 

Consolidation Coal Company 

Michael P. Damron v. Reynolds Metals Co. 

Melvin Burkhart v. Fossil Fuel, Inc. 

Sec. Labor on behalf of Louis C. Vasquez v. 

Western Fuels-Utah, Inc. 

Cyprus Empire Corporation 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-29-91 Donald Northcutt, Gene Myers & Ted Eberle v. 

Ideal Basic Industries, Inc. 

06-05-91 Don Fraze, Emp. by Liter 1 s Quarry of Indiana 

PENN 89-147-R 

WEVA 89-192 

WEVA 89-278 

VA 89-72-D 

WEVA 91-47 

KENT 91-1 

PENN 90-188 

WEST 90-168-M 

CENT 90-122-M 

KENT 90-207 

VA 91-26-D 

WEVA 91-23-D 

WEVA 90-198 

CENT 90-108-M 

WEST 90-166-DM 

WEVA 91-30 

CENT 89-131-DM 

KENT 90-184-D 

WEST 90-271-D 

Pg. 875 

Pg. 902 

Pg. 912 

Pg. 921 

Pg. 926 

Pg. 928 

Pg. 933 

Pg. 939 

Pg. 945 

Pg. 949 

Pg. 957 

Pg. 958 

Pg. 960 

Pg. 988 

Pg. 995 

Pg. 1010 

Pg. 1013 

Pg. 1016 

Pg. 1022 

WEST 91-454-R Pg. 1040 

CENT 8~-162-DM 1051 

LAKE 91-63-M Pg. 1059 

JUNE 1991 

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

Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. LAKE 91-11. 

(Judge Melick, May 13, 1991) 

Eagle Nest, Inc., v. Secretary of Labor, MSHA, Docket No. WEVA 91-293-R. 

(Judge Weisberger, May 20, 1991) 

Review was denied in the following case during the month of June: 

Kentucky Carbon Corporation, et al. v. Secretary of Labor, MSHA, 

Docket No. KENT 91-265-R, etc. (Judge Broderick, Interlocutory Review 

of May 16, 1991 Order). 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LANCASHIRE COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 11, 1991 

Docket Nos. PENN 

PENN 

PENN 

PENN 

PENN 

PENN 

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

Commissioners 

DECISION 

BY: Holen and Nelson, Commissioners 

89-147-R 

89-148-R 

89-149-R 

89-192-R 

89-193-R 

90-10 

This consolidated contest and civil penalty proceeding arises under the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~· (1988) 

(the "Mine Act" or "Act"), and involves the validity of three citations and 

two withdrawal orders issued to Lancashire Coal Company ("Lancashire") 

concerning conditions at its coal preparation plant at the Lancashire No. 25 

Mine. The question before us is whether the Department of Labor's Mine Safety 

and Health Administration ("MSHA") properly issued citations and withdrawal 

orders to Lancashire under the Mine Act. Commission Administrative Law Judge 

George A. Koutras upheld the Secretary's action in proceeding against 

Lancashire under the Mine Act. 12 FMSHRC 272 (February 1990)(ALJ). 

Lancashire petitioned for review of that part of the judge's decision holding 

that the cited working conditions were subject to Mine Act jurisdiction. 

Lancashire did not petition for review of the judge's rulings with respect to 

the merits of the withdrawal orders and citations. For the reasons that 

follow, the judge's decision is affirmed. 1 

1 The Commission's vote in this case is evenly split. Acting Chairman 

Backley and Commissioner Doyle would reverse the judge's decision and 

Commissioners Holen and Nelson would affirm. For the reasons set forth in 

Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65 (August 1990), pet. for 

review filed, No. 90-3636 (3rd Cir. Sept. 17, 1990), we conclude that the 

effect of the split decision is to allow the judge's decision to stand as if 

affirmed. 

875 
I. 

Factual and Procedural Back&round 

The parties stipulated to most of the key facts in this case. The 

stipulations that are relevant to this review proceeding are as follows: 

1. The subject work site, Lancashire Coal Company 

Preparation Plant ("the work site") is located in 

Elmora, Cambria County, Pennsylvania and is owned 

by the Inland Steel Company ("Inland"), which has 

an office in East Chicago, Indiana. 

2. The work site is adjacent to a sealed mine 

facility which is owned by Inland and which is 

known as the Lancashire Coal Company No. 25 Mine 

("Lancashire Mine 1/25 11 ) • 

3. No coal has been mined at Lancashire Mine #25 since 

June 3, 1983. 

4. Until June 3, 1983, the tancashire Mine #25 was an 

active, producing underground coal mine with surface 

coal preparation facilities located adjacent to it on 

the site ("the Lancashire Coal Company Preparation 

Plant"). 

5. On April 17, 1986, the underground mine shafts were 

sealed by the operator. At that time, the mine 

operator was Inland Steel Coal Company. 

6. Since the mine shafts were sealed, the surface 

facilities have been inactive with the exception 

of a small water treatment facility. 

7. On September 30, 1986, the MSHA classification of the 

mine was changed to a surface facility as a result of 

the underground openings being sealed. 

8. During fiscal years 1987 and 1988, the work site 

was inspected by MSHA as a surface facility. 

Prior to March 20, 1989, the last MSHA safety 

and health inspection was April 1, 1988. 

9. On September 6, 1988, the Hastings Field Office of 

MSHA declared the work site permanently abandoned 

(Joint Exhibit 1). 

10. As a result of the action it took on September 6, 

1988, MSHA ceased inspection activity at the work 

876 
site. 

11. After September 6, 1988, Lancashire took no action to 

indicate that it intended to resume the extraction, 

production, milling or processing of coal. 

12. In late 1988, Lancashire sought bids from contractors 

to perform work dismantling and removing facilities 

and structural materials from the work site and 

reclaiming the area. 

13. K&L Equipment Co., Inc. ("K&L"), owned by Kenneth 

Morchesky, was selected as the contractor and 

commenced work the week of February 20, 1989. 

14. On March 20, 1989, a fatal accident occurred at the 

work site. One of K&L's employees was killed during 

operations to raze a silo at the site. 

15. On March 21, 1989, MSHA Inspector William D. 

Sparvieri, Jr. arrived.at the work site to conduct an 

inspection. As part of his activities at the work 

site on March 21, 1989, Mr. Sparvieri issued the 

following citations and orders: 

a. Section 103(k) Order No. 2888399, 3:00 p.m. 

b. Section 107(a) Order No. 2888400, 3:15 p.m. 

c. Section 104(a) Citation No. 2891501, 3:30 p.m. 

16. On April 17, 1989, Inspector Sparvieri returned to the 

work site and served Citation Nos. 2891508 (1:55 p.m.) 

and 2891509 (2:00 p.m.). 

12 FMSHRC at 274-75 (Stipulation numbers changed). 

Lancashire's No. 25 Mine and associated coal preparation facilities 

stopped producing or preparing coal on or about June 3, 1983. Subsequently, 

when Lancashire was unable to sell the mine, it sealed the mine's openings. 

Lancashire decided to demolish its old concrete coal storage silo and old coal 

p~eparation plant (screen house) in late 1988. Under Pennsylvania law, a mine 

operator is required to reclaim abandoned mine lands, including the lands upon 

which former preparation facilities are located. The Pennsylvania Department 

of Environmental Resources ("Pennsylvania DER") requires that surface 

facilities be removed as part of the reclamation process. The coal 

preparation facilities in question were built in the late 1950's and were not 

used after 1971, because new coal preparation and storage facilities were 

built in an adjacent area. 

MSHA continued to inspect the surface facilities until September 1988, 

at which time MSHA classified the mine as "permanently abandoned." The only 

continuing activity at the mine site was the operation by Lancashire of a 

water treatment facility required by the Pennsylvania DER. Only one 

877 
Lancashire employee worked at the mine site, supervisor Francis Falger. 

Lancashire engaged an independent contractor, K&L Equipment Company, 

Inc. ("K&L"), to demolish the old coal storage silo and old screen house. On 

March 20, 1989, during the demolition of the old coal storage silo, an 

employee of the independent contractor was killed when a portion of the silo 

prematurely collapsed, crushing him under concrete, coal and other material. 

Local fire and rescue authorities transported the victim to a local hospital. 

MSHA started its investigation the following day. The record does not 

reveal how MSHA learned of the accident. Francis Falger admitted the MSHA 

inspectors onto the property but told them that MSHA was without jurisdiction 

because the mine had been classified by MSHA as "permanently abandoned." 

Kenneth Morchesky of K&L also told the inspectors that MSHA was without 

jurisdiction. The MSHA supervisory inspector, John Kuzar, replied that he was 

not sure if MSHA had jurisdiction but that MSHA was going to investigate the 

accident. Falger and Morchesky fully cooperated with MSHA Supervisory 

Inspector Kuzar and MSHA Inspector William Sparvieri, Jr., who was assigned to 

investigate the accident. 

After spending about an hour at the accident site, the inspectors 

returned to the local MSHA~office so that Inspector Kuzar could call the MSHA 

sub-district manager to discuss the jurisdiction issue raised by Lancashire 

and K&L. Although the jurisdiction question was not resolved at that time, 

the inspectors were authorized to return to the Lancashire site to secure the 

area. Inspector Sparvieri issued an order of withdrawal under 

section 103(k) 2 of the Mine Act, in order to secure the area, and an order 

of withdrawal under section 107(a) 3 , because he believed that the structures 

2 Section 103(k) of the Mine Act states: 

In the event of any accident occurring in a coal or other 

mine, an authorized representative of the Secretary, when present, 

may issue such orders as he deems appropriate to insure the safety 

or any person in the coal or other mine, and the operator of such 

mine shall obtain the approval of such representative, in 

consultation with appropriate State representatives, when 

feasible, of any plan to recover any person in such mine or to 

recover the coal or other mine or return affected areas of such 

mine to normal. 

30 u.s.c. § 813(k). 

3 Section 107(a) of the Mine Act states in part: 

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

mine which is subject to this [Act], an authorized representative 

of the Secretary finds that an imminent danger exists, such 

representative shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an order requiring 

878 
to be demolished were in an unstable condition and presented an imminent 

danger to anyone in the area. Additionally, he issued Lancashire a citation 

pursuant to section 104(a) of the Act. Inspector Sparvieri also issued the 

independent contractor citations and orders, which were not contested before 

the Commission. 

On March 23, 1989, MSHA District Manager Donald Huntley wrote a 

memorandum to Jerry Spicer, MSHA Administrator for Coal Mine Safety & Health, 

concerning MSHA's jurisdiction at this facility. The memorandum stated that 

the MSHA district office "determined that both the mine operator and 

contractor fell under MSHA's jurisdiction and all applicable provisions of the 

Act and Title 30 Code of Federal Regulations applied." 

On April 17, 1989, Inspector Sparvieri returned to the mine site to 

issue two additional citations under section 104(a) of the Act. Apparently, 

the MSHA sub-district office had received notification from MSHA's Arlington, 

Virginia, headquarters that MSHA has jurisdiction over the Lancashire site. 

In a memorandum to Jerry Spicer dated May 2, 1989, Edward Clair, Associate 

Solicitor of the Department of Labor, concluded that MSHA had jurisdiction 

and that "MSHA should plan to conduct appropriate inspection activities of 

K&L' s activities at the Lancashire .. si.te." 

In his decision, Judge Koutras concluded that "the mine site where the 

reclamation or demolition work in question was taking place in this case is a 

'mine' within the definitional language found in sections 3(h)(l) and 3(h)(2) 

of the Act, and that at the time of the inspections in question MSHA had 

enforcement jurisdiction and authority over that mine facility." 

12 FMSHRC 295. The judge based his decision on an analysis of the text of the 

Mine Act, the legislative history, and Commission precedent. 

Relying on the language of section 3(h) of the Mine Act 4 and the 

the operator of such mine to cause all persons, except those 

referred to in section 814(c) of this title, to be withdrawn from, 

and to be prohibited from entering, such area until an authorized 

representative of the Secretary determines that such imminent 

danger and the conditions or practices which caused such imminent 

danger no longer exist .... 

30 U.S.C. § 817(a). 

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

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

which minerals are extracted in nonliquid form or, if in liquid 

form, are extracted with workers underground, (B) private ways 

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

underground passageways, shafts, slopes, tunnels and workings, 

structures, facilities, equipment, machines, tools, or other 

property including impoundments, retention dams, and tailings 

879 
legislative history, the judge concluded that the structures being demolished 

were the result of the prior active mining of coal, including extraction and 

processing, and therefore fit within the statutory definition of "coal or 

other mine." 12 FMSHRC at 292. He concluded that since coal from the 

previously active. underground mine was processed through these structures, one 

could reasonably assume that a "nexus" existed between the coal that was 

extracted from the underground mine and the coal that was prepared through 

these structures. 12 FMSHRC at 293. He held that the fact that these 

structures had not been used since 1971 was immaterial since the definition of 

"coal or other mine" is not related to any time factor and since the 

definition has consistently been given the broadest possible interpretation by 

the courts as well as the Commission. Id. The judge relied upon the 

Commission's decisions in Alexander Brothers, 4 FMSHRC 541 (April 1982), and 

Westwood Energy Properties, 11 FMSHRC 2408 (December 1989), in reaching his 

conclusion. The judge also rejected Lancashire's contention that MSHA's 

decision to stop inspecting the mine site removed it from the statutory 

definition of "coal or other mine." 12 FMSHRC at 291. 

II. 

Disposition of Issues 

We conclude that the Secretary had jurisdiction to inspect Lancashire's 

preparation plant under the Mine Act because this facility fits within the 

Mine Act's definition of "coal or other mine." 30 U.S.C. § 802 (h)(l). 

Our resolution of Mine Act jurisdiction in this case is governed by the 

statute and our interpretation is further clarified by its legislative history 

and by the Commission's decisions. Congress directed the Commission to "give 

ponds, on the surface or underground, used in, or to be used in, 

or resulting from, the work of extracting such minerals from 

their natural deposits in nonliquid form, or if in liquid form, 

with workers underground, or used in, or to be used in, the 

milling of such minerals, or the work of preparing coal or other 

minerals, and includes custom coal preparation facilities .... 

(2) For purposes of subchapters [titles] II, III, and IV of 

this chapter [Act], "coal mine" means an area of land and all 

structures, facilities, machinery, tools, equipment, shafts, slopes, 

tunnels, excavations, and other property, real or personal, placed 

upon, under, or above the surface of such land by any person, used in, 

or to be used in, or resulting from, the work of extracting in such 

area bituminous coal, lignite, or anthracite from its natural deposits 

in the earth by any means or method, and the work of preparing the 

coal so extracted, and includes custom coal preparation facilities. 

30 u.s.c. § 802(h). 

880 
weight" to the Secretary's interpretation of the Mine Act. 5 For the reasons 

set out below, we believe that the Secretary's reading here of the definition 

of "coal or other mine" is correct, even if her reading were not entitled to 

be given weight. We first set forth the basis for this conclusion and then 

address other isaues raised by Lancashire and the dissenting opinion. 

A. Definition of "coal or other mine." 

Lancashire argues that the only definition of a coal mine applicable in 

this case is contained in section 3(h)(l) of the Mine Act. 

30 U.S.C. § 802 (h)(l). Lancashire contends that the only relevant portion of 

this definition is contained in part (C), which provides, in pertinent part: 

"coal or other mine" means ... (C) lands ... 

structures, facilities, equipment, machines, tools, or 

other property ... used in, or to be used in ... the 

work of preparing coal. 

30 U.S.C. § 802(h)(l) (emphasis added). Lancashire maintains that the 

definition includes lands and facilities resulting from the work of extracting 

minerals from their natural deposits but d.oes not include lands and facilities 

resulting from the work of preparing coal. 6 Thus, it argues that because 

the structures that were demolished and the land on which they were located 

resulted from the work of preparing coal, rather than the work of extracting 

minerals from their natural deposits, the work site was not a "coal or other 

mine" and MSHA was without jurisdiction. It maintains that the definition of 

"coal or other mine" evidences a Congressional intent to treat facilities 

resulting from the extraction of coal differently from facilities resulting 

from the preparation of coal. 

Lancashire contends that Judge Koutras improperly supplemented the 

definition of "coal or other mine" with the definition of "coal mine" 

5 The legislative history of the Mine Act provides that "the 

Secretary!s interpretation of the law and regulations shall be given weight 

by both the Commission and the courts." S. Rep. No. 181, 95th Gong., 1st 

Sess. 49 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Gong., 2nd Sess., Legislative History of the Federal 

Mine Safety and Health Act of 1977, at 637 (1978) ("Legis. Hist."). 

6 Section 3(i) of the Mine Act provides: 

"work of preparing the coal" means the breaking, crushing, 

sizing, cleaning, washing, drying, mixing, storing, and loading of 

bituminous coal, lignite, or anthracite, and such other work of 

preparing such coal as is usually done by the operator of the coal 

mine; 

30 U.S.G. § 802(i). 

881 
contained in section 3(h)(2), which by its own terms is only applicable to 

titles II, III and IV of the Mine Act. It argues that by incorrectly relying 

on an inapplicable definition of coal mine, Judge Koutras made the "key 

limitations" in Section 3(h)(l) "disappear." Lancashire Br. 16. 

Lancashire also contends that by confusing the two definitions, the 

judge improperly found a "nexus" between the extraction and preparation of 

coal and treated the two activities as though they were one and the same. It 

states that since the definition in section 3(h)(l) uses the disjunctive "or" 

to separate the two activities, the definition affords the two activities 

differing treatment. 

The Secretary explains that the two definitions of coal mine in section 

3(h) confer Mine Act jurisdiction over property, structures and facilities 

used in, to be used in, or resulting from the work of extracting or preparing 

coal. She states that this broad definition is consistent with Congress' 

intent that the term "mine" be construed expansively as demonstrated by the 

legislative history of the Act. 

The Secretary argues that Lancashire's construction of the definitions 

in section 3(h) is inconsistent with other provisions of the Mine Act, is 

contrary to Congressional-intent, and is formalistic and at odds with the 

obvious purpose of the Mine Act. She asserts that the definitions in section 

3(h) must be read together. She maintains that the qualifying language of the 

definition of "coal mine" contained in section 3(h)(2) evidences Congress' 

recognition that titles II, III and IV of the Mine Act are applicable to coal 

mines only and not to metal or other mines. She states that Congress did not 

intend to create two conflicting definitions of coal mine in the same statute. 

The Mine Act contains two definitions applicable to coal mines in 

section3(h). The definition of "coal mine" contained in section 3(h)(2) is 

identical to the definition that was in section 3(h) of the Coal Mine Health 

and Safety Act of 1969 ("Coal Act") except for the addition of the qualifying 

phrase "For purposes of titles II, III, and IV." The Mine Act amended the 

Goal Act. The definition of "coal or other mine" contained in section 

3(h)(l) of the Mine Act is taken from the definition of the term "mine" 

contained in section 2(b) of the Federal Metal and Nonmetallic Mine Act 

("Metal Act"), 30 U.S.C. § 721 (1976) (repealed). The Metal Act was repealed 

by .the Mine Act. 

The Metal Act definition was modified in section 3(h)( 

as follows: 

of the Mine Act 

(A) an area of land from which minerals are extracted 

in non-liquid form or, if in liquid form, are 

extracted with workers underground, (B) private ways 

and roads appurtenant to such area, and (C) land.&, 

excavations, underground passageways, shafts, slopes, 

tunnels and workings, structures, facilities, 

equipment, machines, tools, or other property 

including impoundments, retention dams, and tailings 

ponds, on the surface or underground, used in, or to 

882 
be used in or resulting from, the work of extracting 

such minerals from their natural deposits in nonliquid 

form, or if in liquid form, with workers underground, 

or used in, or to be used in, the milling of such 

minerals, or the work of preparing coal or other 

minerals, and includes custom coal preparation 

facilities. 

The underscored phrases in the above definition were not contained in the 

Metal Act definition and were added by Congress when it passed the Mine Act. 

The phrase "or to be used in, or resulting from" was added before the words 

"work of extracting such minerals," while the phrase "or to be used in" was 

added before the words "the work of preparing coal." It is this disparity 

that is the crux of Lancashire's argument. Lancashire contends that since the 

structures to be demolished in this case "resulted from" the work of preparing 

coal, and were not "used in" or "to be used in" such work at the time of the 

inspection, these structures do not fit within the Act's definition. 

Section 4 of the Mine Act provides that each "coal or other mine"·that 

affects commerce is subject to the Act. 30 U.S.C. § 803. Thus, if the 

preparation plant at the Lancashire~ .. No. 25 Mine is a "coal or other mine" that 

ends the question because the Secretary has Mine Act jurisdiction over any 

"coal or other mine." 

The fact that the Mine Act contains two somewhat different definitions 

of covered mining operations and that these definitions are somewhat complex 

create enough ambiguity to warrant consideration of the legislative history in 

interpreting these provisions. Burlington Northern R. Co. v. Okla Tax Comm'n, 

481 U.S. 454, 461 (1987)("Legislative history can be a legitimate guide to a 

statutory purpose obscured by ambiguity"). The legislative history, 

particularly the Senate and House Committee reports, indicate that Congress 

intended that the definition of the term "coal or other mine" be given a broad 

interpretation and that any doubts be resolved in favor of inclusion of the 

facility within the coverage of the Act. More specifically, both Committee 

reports indicate that Congress intended to treat facilities resulting from the 

preparation-of coal the same as facilities resulting from the extraction of 

minerals. The legislative history provides no support for Lancashire's 

position that Congress deliberately excluded from the definition of "coal or 

other mine" surface structures resulting from the preparation of coal. 

When the Senate version of the bill that became the Mine Act was 

reported by the Committee on Human Resources, the Committee Report described 

the definition contained in section 3(h)(l) as follows: 

[T]he definition of "mine" is clarified to 

include the areas, both underground and on the 

surface, from which minerals are extracted (except 

minerals extracted in liquid form underground), and 

also, all private roads and areas appurtenant thereto. 

Also included in the definition of "mine" are lands, 

excavations, shafts, slopes, and other property, 

including impoundments, retention dams, and tailings 

883 
ponds. These latter were not specifically enumerated 

in the definition of mine under the Coal Act .... 

Finally, the structures on the surface or underground, 

which are used or are to be used in or resulting from 

the preparation of the extracted minerals are included 

in the definition of "mine." The Committee notes that 

there may be a need to resolve jurisdictional 

conflicts, but it is the Committee's intention that 

what is considered to be a mine and to be re!?Jllated 

under this Act be given the broadest possibl[e] 

interpretation, and it is the intent of this Committee 

that doubts be resolved in favor of inclusion of a 

facility within the coverage of the Act. 

S. Rep. No. 181, 95th Cong. 1st Sess 14, (1977), reprinted in Legis. Hist. at 

602 (emphasis added). It is not clear why the Committee did not include the 

language "or resulting from" when referring to the work of preparing coal as 

it did in the Committee Report. This definition remained unchanged when it 

passed the Senate. Legis. Hist. at 1109. 

When the House version of the ... bill. was reported by the House Committee 

on Education and Labor, the second definition of "coal mine" was added in what 

is now section 3(h)(2), while the definition in subsection (h)(l) was similar 

to the definition in the Senate bill. Legis. Hist. at 343-44. The House 

Committee Report provided the following explanation: 

Section 102(b)(2) amends the definition of 

"Mine" to read "coal or other mine" and to include (1) 

an area of land from which minerals are extracted in 

non-liquid form, or if in liquid form are extracted 

with workers underground; (2) private ways and roads 

appurtenant to such area; and (3) lands, passageways, 

facilities, etc., to be used in or resulting from the 

work of extracting minerals, including custom coal 

preparation facilities and milling operations .... 

H. Rep. No. 312, 95th Cong. 1st Sess. 28 (1977), reprinted in Legis. Hist, at 

384 (emphasis added). The Committee Report does not state why the Committee 

did. not include the language "or resulting from" in the definition in section 

3(h) (1) in reference to the work of preparing coal. The definitions of "mine" 

in this bill remained unchanged when the bill passed the House. Legis. Hist. 

at 1261-62. 

The two bills were referred to a conference committee. This committee 

adopted the House bill for purposes of section 3(h). The following 

explanation is provided in the Conference report: 

Both the Senate bill and the House amendment 

modified the Coal Act to make it the single mine 

safety and health law, applicable to all mining 

activity. The Senate bill did this by deleting the 

word "coal" where applicable in title I. The House 

884 
amendment did this by inserting the words "or other" 

after the word "coal" where applicable. Thus, the 

Senate bill referred to "mines," the House amendment 

to "coal or other mines." 

The conference substitute conforms to the House 

amendment. The conferees note that the foundation for 

the new Mine Safety and Health Act is the Federal Coal 

Mine Health and Safety Act of 1969. In adopting the 

provisions of that Act, titles II, III, and IV are 

retained as exclusively applicable to the coal mining 

industry. For this reason, it was the decision of the 

conferees that the use of the term "coal or other 

mine" in titles I and V, which are applicable to all 

mining activity, would more clearly delineate the 

distinction between those titles of the act applicable 

to all mining and those applicable to coal mining 

only. 

S. Conf. Rep. No. 461, 95th Cong. 1st Sess. 37 (1977), reprinted in Legis. 

Hist. at 1315. 

As discussed above, the Mine Act's definitions in section 3(h) are 

patterned after the definitions in the Metal Act and Coal Act. It appears to 

us that the definition of "coal mine" in subsection 3(h)(2) was included, in 

major part, to make clear that titles II, III and V, which contain coal mine 

safety and health standards and black lung provisions, are not applicable to 

metal or nonmetal mines. The term "coal mine" is used in those titles but not 

in titles I and V. When Congress was considering the bills that became the 

Mine Act, a critical concern was whether the Secretary would attempt to apply 

coal mine safety and health standards to noncoal mines, such as sand and 

gravel pits. Much of the debate centered on this concern. See, ~. Legis. 

Hist. at 999-1024, 1056-63, 1161-78, 1231-35. The restriction in the 

definition of "coal mine" was intended to allay these fears. See Conference 

Committee Report, supra. As a consequence the term "coal mine" rather than 

the term "c.oal or other mine" is used in titles II, III and IV. It does not 

appear, nor can we credit the contention, that Congress intended to provide an 

inconsistent definition for coal mines applicable to titles I and V. "A 

statute is passed as a whole and not in parts or sections and is animated by 

on,e general purpose and intent." 2A Sutherland Statutory Construction, § 

46.05, at 90 (Sands 4th ed. 1984 rev.) Consequently, the two definitions 

should be construed in a way that harmonizes them. Id. 

Lancashire admits that the definition of "coal mine" in section 3(h)(2) 

of the Mine Act "covers structures resulting from the preparation of coal." 

Lancashire Br. 16. With the exception of the introductory phrase, this 

definition is the same definition that was in the Goal Act. Thus, 

Lancashire's work site would have been subject to the jurisdiction of the Goal 

Act. It is clear that Congress did not intend to reduce the scope of the 

government's authority when it passed the Mine Act. Congress stated that 

section 3(h) of the Mine Act "contains amendments to the definitions in the 

Coal Act, which reflect ... the broader jurisdiction of the[e] [Mine] Act. 11 

885 
S. Rep. No. 181, supra, at 14, reprinted in Legis. Hist. at 602 (emphasis 

added); Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1554 (D.C. Cir. 1984). 7 

The dissenting opinion concludes that persons engaged in demolition at a 

mine site such as Lancashire's are not miners. But, the term "miner" is 

defined broadly in the Act, as "any individual working in a coal or other 

mine." 30 U.S.C. § 802(g). The term "operator" is defined in the Act to 

include those performing services or construction at mines. 30 U.S.C. 

§ 802(d). Thus, a construction worker, elevator mechanic, laboratory 

technician or clerk-typist working at a mine is a "miner" under the Act. 

~' Otis Elevator Co. v. Secretary of Labor, 921F.2d1285 (D.C. Cir. 1990); 

Martha Perando v. Mettiki Coal Corp., 10 FMSHRC 491 (April 1988). Further, 

the Secretary has defined the term "miner" for purposes of hazard training 

regulations for surface faci·lities as "any person working in a surface mine or 

surface areas of an underground mine ... includ[ing] any delivery, office, or 

scientific worker, or occasional, short-term maintenance or service worker 

contracted by the operator, and any student engaged in academic projects 

involving his or her extended presence at the mine." 30 C.F.R. 48.22(a)(2). 

Based on the language of the Mine Act and the legislative history, we 

conclude that the facilities at issu~ at the Lancashire No. 25 Mine fit 

within the definition of "coal or other mine" as set forth in section 3(h)(l) 

of the Mine Act. We reject Lancashire's attempt "to give the Mine Act a 

technical interpretation at odds with its obvious purpose." Nacco Mining Co., 

9 FMSHRC 1541, 1546 (September 1987). 

B. Nature of the operation 

Lancashire maintains that even if its work site fits within the 

definition of "coal or other mine," MSHA was without jurisdiction to inspect 

it because the nature of the operation was not similar to work usually 

performed by a mine operator. It contends that the demolition and removal of 

the structures in question from the abandoned mine site were not closely 

associated with active coal mining. Lancashire argues that the Commission's 

decision in Oliver M. Elam. Jr., 4 FMSHRC 5 (January 1982), recognizes that an 

activity do~s not fall within the coverage of the Mine Act unless the nature 

of the operation in question is similar to work normally performed by a mine 

operator. 

In the question presented was whether a commercial dock facility 

that arguably performed several of the functions included in the Mine Act's 

definition of "work of preparing the coal" was subject to MSHA jurisdiction. 

7 Consistent with the thrust of this legislative history, the 

federal courts have uniformly recognized the extensive reach of the term "coal 

or other mine." ~.Marshall v. Stoudt's Ferry Preparation Go., 602 F.2d 

589, 592 (3rd Cir. 1979) ("the statute makes clear that the concept that was to 

be conveyed by the word [ "minei•] is much more encompassing than the usual 

meaning attributed to it"); Cyprus Industrial Minerals Co. v. FMSHRC, 664 F. 2d 

1116, 1118 (9th Cir. 1981). 

886 
Having examined the activities carried out at Elam's dock, the Commission 

concluded that "all of Elam's activities with respect to coal relate solely to 

loading it for shipment." 4 FMSHRC at 6. The Commission held that "inherent 

in the determination whether an operation properly is classified as 'mining' 

is an inquiry not only into whether the operation performs one or more of the 

listed work activities [in the definition of 'work of preparing the coal'], 

but also the nature of the operation performing such activities." 4 

FMSHRC at 7 (emphasis in original). 8 

Elam is distinguishable from the present case. If the Lancashire 

facilities being demolished were still in use, they would be the kind of 

facilities at which activities within the definition of "work of preparing the 

coal" would be performed and, as a consequence, would be within the definition 

of "coal or other mine." Lancashire admits that the facilities in this case 

"undeniably were designed for and used in the 'work of preparing the coal,' as 

that term is defined in the Mine Act." Lancashire Br. 11. Thus, the work 

performed at the facilities at issue at the time the mine was operating was 

the "work of preparing ... coal as is usually done by the operator of the coal 

mine." See section 3(i) of the Act. The physical setting in this case is 

easily recognizable as a mine, while Elam's commercial dock on the Ohio River 

is not. 

Elam applies when an operation is performing some functions normally 

associated with coal preparation, such as sizing and crushing, at a location 

separate (and different) from a traditional mine site. See, ~. 

Coal Sales. Inc., 7 FMSHRC 615, 619-20 (May 1985). The issue there is whether 

such activities are sufficient to be deemed the "work of preparing the coal" 

so that the operation should be considered to be a mine. In contrast, the 

issue in the p~esent case is whether demolition activities in aid of 

reclamation at a former preparation plant located on a mine site are within 

the statute's coverage. Whether the demolition activities constitute the 

"work of preparing the coal" is not an issue here. 

Lancashire also refers to the judge's finding that the demolition of the 

structures at issue was not closely related to activities normally associated 

with active .. coal mining. The judge made this finding, however, in reaching 

his conclusion that Lancashire was not required by 30 C.F.R. § 77.1712 to 

notify MSHA that it was reopening the mine. The judge determined that in order 

8 In the present case, the judge considered the Commission's decision 

in Alexander Brothers in reaching the conclusion that Lancashire's work site 

was subject to MSHA jurisdiction. 12 FMSHRC at 293. In Alexander Brothers, 

the Commission applied and concluded that the removal and screening of 

coal and foreign debris from a refuse pile at an abandoned mine site 

constituted the work of preparing the coal. 4 FMSHRC at 545. The judge noted 

that although the work being performed by the operator in Alexander Brothers 

differed from the work performed by "the ordinary preparation plant," the 

Commission determined that it was subject to the jurisdiction of the Coal Act. 

12 FMSHRC at 293. Thus, in applying Alexander Brothers to the facts of this 

case, the judge analyzed the nature of Lancashire's operation and determined 

that it was subject to MSHA jurisdiction. 

887 
to establish a violation of section 77.1712, there must be "some indicia of 

active coal mining operations, or at least some evidence that a mine operator 

intended to resume the active mining [or preparation] of coal." 12 FMSHRC at 

303. As a consequence, he vacated the citation. The judge's finding in this 

regard does not sμpport Lancashire's argument that MSHA was without 

jurisdiction. 

Other activities at a mine site that do not occur at the same time as 

the extraction or preparation of coal are subject to MSHA jurisdiction. For 

example, the construction of buildings or other structures at a mine site is 

subject to MSHA inspection, even if the extraction of minerals has not yet 

begun. 30 U.S.C. § 802(d); See also,~' Bituminous Coal Operators' 

Association v. Secretary, 547 F.2d 240 (4th Cir. 1977). Nothing in the Mine 

Act, the legislative history- or Elam suggests that MSHA is without 

jurisdiction to inspect a particular activity at a "coal or other mine" simply 

because such activity is not contemporaneous with the active extraction or 

preparation of coal or other minerals. 

Moreover, even applying Elam's "nature of the operation" test, 

Lancashire's position is undercut by its acknowledgment that "operators have a 

duty to tear down above ground structures as part of the state-mandated 

reclamation of a permanently abandoned facility." Lancashire Br. 25, n.17. 

As a consequence, Lancashire effectively concedes that the normal mining 

process may include the demolition of surface facilities at a coal mine after 

such mine. is closed. To borrow a phrase from section 3(i) of the Act, the 

demolition of surface facilities at a coal mine constitutes work "usually done 

by the operator of the coal mine" once the ore body is depleted or mining is 

halted for other reasons. While demolition is not always associated with 

active mining, it is related to the overall process of mining coal. 

C. Additional Issues 

Lancashire contends that a memorandum written by Associate Solicitor 

Edward Clair, referred to as the 11Huntsville Gob memorandum" supports its 

position that its reclamation activities were not subject to MSHA 

jurisdiction. In that memorandum, Mr. Clair determined that reclamation work 

occurring at another site was not subject to Mine Act jurisdiction. He listed 

a number of factors that should be evaluated when MSHA determines whether it 

has_ jurisdiction over work occurring on previously mined lands. 

The Huntsville Gob memorandum does not purport to be a statement of MSHA 

policy nor does the Secretary state that it is. The contents of the 

memorandum were not promulgated either as interpretative rules or enforcement 

guidelines. Rather, the memorandum is an internal document that supports 

MSHA's decision not to assert jurisdiction over a particular facility at a 

particular time. Indeed, Mr. Clair had determined that MSHA did have 

jurisdiction over Lancashire's preparation plant in another memorandum, 

referred to above, two weeks earlier. The Commission has previously 

determined that resolution of the question of jurisdiction "is governed by the 

statute, rather than by which of two conflicting interpretations by the 

Solicitor is correct." Alexander Brothers, 4 FMSHRC at 543. In any event, 

the Commission has previously concluded that inconsistent enforcement policies 

888 
of the Secretary are not necessarily dispositive of whether a violation 

occurred but bear on the degree of negligence of an operator and in assessing 

a civil penalty. King Knob, 3 FMSHRC 1417, 1422 (June 1981). 

Lancashire.and the dissenting Commissioners contend that Lancashire's 

activities were covered by the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (1988)("0SHAct"). The OSHAct applies to a workplace 

unless another federal agency "exercise[s] statutory authority to prescribe or 

enforce standards or regulations affecting occupational safety or health." 29 

U.S.C. §§ 653(b)(l). When another federal agency has actually exercised its 

statutory authority to regulate a workplace, the OSHAct does not apply. lL...\L., 

Southern Ry. Co. v. Occupational Safety and Health Review Comm., 539 F.2d 335, 

336 (4th Cir. 1976). The Mine Act empowers an MSHA inspector to issue a 

citation or order of withdrawal to any "operator" that violates the Mine Act 

or a MSHA regulation. (The term "operator" is defined in section 3(d) of the 

Mine Act as "any owner, lessee, or other person who operates, controls, or 

supervises a coal or other mine or any independent contractor performing 

services or construction at such mine." 30 U.S.C. § 802(d).) Thus, "with 

regard to health and safety in the workplace, the Secretary regulates an 

employer falling within the Mine Act definition of an under that Act, 

while she regulates an employer not- -so classified under the OSHAct." Otis 

Elevator Co. v. Secretary of Labor, 921F.2d1285, 1287 (D.C. Cir. 1990). In 

this case, the Secretary exercised her inspection authority under the Mine 

Act. The Secretary has never attempted to regulate the safety and health 

conditions at Lancashire under the OSHAct. 9 

The dissenting Commissioners emphasize that Circuit Court holdings in 

Southern Ry. Co. and in Columbia Gas of Pennsylvania v. Marshall, 636 F.2d 913 

(3rd Cir. 1980) would require the issuance of explicit demolition regulations 

to establish MSHA jurisdiction in this case. But under their rationale, 

consequences would ensue that are at variance with Congressional intent. 

OSHA, for example, would be given jurisdiction over demolition at a mine site 

even when coal was being extracted at the same time, because MSHA would not be 

able to show that it had promulgated specific demolition regulations. 

Thes~ cases, moreover, may be distinguished. In Southern Ry. Co., as in 

other cases with similar holdings, the court required a showing of specificity 

, 9 In Pennsylvania Electric Co., 11 FMSHRC 1875 (October 1989), and 

Westwood Energy Properties, a majority of the Commission determined that 

MSHA had jurisdiction over certain facilities but were unable to determine 

whether the Secretary had, in fact, chosen to exercise her authority to 

them under the Mine Act instead of the OSHAct. In each case, both 

the Occupational Safety and Health Administration ("OSHA") and MSHA had 

asserted jurisdiction over the operation in question. These cases were 

remanded to the judge to determine whether the Secretary had properly 

invoked Mine Act jurisdiction. As OSHA has never attempted to assert 

jurisdiction over any facility associated with the Lancashire operation, 

holdings in Pennsylvania Electric and Westwood are not applicable to this 

case. 

889 
in an agency's regulations in order to establish grounds for preemption or 

exemption from OSHA's residual regulatory authority. At issue in this case is 

the Secretary's direct assertion of statutory authority for MSHA. This is not 

a case where OSHA has asserted authority and where that authority is being 

challenged. This is not a case where OSHA's residual regulatory authority 

derives from a lack of exercise of regulatory authority by another agency. 

Southern Ry. Co. and other cases with similar holdings may be further 

distinguished in that the jurisdictional question at issue in those cases lies 

between separate departments or agencies, rather than within a single cabinetlevel department, under a single Secretary, as in this case. A jurisdictional 

question may be resolved with greater ease when it falls within the authority 

of one Secretary. The Secretary of Labor, in regulating Lancashire's 

demolition activities under·the Mine Act rather than the OSHAct, is "not 

determining the outer limits of [her] own authority, but [is] merely 

'adjusting the administrative burdens between [her] various agencies.'" Otis 

921 F.2d at 1288 n. 1 (quoting Carolina Stalite, 734 F.2d at 1553). 

Lancashire is "unquestionably subject to regulation by the Secretary under one 

Act or the other." 921 F.2d 1288 n. 1. 

Lancashire's final argument is that .. MSHA' s jurisdiction over its coal 

preparation plant ceased when MSHA stopped inspecting it in September 1988. 

It contends that MSHA stopped inspecting the facility because MSHA determined 

that the facility was no longer a mine subject to its jurisdiction. 

Lancashire maintains that it did not reestablish itself as a mine subject to 

MSHA jurisdiction when it demolished the structures because it took no action, 

after MSHA declared the mine to be "permanently abandoned," to resume the 

extraction or preparation of coal. 

Lancashire argues that MSHA has taken the position that such reclamation 

activities at abandoned mines are not subject to the jurisdiction of the Mine 

Act. Lancashire points to the testimony of MSHA Inspector Leroy Niehenke and 

retired Inspector Thomas Simmers in addition to the Huntsville Gob memo. The 

two inspectors stated that have never known MSHA to attempt to exercise 

jurisdiction over demolition work being performed as of reclamation at a 

"permanent1,y abandoned" In addition, Morchesky (the independent 

contractor) testified that he performed similar work at another abandoned mine 

site in the area (Barnes & Tucker No. 20) with the knowledge of MSHA and that 

MSff:A never attempted to assert jurisdiction over this work. 

The Secretary responds that it is irrelevant whether the mine was 

reopened to extract or prepare coal, or to demolish surface mine facilities. 

She maintains that MSHA's "permanently abandoned" classification is for 

administrative convenience to conserve inspection resources and that such 

classification does not divest MSHA of jurisdiction if new work is commenced 

at the site. We note that the inspection occurred less than seven months 

after MSHA classified the mine as "permanently abandoned." 

Neither party disputes that MSHA would have jurisdiction at a mine 

previously classified as "permanently abandoned" if the operator took actions 

to recommence the extraction or preparation of coal. What is contested is 

whether MSHA has jurisdiction at a site previously mined when old surface coal 

890 
preparation facilities are demolished. Lancashire asserts with no 

authoritative basis that MSHA's jurisdiction at a "permanently abandoned" mine 

can begin again only if steps are taken to resume the extraction or 

preparation of coal. 

'We believe that the Mine Act's definition of "coal or other mine" 

subjects Lancashire's preparation plant to Mine Act jurisdiction. The 

Secretary cannot be prevented from asserting Mine Act jurisdiction at the 

Lancashire operation simply because she may not have exercised such 

jurisdiction at other locations. In resolving questions of jurisdiction, the 

Commission must be guided by Congressional intent. Consistent policy and 

enforcement, nevertheless, would advance the goals of the Mine Act, improving 

workplace safety and health, while at the same time reducing unnecessary 

burdens of compliance. Uncertain regulatory enforcement creates confusion and 

instability for operators and workers, leading to higher costs of production 

and reduced safety. 

Finally, it is noteworthy that the essential thrust of Lancashire's 

argument is to urge that no governmental oversight was appropriate for the 

demolition activity involved in this case. MSHA had exercised jurisdiction 

over this site while it wa~ a working operation. OSHA never had visited the 

site and, so far as the record discloses, was unaware of the operation and the 

demolition. Lancashire does not seek review of the judge's rulings upholding 

validity of the citations and orders, but seeks review of the judge's decision 

that the cited working conditions were subject to Mine Act jurisdiction. The 

judge's decision is reasonable and adequately supported; the argument against 

that ruling does not comport with the fundamental concern of the operator for 

safety first, as required by the Congress in Section 2 of the Mine Act. 

III. 

Conclusion 

For the foregoing reasons, we wo~ th~~cision. 

Arlene Holen, Commissioner 

L. 

~/~ Clair Nelson, Commissioner 

891 
Acting Chairman Backley and Commissioner Doyle, dissenting: 

Lancashire Coal Company ("Lancashire") ceased operations at its No. 25 

Mine in 1983. The shafts were sealed in 1986, and, in 1988, MSHA classified 

the work site as permanently abandoned. Subsequently, as part of its 

reclamation effort, Lancashire contracted with K&L Equipment Co., Inc. 

("K&L") to demolish the old coal silo and screen house on the property. On 

March 20, 1989, during the demolition, one of K&L's employees was killed. 

The following day, an inspector from the Mine Safety and Health 

Administration ("MSHA") inspected the site (under protest from Lancashire 

and K&L), and issued several citations to K&L. He also issued to Lancashire 

two control orders and a citation, pursuant to 30 C.F.R. § 77.200, 1 

alleging that Lancashire had failed to maintain the coal silo and screen 

house in good repair. The inspector then consulted with his Subdistrict 

Manager, and subsequently the District Manager sought clarification from the 

MSHA Administrator "as to MSHA's jurisdiction and the operator's 

responsibility to comply with the Act and Title 30 [C.F.R.] and the 

jurisdiction over contractor activities at the mine site." Exh. R-36 at 1. 

The Associate Solicitor, }n a memorandum dated May 2, 1989, advised that 

K&L's activities were "mining activities within the meaning of the 1977 

Act." Exh. R-37 at 3. In the meantime, the inspector had returned to the 

mine and issued two additional citations, one pursuant to 30 C.F.R. § 

45.4(b), 2 alleging that Lancashire had failed to keep required records 

with respect to K&L in its office (name, address, telephone number, nature 

1 Section 77.200 provides as follows: 

Surface installations; general. 

All mine structures, enclosures, or other 

facilities (including custom coal preparation) shall 

be maintained in good repair to prevent accidents and 

injuries to employees. 

30 C.F.R. § 77.200. 

2 Section 45.4(b) provides as follows: 

§ 45.4 Independent contractor register. 

(b) Each production-operator shall maintain 

in writing at the mine the information required by 

paragraph (a) of this section for each independent 

contractor at the mine. The production-operator 

shall make this information available to any 

authorized representative of the Secretary upon 

request. 

30 C.F.R. § 45.4(b). 

892 
of work to be done, etc.) and the second pursuant to 30 C.F.R. § 77.1712, 3 

alleging that Lancashire had failed to notify MSHA "prior to reopening." 

Lancashire challenged the citations and orders on the grounds that 

MSHA did not have jurisdiction over the mine site. The administrative law 

judge concluded, based on his reading of the legislative history and on the 

Commission's decision in Westwood Energy Properties, 11 FMSHRC 2408 

(December 1989), 4 that Lancashire's property was a "mine" as defined in 

the Mine Act and that, therefore, MSHA had jurisdiction at the time of the 

inspections. 12 FMSHRC at 291, 295, 303. He upheld the violation of 30 

C.F.R. § 77.200, finding that Lancashire had failed to maintain the mine in 

good repair, as required by that regulation. He also sustained the 

recordkeeping violation charged under 30 C.F.R. 45.4(b). The judge vacated 

the citation with respect·to section 77.1712, based on his conclusion that, 

in order to establish a violation of that section, "there must be some 

indicia of active coal mining operations, or at least some evidence that a 

mine operator intended to resume the active mining of coal. 11 12 FMSHRC at 

303. The Secretary of Labor ("Secretary") did not petition for review of 

that determination. 

Our two colleagues would affirm the judge's decision that Lancashire's 

demolition project is subject to Mine Act jurisdiction. In doing so, they 

state that they rely on the language of the statute, as "further clarified 

by its legislative history and by the Commission's decisions" (slip op. at 

6) but they refuse to apply the Commissions's earlier framework for 

determining Mine Act coverage as set forth in Oliver M. Elam. Jr., Co., 4 

FMSHRC 5 (January 1982). Slip op at 12-14. They refuse to consider the socalled Huntsville Gob Memorandum, which is part of the record, because it 

3 Section 77.1712 provides as follows: 

Reopening mines; notification; inspection prior to mining. 

Prior to reopening any surface coal mine after 

it has been abandoned or declared inactive by 

the operator, the operator shall notify the 

Coal Mine Health and Safety District Manager 

for the district in which the mine is located, 

and an inspection of the entire mine shall be 

completed by an authorized representative of 

the Secretary before any mining operations in 

such mine are instituted. 

30 C.F.R. § 1712. 

4 Following the Commission's decision in Westwood, the Secretary filed 

a Motion to Approve Settlement with the Commission, whereby MSHA agreed not 

to "assert jurisdiction over Westwood in the future, as long as Westwood 

does not materially change the manner in which it [operates]." Sec.'s 

Motion to Dismiss in Westwood at 2. 

893 
" does not purport to be a statement of MSHA policy .... " Slip op. at 14. 5 

They further find that Lancashire's operations are exempt from coverage 

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

.§.!19... (1988)("0SHAct") pursuant to section 4(b)(l) thereof. 29 U.S.C. 

§ 653(b)(l). Slip op. at 15-16. We disagree that Lancashire's demolition 

project is subject to regulation under the Mine Act rather than under the 

OSHAct. 

In reviewing the Mine Act and its legislative history in an attempt to 

glean precisely what Congress intended to regulate, our colleagues focus 

exclusively on the definition of "coal or other mine" set forth in section 

3(h)(l) and the definition of "coal mine" set forth in section 3(h)(2) and 

the legislative history of those sections. That legislative history, which 

has been widely quoted in advocating Mine Act coverage, indicates that the 

definition of a mine is to be "given the broadest possibl(e] interpretation" 

and that "doubts [should] be resolved in favor of inclusion .... '' S. Rep. 

No. 181, 95th Cong., 1st Sess. 14 (1977) reprinted in Legis. Hist. at 602. 

While that language is expansive, it is not without bounds and one must also 

consider that the Mine Act was intended to establish a "single mine safety 

and health law, applicable to all mining activity." (emphasis supplied) S. 

Rep. No. 461, 95th Cong., 1st Sesi;: ... 37 (1977) reprinted in Legis. Hist. at 

1315. 6 More importantly, section 2(g) of the Mine Act makes clear that 

"it is the purpose of [the Mine Act] ... to protect the health and safety of 

the Nation's coal or other miners." 30 U.S.C. § 80l(g)(emphasis supplied.) 

Nowhere in the Mine Act or in its legislative history is there any 

indication that Congress intended the Mine Act, no matter how broadly it is 

to be interpreted, to govern the building demolition industry or its 

employees, any more than there is indication that Congress intended the Mine 

Act to govern other industries engaged in reclamation or in post-reclamation 

use of abandoned mines, as our colleague's decision would dictate. 7 

We also view our colleagues's decision to be inconsistent with the 

5 In the Huntsville Gob Memorandum, dated May 24, 1989, the same 

Associate Solicitor who had supported Mine Act jurisdiction in this case 

.opined that "[o]ther activities more remote from mining, such as reclamation 

work occurring on previously mined abandoned lands are not subject to the Mine 

Act." Huntsville Gob Memorandum at 1. 

6 As noted by the D.C. Circuit, statutes "are not to be read overliterally" and must be interpreted in light of the spirit in which they were 

written and the reasons for their enactment." General Serv. Emp. U. Local No. 

73 v. N.L.R.B., 578 F.2d 361, 366 (D.C. Cir. 1978). 

7 It should be noted that there were no Lancashire miners on the property 

who could have been endangered or otherwise affected by K&L's activities. 

89 4 
Commission's holding in Elam, 4 FMSHRC 5. 8 In this case the judge 

accepted joint stipulations which confirmed that, after September 6, 1988, 

Lancashire took no action to indicate that it intended to resume the 

extraction, production, milling or processing of coal. Stip. 13, Exh. AIJ1. September 6, 1988, was of course, the day MSHA officially declared the 

subject work site permanently abandoned. Indeed, after reviewing all the 

evidence, and in support of his decision to vacate the citation of 30 C.F.R. 

§ 77.1712, the judge concluded: 

On the basis of the facts and evidence adduced 

in these proceedings, I cannot conclude that the 

demolition and removal of the structures in guestion 

from the abandoned mine site in guestion were 

closely associated with activities normally 

associated with active coal mining. It is 

undisputed that active coal mining had not taken 

place at the site for at least 6-years prior to the 

demolition activities in question, and the underground shafts were permanently sealed in 1986, and 

MSHA declared the mine permanently abandoned in 

1988. Mr. Falger's unrebutted credible testimony 

suggests that the structures which were being 

demolished and removed from the site had not been 

used in any mining activity for at least 18 years 

prior to their demolition. There is no evidence 

that Lancashire ever intended to resume any active 

coal mining activities at the time the demolition 

work was taking place. The site was dormant, and 

t~ere is no evidence that Lancashire had taken any 

action to resume the extraction or processing of any 

coal after the site was declared permanently 

abandoned. Further, the demolition work was being 

done by K&L, and there is no evidence that any 

Lancashire employees were performing any of this 

work. 

12 FMSHRC at 302. (emphasis supplied.) 

The foregoing determination of the judge provides compelling support 

for Lancashire's argument that the principle enunciated by this Commission 

in Elam, 4 FMSHRC 5, dictates a conclusion that, under the facts of this 

case, MSHA did not have jurisdiction over Lancashire's work site. 

In Elam, the Commission eschewed a mechanical, reflexive determination 

8 While we do not disagree that the "'work of preparing the coal' is not 

an issuen in this case (slip op. at 13) or that "Elam applies when an 

operation is performing some functions normally associated with coal 

preparation" (slip op. at 13), we disagree that its application is so limited. 

895 
of jurisdiction under the Mine Act. Notwithstanding the fact that Elam 

actually performed many of the functions expressly included in the Mine 

Act's definition of coal preparation, i.e., storing, breaking, crushing, and 

loading, the Commission concluded that Elam was not "mining" but, rather, 

was performing those functions incidentally to its business, which was the 

commercial loading of coal and other material at a dock. Significantly, the 

Commission held: 

... inherent in the determination of whether an 

operation properly is classified as "mining11 is an 

inquiry not only into whether the operation performs 

one or more of the listed work activities, but also 

into the nature of the operation performing such 

activities. 

Elam, 4 FMSHRC at 7. 

In deciding thusly, the Commission reconciled a broad jurisdictional 

mandate in a way that was not obscured by the existence of superficial 

conditions which could have been seized upon to support a contrary 

conclusion. We seek to do no less resolving the instant case. 

Clearly the record in this matter establishes that Lancashire's 

operation, at the time MSHA asserted jurisdiction, was exclusively 

demolition. In our colleagues view, Lancashire's acknowledgement that 

Pennsylvania state law mandates the demolition of above ground structures of 

permanently abandoned facilities is a concession that such demolition is 

part of "the normal mining process. 11 Slip op. at 14. Thus, they conclude 

that, even under Elam, Lancashire is subject to the Mine Act. Id. We do 

not agree. There are many activities incidental to the establishment and 

winding down of a mining business that are not regulated by the Mine Act. 

Certainly, the acts of leasing coal reserves, obtaining permits, securing 

financing and insurance, purchas mining equipment, obtaining electrical 

power, and marketing the coal produced are all activities 11 related to the 

overall process of mining coal" but are all clearly not subject to Mine Act 

jurisdiction. Moreover, in construing the breadth of the jurisdiction of 

this federal statute, it is clearly error to rely upon the existence of a 

particular state law. Obviously our holding today applies nationally, 

irrespective of the provisions of a particular state's reclamation 

requirements. 

Proper application of the Elam test compels a determination that, 

under the facts of this case, MSHA.erroneously asserted jurisdiction over 

the demolition activities at the Lancashire work site. 

The affirming Commissioners also conclude that Lancashire is exempt 

from OSHAct coverage because 11 the Secretary exercised her inspection 

authority under the Mine Act 11 and the "Secretary has never attempted to 

regulate the safety and health conditions at Lancashire under the OSHAct. 11 

Slip op. at 15. Evidently they are of the opinion that, anytime MSHA 

conducts an after-the-fact inspection of an accident site, the operator of 

that site becomes subject to a retroactive application of Mine Act 

896 
jurisdiction and regulations and is automatically exempted from the OSHAct 

pursuant to the provisions set forth in section 4(b)(l) thereof. 

The Secretary generally regulates safety and health under the OSHAct, 

but regulation thereunder does not extend to "working conditions of 

employees with respect to which other Federal agencies ... exercise 

statutory authority to prescribe or enforce standards or regulations 

affecting occupational safety or health." 29 U.S.C. § 653(b)(l). The court 

in Southern Ry. Co. v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 

429 U.S. 999 (1976), relied on by the affirming Commissioners (slip op. at 

14), emphasizes that the legislative history of the OSHAct clearly indicates 

that it is not the mere existence of the authority of another agency to act, 

but its adoption and enforcement of rules and rer;ulations that exempts 

employees from coverage under the OSHAct. 539 F.2d at 336, 337. In that 

case, Southern argued that all its employees were exempt from OSHAct 

coverage because the Federal Railway.Administration ("FRA") had promulgated 

regulations affecting the working conditions of railway employees. The 

Secretary of Labor contended that, although FRA had authority to regulate 

all areas of employee safety for the railway industry, section 4(b)(l) of 

the OSHAct exempts only those areas of railway employee safety in which FRA 

had actually exercised its authority. Finding that the safety regulations 

of FRA were confined almost exclusively to over-the-road transportation 

operations, and that FRA had not issued regulations with respect to offices, 

shops and repair facilities, the court rejected both the broad "industry 

wide".exemption urged by Southern, as well as the narrow "particular 

discrete hazards" exemption urged by the Secretary. 539 F.2d at 338, 339. 

Rather, it found that the exemption from OSHAct coverage applies where 

another agency "has exercised its statutory authority to prescribe 

standards" for the "environmental area in which an employee customarily goes 

about his daily tasks." 539 F.2d at 339 (emphasis added). Accordingly, the 

court found no exemption from the OSHAct for those areas of Southern's 

operation with respect to which FRA had not issued regulations. 539 F.2d at 

339-40. 9 

Notwithstanding our colleagues' unsupported assertion to the contrary 

(slip op. at 16), MSHA has not exercised regulatory authority. It has not 

addressed either the "environmental area" or the "precise hazards" involved 

with this demolition project as evidenced by the fact that MSHA could cite 

Lancashire only for (1) its failure to maintain the mine in good condition, 

when it was actually demolishing the structure in issue, (2) for its failure 

to notify MSHA that it was reopening a mine, when it was actually taking 

further steps to preclude ever reopening (a citation that was vacated by the 

9 It is informative to note that the Secretary has maintained the 

position asserted in Southern Ry. as recently as December, 1990, in a brief 

filed in the pending case of Pennsylvania Electric Company v. FMSHRC, No. 90-

3636, (3d Cir.). In that brief, she states that she "continues to maintain 

that OSHA is preempted under section 4(b) (1) only if another agency has 

addressed the precise hazard at issue." Sec. Br. in Pennsylvania Electric 

Company at 40, n. 32. (emphasis supplied). 

897 
judge), and for (3) a recordkeeping violation. OSHA, on the other hand, has 

issued specific regulations with respect to demolition, 29 C.F.R. § 1926.850 

et seg. (1988). Included is a regulation requiring that an engineering 

survey be conducted prior to the commencement of demolition to determine, 

among other things, the possibility of unplanned collapse. 29 C.F.R. § 

1926. 850(a). 10 

The Fifth Circuit has also addressed this issue in Southern Pacific 

Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976). Relying on the 

legislative history of the OSHAct, the court found that the "Senate 

proceedings clearly demonstrate that the Senate language [which was 

substituted for the House version] was not intended to create an industrywide exemption." 539 F. 2d at 390-91. The court further found that 

"interpretation of section·4(b)(l) as an industry-wide exemption becomes ... 

an assertion inconsistent with an announced statutory purpose," i.e., "to 

assure so far as possible to every man and woman in the nation, safe and 

healthful working conditions." 539 F.2d at 391, 29 U.S.C. 65l(b). 

The Third Circuit has also concluded that "section 4(b)(l) preemption 

requires a two-part showing; first, that a coordinate federal agency has 

'exercised' authority by promulgating regulations in the area and second, 

that these concurrent regulations cover the specific 'working 

conditions' .... " Columbia Gas of Pa., Inc. v. Marshall, 636 F.2d 913, 915-

16 (3d Cir. 1980). "The preempting agency must actually promulgate 

regulations, mere declaration of authority is not enough." 636 F.2d at 916, 

n. 7. 

It appears that the affirming Commissioners have equated MSHA's post 

accident inspection and shoe-horn attempts at citations with "regulation," 

and have ignored OSHA's final regulations in concluding that no attempts 

have been made by OSHA to regulate this demolition project. However, the 

Secretary herself recognizes, albeit in other cases, that "regulation" 

sufficient to exempt an operator from OSHAct coverage does, in fact, require 

the promulgation of regulations. 

In rej the third, fourth and fifth circuits' holdings in 

Southern Ry. Co., Columbia Gas of Pa., and Southern Pacific Transportation 

10 Section 1926.850(a) of the OSHA regulations provides, in relevant 

part, as follows· 

Preparatory operations. 

(a) Prior to permitting employees to start 

demolition operations, an engineering survey shall be 

made, by a competent person, of the structure to 

determine the condition of the framing, floors, and 

walls, and possibility of unplanned collapse of any 

portion of the structure .... 

29 C.F.R. § 1926.850(a). 

898 
Co., our colleagues state that, under such a rationale (requiring the 

issuance of demolition regulations to establish MSHA jurisdiction), 

"consequences would ensue that are at variance with Congressional intent." 

Slip op. at 15. Obviously they are ignoring Congress' intent in enacting 

the OSHAct, and in particular section 4(b)(l) thereof, i.e., to remove 

jurisdiction from OSHA only when another agency with authority to regulate 

safety in the workplace has actually taken steps in that direction by 

issuing regulations. 

In attempting to distinguish this case, our colleagues state that we 

are dealing here with "the Secretary's direct assertion of statutory 

authority for MSHA" as opposed to her defense of jurisdiction "where OSHA 

has asserted authority and where that authority is being challenged." Slip 

op. at 16. While we do not disagree with that statement, we do not see that 

it provides a basis for a different interpretation of the same law. Nor do 

our colleagues enlighten us as to why this should be the case. They also 

assert, without support, that "[t]his is not a case where OSHA's residual 

regulatory authority derives from a lack of exercise of regulatory authority 

by another agency." Slip op. at 16. In fact, this is just such a case if 

one recognizes, as have the courts as well the Secretary, that "regulation" 

does, in fact, require the issuance, of regulations. In this case, no MSHA 

regulations exist. 11 

Our colleagues also seem to be of the opinion that MSHA is not a 

separate agency from OSHA because they are "within a single cabinet-level 

department, under a single Secretary." Slip op. at 16. Whether the preempting agency is within or without "a single cabinet level department under 

a single Secretary" is totally irrelevant to the purpose of section 4(b)(l) 

of the OSHAct', i.e., that protection of the OSHAct is not to be pre-empted 

unless another agency has specifically regulated at least the "environmental 

area" in question. 12 

11 In our view, our colleagues misread the Commission's decision in King 

Knob Coal Company, Inc., 3 FMSHRC 1417 (June 1981). That case does not deal 

with "inconsistent enforcement policies of the Secretary" (slip op. at 14-15) 

nor did the Commission "conclude[] that inconsistent enforcement policies of 

the Secretary are not necessarily dispositive of whether a violation 

occurred." at 15. The issue in that case was whether the Secretary was 

.estopped from enforcing a regulation as written because MSHA' s Manual set 

forth a different interpretation of what the regulation required. 3 FMSHRC at 

1417. The Commission ected King Knob's argument on the grounds that 

"equitable estoppel generally does not apply against the government." 3 

FMSHRC at 1421. 

12 Even the Secretary has not advocated this approach, either in this 

case or in Pennsylvania Electric Company, where she argues that her 

promulgation of an MSHA a standard applicable to the working conditions in 

issue triggers pre-emption of OSHAct jurisdiction. Sec. Br. in Pennsylvania 

Electric Company at 37. 

899 
Finally, our colleagues assert that "the essential thrust of 

Lancashire's argument is to urge that no governmental oversight was 

appropriate for the demolition activity involved in this case." Slip op. at 

17. A careful reading of Lancashire's Brief and its Supplemental Brief 

prove otherwise. In its initial Brief, Lancashire states: 

... While MSHA's expertise in the extraction, 

milling and preparation of minerals may be of use 

when dealing with an underground tunnel or even 

possibly the construction of a structure that is to 

be used in the mining process, it would be of little 

use in connection with the demolition of above 

ground structures at an abandoned mine site. The 

proper demolition of a storage silo does not depend 

on whether it used to be filled with coal or grain. 

Thus, it makes perfect sense for the more general 

agency, OSHA, and not MSHA, to have jurisdiction 

over the demolition of such structures. 

Lane. Brief at 12, n.10. 

In its Supplementa~ Brief, Lancashire states: 

... Thus, enforcement of health and safety standards 

in connection with such demolition can and should be 

carried out by the more generalized Occupational 

Safety and Health Administration ("OSHA"), and not 

by MSHA. Furthermore, as explained in Petitioner's 

Brief at 12 n.10, exclusion from Mine Act coverage 

for the demolition of these structures is entirely 

consistent with the OSHA-MSHA interagency agreement. 

Lane. Supplemental Brief at 5. The thrust of Lancashire argument is that 

OSHA should regulate reclamation-oriented activities such as demolition at 

abandoned mine sites. 

In this case, there is no evidence that the safety of any miners (the 

group Congress intended to protect when it enacted the Mine Act) was 

involved. The Secretary has issued no regulations under the Mine Act that 

&nhance in the circumstances at issue, which is, after all, the goal 

of both the Mine Act and the OSHAct. Had the engineering survey required 

under the OSHAct been done, perhaps Lancashire and K&L would have been 

alerted to the fact that the procedure being contemplated was unsafe. 

(MSHA's regulations do not tell us what it would have required had 

Lancashire advised MSHA that it was "reopening" the building it was planning 

to demolish.) The Secretary's position here is not only inconsistent with 

her position in other projects (as evidenced by the Huntsville Gob 

Memorandum) and other cases (as evidenced by her argument in Southern Ry. 

and her brief in Pennsylvania Electric), but the record is devoid of 

evidence indicating any previous attempts to enforce the Mine Act in this 

900 
fashion. 13 In addition, the inspector, who was uncertain of whether MSHA 

had jurisdiction, was apparently unable to get clarification from either his 

Subdistrict or District Managers, as evidenced by the memo from the District 

Manager to the MSHA Administrator requesting a determination. 

In summary, we are of the opinion that Congress did not intend to 

regulate the demolition industry under the Mine Act, that neither this 

"hazard" nor "environmental area" is addressed in Mine Act regulations so as 

to trigger the section 4(b)(l) preemption from the OSHAct, and that the 

Secretary's assertion of jurisdiction under the Mine Act, even if entitled 

to weight, is unreasonable in this case. Accordingly, we would reverse the 

administrative law judge and vacate the citations and order 

~/. Richard V. Backley, Acting Chairman 

• 13 In fact, the evidence of record is to the contrary. MSHA Inspector 

,Sparvieri testified that once a mine site has been permanently abandoned, 

MSHA's duty to inspect it ceases. Tr. 94. MSHA inspector Leroy Nienenre 

testified that, although he had conducted at least one inspection at the 

Lancashire site during the time of the demolition project, he had been told 

by the supervisor not to inspect it. Tr. 234-37. He was not aware of any 

time that MSHA had asserted jurisdiction at an abandoned mine because of 

demolition work taking place. Tr. 237. The affidavit of retired MSHA 

inspector Thomas J. Summers, received into evidence as Exhibit C-3, states 

that in his eighteen years experience with MSHA he was unaware of any cases 

in which a permanently abandoned mine was again inspected by MSHA except 

where steps were taken by the operator that indicated the resumption of 

production or processing of coal. Exh. C-3 at , 3. 

901 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 25, 199] 

Docket No. WEVA 89-192 

EASTERN ASSOCIATED COAL CORPORATION 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et .§..fill. (1988) ("Mine Act" or "Act"). It 

involves the validity of two orders of withdrawal issued for the same 

violative condition to Eastern Associated Coal Company ("Eastern"), by the 

Department of Labor's Mine Safety and Health Administration ("MSHA"), pursuant 

to sections 104(d)(2) and 107(a) of the Mine Act. 30 U.S.C. §§ 814(d)(2) & 

817(a). Commission Administrative Law Judge Avram Weisberger affirmed both 

withdrawal orders. In an Order denying Eastern's Motion for Summary Decision, 

he concluded that neither the Mine Act nor its legislative history prohibits 

MSHA from issuing a section 104(d)(2) order of withdrawal in conjunction with 

a section 107(a) imminent danger order of withdrawal. 11 FMSHRC 1868 

(September 1989)(ALJ). On the basis of stipulated facts, the judge granted 

the Secretary of Labor's Motion for Summary Decision, affirmed the withdrawal 

orders and assessed a civil penalty of $1,500. Unpublished Decision dated 

April 20, 1990. For the reasons set forth below, we affirm the judge's 

decision. 

I. 

Factual and Procedural Background 

Eastern operates a surface coal facility at the Federal No. 2 Mine in 

Monongalia County, West Virginia. On January 26, 1989, MSHA Inspector Joseph 

Migaiolo issued several withdrawal orders at the mine including Order 

No. 3106731, under section 107(a) of the Mine Act, and Order No. 3106732, 

902 
under section 104(d)(2), for a violation of 30 C.F.R. § 77.400. 1 The 

inspector issued the section 107(a) imminent danger order because he 

determined that a guard for the tail roller of a conveyor belt had been 

removed and that miners had cleaned spillage from both sides of the unguarded 

tail roller while the belt was operating. The section 104(d)(2) order alleged 

a violation of 30 C.F.R. § 77.400 for the same unguarded tail roller that was 

described in the imminent danger order. The order also stated that "[t]his is 

a repeat violation at this location identical in nature from a previous 

inspection as well as repeated when observed at least twice by safety 

committee inspections [sic]." Order No. 3106732. 

The orders were issued at 8:21 a.m. The cited condition was abated at 

8:45 a.m. on the same day, when Eastern installed the guards at the cited 

locations and "presented education and training to the miners on safe work 

procedures." Orders 3106731 and 3106732. Eastern contested both orders. 

On August 21, 1989, Eastern filed a Motion for Summary Decision with the 

judge on the basis that "as a matter of law, only a 104(a) citation may be 

issued in conjunction with a 107(a) imminent danger order." Eastern asked the 

judge to modify the section 104(d)(2) order to a section 104(a) citation. It 

conceded that the conditions set fo:r;!;h .in. the orders existed but denied that 

they were the result of its unwarrantable failure. Eastern contended that 

section 107(a) of the Mine Act 2 allows an inspector to issue a citation 

1 Section 77 .400 entitled "Mechanical equipment guards" provides, in 

pertinent 

2 

(a) 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 

* * * 

(d) Except when testing the machinery, guards 

shall be in place while machinery is being 

operated. 

Section 107(a) provides: 

If, upon any inspection or investigation of a 

coal or other mine which is subject to this [Act], an 

authorized representative of the Secretary finds that 

an imminent danger exists, such representative shall 

determine the extent of the area of such mine through 

out which the danger exists, and issue an order 

requiring the operator of such mine to cause all 

persons, except those referred to in section [104(c)] 

of this [Act], to be withdrawn from, and to be 

903 
under section 104(a) along with an imminent danger order but prohibits him 

from issuing another withdrawal order for the same condition. Eastern further 

argued that section 104(d)(l) of the Mine Act 3 also supports its position 

that only a section 104(a) citation may be issued with an imminent danger 

order because section 104(d)(l) expressly limits the issuance of a citation 

under that section to circumstances in which "the conditions created by such 

violation do not cause imminent danger." 30 U.S.C. § 814(d)(l). Eastern 

reasoned that because section 104(d)(2) of the Mine Act 4 is dependent upon 

prohibited from entering, such area until an 

authorized representative of the Secretary determines 

that such imminent danger and the conditions or 

practices which caused such imminent danger no longer 

exist. The issuance of an order under this subsection 

shall not preclude the issuance of a citation under 

section [1041 of this [Act] or the proposing of a 

penalty under section [110] of this [Act]. 

30 U.S.C. § 817(a)(emphasis added). 

3 Section 104(d)(l), in relevant part, provides: 

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

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds that, 

while the conditions created by such violation do not 

cause imminent danger, such violation is of such 

nature as could significantly and substantially 

contribute to the cause and effect of a coal or other 

mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of 

such operator to comply with such mandatory health or 

safety standard, he shall include such finding in any 

citation given to the operator under this Act. 

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

4 Section 104(d)(2) provides: 

If a withdrawal order with respect to any area 

in a coal or other mine has been issued pursuant to 

paragraph (1), a withdrawal order shall promptly be 

issued by an authorized representative of the 

Secretary who finds upon any subsequent inspection the 

existence in such mine of violations similar to those 

that resulted in the issuance of the withdrawal order 

under paragraph (1) until such time as an inspection 

of such mine discloses no similar violations. 

Following an inspection of such mine which discloses 

no similar violations, the provisions of paragraph (1) 

904 
104(d)(l), the prohibition in (d)(l) against an inspector finding an imminent 

danger in conjunction with a section 104(d)(l) citation also applies 

to (d)(2). Eastern argued that "as only 'violations similar to those that 

resulted in the issuance of the withdrawal order under paragraph (l)' may 

result in a (d)(2) order, and as paragraph (d)(l) citations may be issued only 

when there is no imminent , it follow[s] that a (d)(2) order may not be 

issued in conjunction with the 107(a) order." Memorandum of Law in Support of 

Respondent's Motion for Summary Decision at 4 (emphasis in original). 

In response to Eastern's motion, the Secretary stated that she is not 

precluded from issuing a section 104(d)(2) unwarrantable failure order in 

conjunction with a section 107(a) imminent danger order for two basic reasons. 

First, she contended that the language of the Mine Act and the legislative 

history do not preclude the conjunctive issuance of such orders. Second, she 

maintained that her position on this issue is based on a permissible 

construction of the statute, is reasonable, and furthers the purpose of the 

Act. She concluded by arguing that "[o]ne order addresses the heightened 

of the operator while the other addresses the heightened gravity of 

the condition cited, and an should not be made to choose which order 

he will issue." Secretary's Response to Motion for Summary Decision at 12. 

The judge rejected each of Eastern's arguments and denied Eastern's 

motion. 11 FMSHRC at 1868. First, the judge stated that he could find no 

support in the language of section 107(a) or the legislative history for 

Eastern's argument that by expressly not precluding the issuance of a citation 

under section 104(a), Congress intended thereby to preclude the issuance of a 

section 104(d) order. 11 FMSHRC at 1868-69. Second, he determined that the 

language referred to by Eastern in section 104(d)(l) was "insufficient to base 

a conclusion that Congress intended that a section 104(d)(2) order may not be 

issued in conjunction with a section 107(a) order." 11 FMSHRC at 1869. The 

judge with the Secretary that if Eastern's interpretation is adopted, 

"it will result in the frustration of the statutory scheme embodied in section 

104(d)( and (2), as an inspector would be prevented from issuing orders 

by section 104" whenever an imminent danger exists. Id. He 

concluded that "it has not been established, that, as a matter of law, the 

section 104(d)(2) order herein was improperly issued, and should be amended to 

a section 104(a) citation." 12 FMSHRC at 1870. 

Eastern petitioned the Commission for interlocutory review of the 

judge's order (29 C.F.R. § 2700.74), and the Commission denied the petition on 

October 26, 1989. Eastern's petition to reconsider the denial was also denied 

by the Commission on November 30, 1989. 

After the judge set the case for bearing, the parties 

following facts: (1) "An imminent danger as defined by 

the Act existed at the belt roller;" (2) "A violation of 30 

existed at the belt roller;" (3) "The violation was of such 

shall again be applicable to that mine. 

30 U.S.C. § 814(d)(2) (emphasis added). 

905 

to the 

Section 107(a) of 

C. F. R. § 77. 400 

a nature as to 
and substantially contribute to the cause and effect of a mine 

hazard;" and (4) "The violation was the result of an unwarrantable 

failure on the part of [Eastern]." Stipulated Facts, filed March 27, 1990, 

at 2. 

The Secretary filed a Motion for Summary Decision, asserting that the 

Stipulated Facts disposed of all issues except whether section 107(a) and 

104(d)(2) orders can be issued for the same condition. She argued that since 

the judge decided that issue in his Order of September 12, 1989, the judge 

should issue a decision affirming the orders and assessing a penalty. 

In an unpublished decision dated April 20, 1990, the judge held: 

The Secretary ... on March 27, 1990, filed a 

Motion for Summary Decision concerning Order Nos. 

3106731 and 3106732. This Motion was not opposed by 

Respondent. Accordingly, and based on the stipulated 

facts filed along with the Motion, the Motion is 

GRANTED. 

The judge assessed a civil penalty .. of $1, 500. 

II. 

Disposition of Issues 

Eastern's position before the Commission is essentially the same as it 

was before the judge. First, it argues that the last sentence of section 

107(a) prohibits the issuance of a companion section 104(d)(2) order of 

withdrawal. It contends that the terms "order" and "citation" are not used 

interchangeably in the Act because each has "a precise meaning and precise 

ramifications." Eastern Br. 3. It maintains that a court may not insert 

words or phrases into a statute and that if Congress had intended that section 

104(d) orders could be issued in conjunction with 107(a) orders, it would have 

so stated Eastern argues that because the language of section 107(a) is clear 

on its face, the Commission cannot expand that section beyond its plain 

and that resort to the legislative history to aid construction is 

proper only where the language of the Mine Act is ambiguous. 

Second, Eastern contends that the judge read section 104(d) in 

isolation, without considering "the balance of the enforcement scheme 

contained in 104" of the Mine Act. Eastern Br. 5. As an example, Eastern 

offers the fact that conditions supporting the issuance of a withdrawal order 

pursuant to section 104(b), 30 U.S.C. § 814(b), may also support the issuance 

of a section 104(d) order. Eastern argues that "MSHA correctly makes no 

effort to issue concurrent withdrawal orders at that point for the obvious 

reason that they would be in derogation of the statutory scheme of 

enforcement." Eastern Br. 6. Likewise, Eastern asserts that issuing 

concurrent 107(a) and 104(d) orders would be "in derogation of the statutory 

scheme of enforcement." Id. In addition, Eastern maintains that the only 

explanation for the last sentence of section 107(a) is that it 

enables the Secretary to propose a penalty should any violation be found. 

906 
Finally, Eastern argues that the statutory purpose of protecting the safety of 

miners will not be frustrated if a 104(d)(2) order cannot be issued with a 

107(a) order because a withdrawal of miners will be required by the imminent 

danger order in any event. 

The Secretary's position also is essentially the same as it was before 

the judge. First, she argues that the language of the last sentence of 

section 107(a) is permissive, not restrictive. She argues that had "Congress 

meant to restrict the type of enforcement action the Secretary may issue in 

conjunction with a section 107(a) order, it would have stated that 'only' 

section 104(a) citations may be issued, or that 'citations, but not orders' 

may be issued." Sec. Br. 6. She concurs with the judge's conclusion that 

Eastern's interpretation is not supported by a plain reading of section 107(a) 

or its legislative history. She states that the disputed language in section 

107(a) was included merely to make clear that the enforcement mechanisms 

available under section 104 and 110 are available to the Secretary even when 

the particular violation creates an imminent danger. 

The Secretary maintains that "Congress could not reasonably have 

intended that [an operator's unwarrantable] misconduct be removed from the 

reach of section 104(d) sanctions ~~rely because of the happenstance that such 

misconduct resulted in conditions that arose beyond merely 'significant and 

substantial' and created an imminent danger." Sec. Br. 9. She maintains 

that, if an operator could evade the sanctions of section 104(d) on the basis 

that the violation was so egregious as to result in an imminent danger, "the 

incentive to improve conduct, which the 104(d) withdrawal order threat places 

on an operator, would be lost." Id. Finally, she concludes that, because her 

interpretation of the disputed language of section 107(a) is reasonable, the 

Commission should hold that the issuance of a section 107(a) order does not 

affect her ability to issue orders under section 104(d). 

A. Section 107(a) 

Each party argues that the plain meaning of the last sentence of section 

107(a) supports its respective position in this case. By its terms, the 

disputed sentence permits an inspector to issue a section 104 citation in 

conjunction with an imminent danger order. The language of this sentence, 

however, does not address the issuance of other orders. Consequently, we 

believe that the language is sufficiently ambiguous to require a more thorough 

analysis than that provided by the parties. 

The legislative history of the last sentence of section 107(a) is 

instructive. The imminent danger provision of the Coal Mine Health and Safety 

Act of 1969, 30 U.S.C. § 801 et gg_. (1976)(amended 1977) ("Coal Act"), was 

contained in that statute's section 104(a). That provision was very similar 

to section 107(a) of the Mine Act of 1977 but did not contain the language in 

dispute in this case. 5 Section 104(b) of the Coal Act authorized an 

5 Section 104(a) of the Coal Act provided: 

If, upon any inspection of a coal mine, an 

907 
inspector to issue to an operator a notice of violation (the equivalent of a 

citation) if he found a violation of a safety or health standard that did not 

create an imminent danger. 6 Under the Coal Act, if an inspector found that 

a violation created an imminent danger, he issued an imminent danger order 

under section 104(a) and the same order also charged the operator with a 

violation of a safety or health standard. A civil penalty was assessed for 

the violation alleged in the order. Eastern Associated Coal Corp., 1 IBMA 

233, 236, 1 BNA MSHC 1046, 1048-49 (December 1972). In such a case, a 

separate notice of violation (citation) was not issued by the inspector. 

The version of the Mine Act that passed the House in 1977 did not amend 

the imminent danger provision of the Coal Act. Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 1260 et seq. (1978)("Legis. 

=~_,_"). Thus, the House bill did not purport to change the above-described 

method of charging operators with violations in imminent danger orders and 

assessing civil penalties for such violations. The Senate bill, on the other 

hand, moved the imminent danger provision to a separate section of the Act. 

From the outset, the Senate bill contained the disputed language permitting 

the issuance of a citation for a violation under what became section 104 of 

the Mine Act. Legis. Hist. at 150,,_551 & 1121. In addition, the section of 

the Senate bill that became section lOS(a) of the Mine Act, 30 U.S.C. 

§ 815(a), provided for the assessment of a penalty "after ... the Secretary 

issues a citation or order under section [104] .... " Legis. Hist. at 1118. 

authorized representative of the Secretary finds that an 

imminent danger exists, such representative shall 

determine the area throughout which such danger exists, 

and thereupon shall issue forthwith an order requiring 

the operator of the mine or his agent to cause 

immediately all persons, except those referred to in 

subsection (d) of this section, to be withdrawn from, 

and to be prohibited from entering, such area until an 

authorized representative of the Secretary determines 

that such imminent danger no longer exists. 

30 U.S.C. § 814(a) (1976) (amended). 

6 Section 104(b) of the Coal Act provided, in pertinent part: 

[I]f, upon any inspection of a coal mine, an authorized 

representative of the Secretary finds that there has 

been a violation of any mandatory health or safety 

standard but the violation has not created an imminent 

danger, he shall issue a notice to the operator or his 

agent fixing a reasonable time for the abatement of the 

violation. 

30 U.S.C. § 814(b) (1976) (amended) (emphasis added). 

908 
The Conference Report states: 

Under both [the Senate and House] versions, the 

issuance of an imminent danger withdrawal order would 

not preclude the issuance of a notice (or citation) or 

the proposal of a civil penalty assessment. 

The conference substitute conforms to the Senate 

bill .... 

S. Rep. No. 461, 95th Cong., 1st Sess. 55 (1977) Legis. Hist. at 

1333. Thus, under the structure of the Mine Act, the Secretary's allegation 

of a violation must be issued under section 104 rather than section 107(a) 

because section 105(a) provides for the assessment of a penalty only after 

"the issues a citation or order under section 104 .... " 

30 U.S.C. § 815(a). 

Further analysis of the language of the disputed sentence in section 

107(a) through intrinsic aids to construction helps explain its purpose. 2A 

Sutherland Statutory Construction, § 45.14, at 70 (Sands 4th ed. 1984 rev.). 

One frequently used principle of statutory construction provides that 11 the 

mention of one thing implies the exclusion of another; expressio unius est 11 73 Am Jur. 2d, Statutes, § 211, at 405. This principle 

of construction provides that the 11 [l]egislative prescription of a specified 

sanction for noncompliance with statutory requirements ... exclude[s] the 

application of other sanctions." Sutherland, supra, § 47.23 at 194. In 

essence, Eastern relies upon this principle to support its view that Congress 

knew the difference between citations and orders so that its failure to 

include orders in the disputed language means that it intended to exclude 

them. 

This principle of statutory construction, however, "cannot apply when 

the legislative history and context are contrary to such a reading of the 

statute." U.S. v. Castro, 837 F.2d 441, 442-43 & n. 2 (11th Cir. 1988). It 

is also clear that this principle is not a rule of law. Loe. Union 2274 UMWA 

10 FMSHRC 1493, 1502 (November 1988), aff'd sub. nom. 

Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773 (D.C. Cir. 1990); Sutherland, 

supra, § 47.23 at 194. As a consequence, it can be overcome by indications of 

contrary legislative intent or policy. Id. In addition, when the word 

"include" or "including" is used in a statute, "it is generally improper to 

conclude that entities not specifically enumerated are excluded." Sutherland, 

supra, § 47.23 at 194. 

As a matter of statutory construction, we believe that the "shall not 

" is, as the Secretary maintains, permissive and not 

restrictive. This language does not expressly exclude or otherwise address 

the issuance of orders of withdrawal. Rather, this language is similar to 

statutory provisions that contain the word "include" or "including," with the 

result that "entities not specifically enumerated" are not to be excluded 

unless such exclusion is warranted by the context or legislative history. 

Nothing in the legislative history suggests that the purpose of the 

909 
disputed language was to restrict the authority of the Secretary. As noted, 

this language was apparently added because section 105(a) provides a mechanism 

for assessing civil penalties only for citations and orders issued under 

section 104. Thus, at a minimum, this language was included to permit the 

Secretary to allege violations of safety and health standards in conjunction 

with imminent danger closure orders and to assess civil penalties for these 

alleged violations. We conclude from the legislative history that Congress 

did not intend the last sentence of section 107(a) to circumscribe the 

Secretary's enforcement authority under section 104 of the Act. 

we also conclude from the Mine Act's remedial purpose that the disputed 

language should not be construed to limit the Secretary's enforcement 

authority. The Act's enforcement scheme provides for "increasingly severe 

sanctions for increasingly serious violations or operator behavior." Cement 

Division. National Gypsum Company, 3 FMSHRC 822, 828 (April 1981). Congress 

viewed section 104(d) as a key element in the overall attempt to improve 

health and safety practices .in the mining industry. See S. Rep. No. 181, 95th 

Cong., 1st Sess. 30-32, reprinted in Legis. Hist. 618-20. The threat of a 

chain of section 104(d) orders "provides a powerful incentive for the operator 

to exercise special vigilance in health and safety matters" because this 

sanction is triggered by the unwarrantable conduct of the operator. Nacco 

Mining Co., 9 FMSHRC 1541,~1546 (September 1987). A determination that an 

operator's conduct in relation to a violation is unwarrantable is as relevant 

to situations where the violation creates an imminent danger as to violations 

involving lesser hazards. To read out of the Act the protections and 

incentives of a section 104(d)(2) order on the basis that the hazard created 

by the violation is so great that it creates an imminent danger would seem 

peculiar on its face and would blunt the effectiveness of this sanction. 

The importance of section 104(d)(2) orders stems from the fact that the 

chain of withdrawal order liability continues under that section until broken 

by an intervening clean inspection. UMWA v. FMSHRC and Kitt Energy Corp., 

768 F.2d 1477, 1479 (D.C. Cir. 1984). The fact that the section 104(d)(2) 

order would not require the actual withdrawal of miners, inasmuch as they 

would be withdrawn by the imminent danger order in any event, does not render 

the unwarrantable failure order meaningless. The unwarrantable failure order 

"would not be pointless, for it would serve to place or keep the mine operator 

on the section 104(d)(2) probationary chain." Emerald Mines Go. v. FMSHRC, 

863 F.2d 51, 57 (D.C. Cir. 1988)(footnote omitted). 

Based on the legislative history, the remedial purposes of the Act and 

the role of section 104(d) orders in the statutory scheme of enforcement, we 

conclude that the Secretary is not prohibited by the disputed language from 

issuing the two orders in this case. 

B. Section 104(d) 

Eastern also argues that section 104(d) itself prohibits the issuance of 

an imminent danger order in conjunction with a section 104(d)(2) order. The 

judge held that neither the language nor the legislative history supports 

Eastern's position. 11 FMSHRC at 1869. He further stated that he did not 

find merit in Eastern's argument that "inasmuch as section 104(d)(l) citations 

910 
may be issued only where there is no imminent danger, it follows that 

similarly a section 104(d)(2) order may not be issued in conjunction with a 

section 107(a) order." Id. We agree with the judge. 

We reach our conclusion based on the plain meaning of the text of the 

Mine Act. Section 104(d)(l) provides, in pertinent part, that [1) if an 

inspector "finds that there has been a violation of arty mandatory health or 

safety standard, and [2) if he also finds that, while the conditions created 

by such violation do not cause imminent danger, such violation is of such 

nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard, and [3] if he finds 

such violation to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall include such 

finding in any citation given to the operator under this Act." (Emphasis and 

bracketed numbers added). We read the language in clause [2] to mean that the 

conditions created by an S&S violation "need not be so grave as to constitute 

an imminent danger." National Gypsum, 3 FMSHRC at 828. Because a section 

104(d)(2) order need not be S&S, we conclude that the "do not cause an 

imminent danger" language contained in (d)(l) is not relevant to the issue of 

whether a (d)(2) unwarrantable failure order can be issued in conjunction with 

an imminent danger order. 

III. 

Conclusion 

Accordingly, on the foregoing basis, the judge's decision is affirmed. 

cd::~:ucd cv4,L . .-c., 

Richard V. Backley, Acting Chairma~, 

J~ce <J~t2-~£ A. Doyle, Commissioner ;? 

Arlene Holen, cfullllliSSiOner 

\._// /I L, I 

I I ' I 

L. 

(j~/~ 

Clair Nelson, Commissioner 

911 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 25, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEVA 89-278 

SOUTHERN OHIO COAL COMPANY 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)(the "Mine Act"). The issue 

is whether Southern Ohio Coal Company ("SOCCO") violated 30 C.F.R. 

§ 77.404(a), a mandatory safety standard applicable to surface coal mines and 

surface work areas of underground coal mines. 1 Also at issue whether the 

alleged violation was of a significant and substantial nature and whether it 

was caused by SOCCO's unwarrantable failure to comply with the cited standard. 

Conm1ission Administrative Law Judge George Koutras determined that SOCCO 

violated section 77.404(a), that the violation was of a significant and 

substantial nature, and that it was caused by SOCCO's unwarrantable failure to 

comply. 12 FMSHRG 1627 (August 1990)(ALJ). The Commission granted SOCGO's 

Petition for Discretionary Review. For the reasons set forth below, we affirm 

the judge's decision. 

1 30 G.F.R. § 77.404(a) provides: 

(a) Mobile and sta~ionary machinery and 

equipment shall be maintained in safe operating 

condition and machinery. or equipment in unsafe 

condition shall be removed from service immediately. 

912 
I. 

Factual Back~round and Procedural History 

The focus of the proceeding is on a D-7 Caterpillar bulldozer ("dozer") 

that SOCCO operated with two broken cat or track pads between May 15, 1989 and 

May 19, 1989, at the surface refuse dump of its Martinka No. 1 Mine in West 

Virginia. SOCCO operated the dozer during the day and at night to move waste 

product at the dump. 

The dozer, which is approximately 13 feet long, moves on two crawler 

tracks (often called caterpillars) consisting of metal plates called track 

pads. There are 38-42 pads on each track and each pad is 32 to 36 inches 

wide. Four bolts attach each pad to the track. The top portion of the loop 

formed by the crawler tracks is often used as a walkway by the dozer operator 

to enter and exit the cab. This walkway is estimated to be 32 to 34 inches 

above the ground. 

The dozer cab may be entered or exited from either side. Normally, the 

operator climbs onto the dozer from the back and walks on one of the crawler 

tracks to the cab. The distance from the back of the dozer to the cab door is 

approximately eight feet. _There is"a fender along each side of the cab, which 

acts as a platform above the track and may be used to step into the cab. The 

fender covers part of the track pads along the cab. It is also possible to 

reach the cab by climbing up onto one of the crawler tracks from either side 

of the dozer or by climbing up the front and walking on one of the crawler 

tracks to th~ cab. Travel on the dozer's left track is necessary to check the 

oil, transmission fluid, and water level. Similarly, travel on the dozer's 

right track is necessary to check the fuel. 

The two broken track pads on the dozer had been reported to SOCCO 

management on Monday, May 15, 1989. Dozer operator Bill Jones reported in the 

"operator's check list of vehicle condition," dated May 15, 1989, that two 

pads were broken and needed replacement and SOCCO acknowledges that it first 

became aware of the defective cat pads on that day. Sec. Exh. 1 (SOCCO's 

Answer to Interrogatory 11). On May 16, 1989, dozer operators Delbert Barnett 

and Jones again reported in the operator's check list that two pads on the 

left side track of the dozer were broken. That same day Barnett tripped on, 

and almost fell through, one of the broken pads but was able to catch himself. 

Replacement pads were ordered on May 15 and were received on or about May 17. 

Other operators reported the broken pads in the operator's check list on May 

18th and before the replacements were installed, on May 19th. 

Mine Safety and Health Administration ("MSHA") Inspector Bretzel Allen 

arrived at the mine site on May 23, 1989, to investigate a complaint made by a 

representative of miners under section 103(g), 30 U.S.C. § 813(g), which 

alleged that SOCCO had been operating a D-7 Caterpillar dozer with two broken 

pads on the left track. Allen did not personally observe the violation 

because the track pads had been repl~ced before his inspection. Allen 

verified the accuracy of the compla'i;;t through discussions with SOCCO' s 

equipment operators, Jim Richards (a SOCCO foreman), and Wesley Dobbs (SOCCO's 

accident prevention officer). He also reviewed SOCCO's daily "operator's 

913 
check list," which contained the notation dated May 16, 1989, that Barnett had 

reported to mine management that two track pads on the left track of the dozer 

were broken. Allen determined that a broken pad would leave an opening 

approximately 9-1/4 inches wide by 12 inches long, based on the assumption 

that the pads normally break off at the bolts. Allen further found that 

several months earlier, on March 2, 1989, dozer operator Bill Bice, while 

exiting from a dozer cab, had stepped into a hole created by a broken pad, 

strained his back and lost one day of work. 

As a result of his investigation, Allen issued a section 104(d)(2) 

withdrawal order charging a violation of section 77.404(a). The withdrawal 

order alleged that the D-7 dozer had been operated from May 15, 1989, to May 

19, 1989, with two broken track pads, that these pads were part of a platform 

on which the machine operators walked to mount and dismount the machine, and 

that this condition had been known by Richards, the foreman in charge, and had 

been recorded in the operator's check list on May 16, 1989. Allen determined 

that the violation was significant and substantial, relying, in part, on 

Bice's March 2, 1989, accident. Allen also determined that the violation was 

the result of SOCCO's high negligence, because SOCCO's management knew that 

the pads were broken but nonetheless continued to operate the dozer. 

Before the judge, SOCCO argued that it did not violate section 77.404(a) 

because the two broken track pads did not render the dozer unsafe to operate. 

SOCCO emphasized that the primary purpose of the track pads is to provide 

traction and the dozer's traction was not affected by the two broken pads. 

SOCCO argued that section 77.404(a) did not apply to a stumbling or tripping 

hazard created by the broken pads. In challenging the withdrawal order, SOCCO 

also contested Allen's significant and substantial and unwarrantable failure 

findings. 

Judge Koutras found that SOCCO violated section 77.404(a) because the 

dozer tracks, including the pads, are an integral and functional part of the 

machine, and that the tracks were used by dozer operators to mount and 

dismount the machine and to service the machine as required. 12 FMSHRC at 

1648, 1649. He concluded that these uses could not be divorced from the 

safety requirements found in section 77.404(a). Id. He also found that the 

testimony of three of SOCCO's equipment operators, including Barnett and Bice, 

established that the broken pads on the cited dozer rendered it unsafe to 

operate, requiring its immediate removal from service. 12 FMSHRC at 1648-49. 

Judge Koutras also determined that the violation was of a significant and 

substantial nature. He credited the testimony of Inspector Allen and the 

dozer operators concerning the hazards created by broken track pads and their 

testimony about previous incidents involving broken pads. 12 FMSHRC at 1655-

56. With respect to the unwarrantable failure issue, Judge Koutras found that 

the violation was caused by SOCCO's aggravated conduct. 12 FMSHRC at 1659. 

He found that the broken pads were reported by Barnett to Richards, SOCCO's 

foreman, on May 16, 1989, that SOCCO continued to use the dozer with the 

broken pads and that the dozer was not repaired until May 19, 1989. 12 FMSHRC 

at 1658. He also relied upon the fact that SOCCO was aware of Bice's March 2, 

1989, injury and Barnett's "near mrs's." Judge Koutras concluded that, under 

such circumstances, inunediate action was necessary to fix the broken pads. 

12 FMSHRG at 1658-59. 

914 
II. 

Disposition of Issues 

On review, SOCCO contends that: (1) it did not violate section 

77.404(a); (2) the alleged violation was not significant and substantial; and 

(3) the alleged violation was not the result of SOCCO's unwarrantable failure. 

We consider each of these contentions in turn. 

A. "Whether there was a violation of section 77.404(a) 

SOCCO takes the position that "the condition of two-half broken cat or 

track pads on the D-7 dozer does not render the machine inoperable." SOCCO 

Br. at 5-6. (emphasis in original). Hence, "the machine's condition 

would not render this equipment unsafe to operate and, therefore, would not 

require SOCCO to remove it from service under 30 C.F.R. 77.404(a)." Id. at 6. 

SOCCO asserts that citing a "stumbling and tripping hazard under 30 C.F.R. 

77.404(a)," is an "inappropriate and incorrect utilization of said standard." 

Id. 

Focusing on the word "operat:lng" in the standard, SOCCO contends that, 

for section 77.404(a) to apply, the unsafe condition must render the equipment 

unsafe to operate. Since use of the tracks as a walkway does not involve the 

"operating condition" of the dozer any stumbling or tripping hazard created by 

broken pads is not within the scope of section 77.404(a). 

In the Secretary's view, substantial evidence supports the finding that 

the broken track pads created a safety hazard. Citing Ideal Cement Co., 

12 FMSHRC 2409 (November 1990), the Secretary asserts that SOCCO's use of the 

equipment in such condition created a slip and fall hazard for miners using 

the track 'walkway' when mounting to or dismounting from the operator's 

compartment, and that such hazards are within the purview of the standard. We 

agree. 

As the Commission observed in Ideal Cement "[t]he integrity of a machine 

is not defined solely by its proper functional performance but must also be 

related to the protection of miners' health and safety." 12 FMSHRC at 2414-

15. (emphasis in the original). If a machine cannot be used safely by 

miners, the machine is not in "safe operating condition." Thus, a dozer is 

not in "safe operating condition" if miners are unable to enter and exit the 

dozer's cab without risking injury. Because the dozer's tracks serve as the 

only walkway for the operator to mount and dismount the dozer and to check the 

fuel, oil, transmission fluid and water level, we conclude that the dozer's 

track pads were within the scope of section 77.404(a) and that the dozer was 

not in "safe operating condition.n In so concluding we find that a "stumbling 

and tripping hazard" is covered by the standard. 

Substantial evidence supportr:ic:_-Fhe judge's finding that the two broken 

915 
track pads presented an unsafe condition. 2 Inspector Allen testified that 

the condition was unsafe. ·Tr. 28. Dozer operator Barnett testified that 

missing track pads pose a safety risk. Tr. 67, 93-94. Barnett also testified 

that sometimes the pads are so full of mud that the pads cannot be seen. Tr. 

68. Bill Kincell, also a dozer operator, testified that a missing pad poses a 

safety risk and that when mud from the refuse area adheres to the tracks, he 

would be unaware of a broken pad unless he stepped on it or the mud fell out 

of it. Tr. 101. Dozer operator Bice testified that a broken track pad 

presents a risk or hazard. Bice also testified that sometimes it is not easy 

to see whether a track pad is broken when the dozer is covered with gob. Tr. 

134. 

We further note that Bice was injured on March 2, 1989, as a result of a 

broken track pad. Tr. 128. In response to his injury, SOCCO's safety 

department set forth a policy (not observed in this case) that dozers were not 

to be operated if a pad was broken, and that broken pads would be fixed before 

the dozer was put back into service. Tr. 61, 89, 99-100, 107, 131-32. 

Accordingly, we affirm the judge's conclusion that SOCCO violated 

section 77.404(a). 

B. Whether-the violation was significant and substantial 

We also affirm the judge's conclusion that the violation was of a 

significant and substantial nature. A violation is properly designated as 

significant and substantial "if, based on the particular facts surrounding 

that violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious 

National Gypsum Co., 3 FMSHR.C 822, 825 (April 

1981). 6 FMSHRC 1, 3-4 (January 1984), the Commission 

explained: 

In order to establish that a violation of a 

standard is significant and substantial 

under the Secretary must prove: (1) 

the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard -- that is, a 

measure of danger to safety -- contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

2 The Commission has held that equipment is "unsafe" under 30 C. F. R. 

75.1725(a), which is identical to section 77.404(a), when a "reasonably 

prudent person familiar with the factual circumstances surrounding the 

allegedly hazardous condition, including any facts peculiar to the mining 

industry, would a hazard warranting corrective action within the 

purview of the regulation." Alabama By-Products Corp., 4 FMSHRC 

2128, 2129 1982). Although the judge did not analyze this case 

using the 11 prudent person", analysis, we conclude that a reasonably 

prudent person familiar with the facLs would recognize that the broken pads 

presented an unsafe condition. 
contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), 

aff'g, 9 FMSHRC 2015, 2021 (December 1987)(approving Mathies criteria). The 

third element of the Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result in an event 

in which there is an injury" (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 

(August 1984)), and also that the likelihood of injury be evaluated in terms 

of continued normal mining operations (U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574 (July 1984); see also Halfway. Inc., 8 FMSHRC 8, 12 

(January 1986). 

At the outset, SOCCO argues that Allen did not satisfy MSHA's Program 

Policy Letter No. P89-I-3 for determining S&S violations. SOCCO raised this 

issue for the first time in its petition for review. Under the Mine Act ·and 

the Commission's regulations, "[e]xcept for good cause shown, no assignment of 

error by any party shall rely on any question of fact or law upon which the 

administrative law judge ha[s] not been afforded an opportunity to pass." 

Section 113(d)(2)(A)(iii) of the Mine Act,30 U.S.C. 823(d)(2)(A)(iii); see 

also 29 C.F.R. 2700.70(d)~ SOCCO has not proffered any reason why it did not 

present the argument before the judge. We therefore decline to consider 

whether Allen satisfied MSHA's Program Policy Letter No. P89-I-3. See Midwest 

Minerals. Inc., 12 FMSHRC 1375, 1378 (July 1990); Ozark-Mahoning Co., 

12 FMSHRC 376, 379 (March 1990). 

SOCCO also argues that the significant and substantial finding cannot 

stand because the inspector did not personally observe the alleged violation. 

In Nacco Mining Co., 9 FMSHRC 1541, 1546 (September 1987), the Commission 

found that an inspector can issue a section l04(d)(l) citation notwithstanding 

the fact that the violation was not personally observed by the inspector. A 

section 104(d)(l) citation requires, as one of its elements, that the 

violation be of a significant and substantial nature. An inspector's personal 

observation is therefore not a predicate to a significant and substantial 

finding. 

We now turn to the four elements of the Commission's significant and 

substantial analysis. With respect to the first Mathies element, we have 

concluded that the judge properly found that SOCCO violated section 77.404(a). 

The second element, that a measure of danger to safety was contributed to by 

SOCCO's violation, is also established. The hazard of tripping or falling 

through a broken pad has been amply demonstrated. The testimony of the 

inspector and the dozer operators, discussed above, confirms the hazard. 

With respect to the third Mathies element, SOCCO argues that there was 

only one injury at this mine associated with this type of alleged violation, 

which occurred three to four years earlier to Bice. The record establishes, 

however, that on March 2, 1989, Bic.e. . .,a.lso suffered a strained back when he 

stepped through a hole created by a-partially broken pad. Tr. 23, 56; Sec. 

Exh. 4-D. Bice lost one work day as a result of the accident. On May 16, 

1989, Barnett also tripped on and almost fell through one of the broken pads 

917 
but caught himself before going over the dozer. Tr. 64-65; Sec. Exh. 4-E. 

The judge determined that the partially broken pads in question 

constituted a condition that would be reasonably likely to contribute to an 

injury, and that it was reasonably likely that the injury would be one of a 

reasonably serious nature. 12 FMSHRC at 1656. We find that substantial 

evidence supports the judge's conclusions. 

In reaching those conclusions the judge relied, in part, upon the 

testimony of Inspector Allen, which he found to be credible. 12 FMSHRC at 

1655. Allen testified that the presence of caked mud could fill the hole 

created by a missing pad to the point that one would not notice that it was 

missing. Tr. 21. The inspector analogized the hazard as similar to that 

created by removing steps from a stairwell. Tr. 19. Allen referred to the 

back injury incurred by one of SOGCO's employees in just such a track pad 

incident and believed that serious injuries such as sprains, strains and 

fractures could result. Tr. 22-23. The judge also found credible, and relied 

upon, the testimony of dozer operators Bice and Barnett that a broken pad 

exposed them to hazards. 12 FMSHRC at 1656. 

With respect to the fourth Mathies element, the severity of Bice's 

recent accident provides substantial evidence to support the judge's finding. 

As previously indicated, Bice strained his back and lost one day of work. . The 

inspector also testified that strains, sprains or fractures could result if 

someone slipped or fell because of a broken pad. As stated above, the judge 

credited the inspector's testimony. 12 FMSHRC at 1655. 

we have considered other evidence in the record relied upon by SOCCO 

that mitigates the degree of danger created by the violation. we conclude, 

however, that substantial evidence supports the judge's finding that the 

violation was of a significant and substantial nature. 

C. Whether the violation was unwarrantable failure 

In Emery Mining Corporation, 9 FMSHRC 1997, 2004 (December 1987) and 

Youghiogheny & Ohio Goal Company, 9 FMSHRC 2007, 2010 (December 1987), this 

Commission held that "unwarrantable failure means aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in relation to 

a violation of the Act." The Commission stated that while negligence is 

conduct that is "inadvertent," "thoughtless," or "inattentive," conduct 

constituting an unwarrantable failure is conduct that is "not justifiable" or 

"inexcusable." Emecy, supra, 9 FMSHRC at 2001. 

SOCGO argues that it had a good faith belief that it was not prohibited 

from using the dozer and that it attempted to replace the cat pads without 

undue delay. We reject SOCCO's arguments. 

SOCCO's first argument is premised on the ground that an ambiguity in 

the regulation justifies its conduct. However, we conclude that a reasonably 

prudent person familiar with the mining industry and the protective purposes 

of the standard would have recognized the specific requirement of the 

standard. See Ideal Cement Co., supra, 12 FMSHRC at 2416; n.2, supra. 

918 
The Commission has recognized that if an operator reasonably believes in 

good faith that the cited conduct is the safest method of compliance with 

applicable regulations, even if it is in error, such conduct is not aggravated 

conduct constituting more than ordinary negligence. Utah Power and Light 

Company, 12 FMSHRC 965, 972 (May 1990); Florence Mining Co., 11 FMSHRC 747, 

752-54 (May 1989); Helen Mining Co., 10 FMSHRC 1672, 1675-77 (December 1988); 

Southern Ohio Coal Co., 10 FMSHRC 138, 142-43 (February 1988). SOCCO's 

actions here, however, do not manifest safety consciousness. To the contrary, 

SOCCO knowingly permitted the dozer to continue operating from May 15, 1989, 3 

to May 19, 1989, with the two broken pads, even though it knew that, in 

addition to an earlier accident, there had been one recent accident caused by 

broken pads on March 2, 1989, and one close call on May 16, 1989. 

We find that substantial evidence supports the judge's unwarrantable 

failure finding and that the violation was the result of SOCCO's aggravated 

conduct. SOCCO knew of the two defective cat pads on May 15, 1989. The 

record also shows that five reports ("operator's check lists"), dated May 15 

through May 19, 1989, made by at least three different operators, advised 

SOCCO that the pads were broken. SOCCO also knew of Bice's March 2, 1989, 

injury caused by a broken pad and Barnett's May 16, 1989, near miss. 

Replacement pads were received on o_:i;:about May 17, 1989. Nevertheless, SOCCO 

continued to operate the dozer with knowledge of the two broken pads through 

the day shift on May 19. 

Finally, the record establishes that replacement of the broken pads was 

not a complicated or time consuming operation. Tr. 72, 104-05. A mechanic 

could change a pad in three-quarters of an hour. Tr. 72, 104-05. SOCCO's 

witness Ware stated "[a]nybody can bolt on a track pad" and that "[t]here is 

nothing to it." Tr. 203. We therefore reject SOCCO's argument that it 

attempted to replace the track pads without undue delay. 

3 The judge found that Barnett reported the broken pads to his foreman, 

Richards, on May 16, 1989. 12 FMSHRC 1658. However, SOCCO acknowledges that 

it knew about the broken pads on or about May 15, 1989, and the record 

establishes that the broken pads were reported in the "operator's checklist" 

for the afternoon shift on May 15. ,.socco PDR at 8; SOCCO Br. on Rev. at 9; 

SOCCO Post H. Br. at 5; Sec. Exh. 1~ (SOCCO's Answer to Interrogatory ll(a)); 

Sec. Exh. 4E. 

919 
III. 

Conclusion 

Accordingly, the judge's decision rs affirmed. 

J 

Arlene Holen, Commissioner 

L. Clair Nelson, Commissioner 

Distribution 

Rebecca J, Zuleski, Esq. 

Furbee, Amos, Webb & Critchfield 

5000 Hampton Center, Suite 4 

Morgantown, West Virginia 26505 

Eva Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. , Suite 400 

Arlington, VA 22203 

Administrative Law Judge George A. Koutras 

Federal Mine Safety & Health Review Commission 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

920 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 4 1991 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 89-72-D 

ON BEHALF OF MSHA Case No. NORT CD-89-18 

AMOS HICKS, 

Complainant 

v. 

COBRA MINING, INC., 

JERRY K. LESTER and 

CARTER MESSER, 

Respondents 

DECISION ON REMAND 

Before: Judge Weisberger 

In a decision in this matter, (Amos Hicks v. Cobra Mining, 

Inc., Docket No. VA 89-72-D, 13 FMSHRC I April 1, 1991), 

the Commission, pursuant to Complainant's petition for 

discretionary review, vacated and remanded my decision which had 

been issued March 22, 1990. The bases for the Commission's 

decision are set forth in its analysis of two issues presented in 

this case i.e., the timing of Complainant's (Hick's) complaints, 

and Respondent's affirmative defense. 

I. The Timing of Hick's Complaints. 

On remand, the Commission directed me to reconsider all 

areas of Hick's complaints as motivating factors in his 

discharge. The Commission further directed me to reconsider this 

issue in light of the principles expressed in Secretary o.b.o. 

Chacon v. Phelps Dodge corp., 3 FMSHRC 2508, 2510, (November 

1981), rev.don other grounds sub !1Q!!l· Donovan v. Phelps Dodge 

Corp., 709 F.2d 86 (D.C. Cir. 1983), and Donovan v. Stafford 

Construction Co., 732 F.2d 954 (D.C. Cir. 1984). 

In Chacon, the Commission listed various indicia of 

discriminatory intent including "coincidence in time between the 

protected activity and the adverse action" (3 FMSHRC 2510). In 

this connection, the D.C. Circuit Court of Appeals in Stafford, 

supra, took notice of the fact that 2 weeks had elapsed between 
the alleged protected activity and the adverse action and held 

that "[T]he fact that the company's adverse action against [the 

miner] so closely followed the protected activity is itself 

evidence of an illicit motive." (732 F.2d at 960). 

Upon reconsideration I find, for the reasons previously 

stated in my initial decision, that a week before his discharge, 

Hicks had complained to Sutherland about the failure to use 

safety jacks. I do not accept Hick's testimony that he 

complained to Sutherland about loose rock 2 days before he was 

fired. As stated in my previous decision, neither Ray nor 

Lester, who rode the mantrip along with Hicks, corroborated his 

testimony that he had made a complaint about the loose rocks 

2 days before he was fired. Both Hicks and Sutherland 

essentially indicated that an incident had occurred when Hicks, 

who had complained to Sutherland about loose rock, was told by 

the latter to get off a mantrip and pull the rock down. Hicks 

did not specifically indicate when this occurred, but Sutherland 

said in essence that it was about a month before Hicks was fired. 

I conclude that the firing oJHicks occurred approximately a 

month after he complained to Sutherland about loose rock. 

Hicks indicated on direct examination that he complained 

about improper ventilation a week before he was fired. I do not 

accord much weight to this testimony because, upon crossexamination, it was elicited that in his responses to 

interrogatories taken on October 16, he did not say that he had 

made such complaints a week before he was fired. Also, although 

Ray indicated she heard Hicks complain about ventilation to 

Sutherland a couple of times, she did not pinpoint when these 

complaints were made. 

The Commission further indicated that an error was made in 

assessing Complainant's prima facie case by adhering to "" " Q an 

overly restrictive time frame in deciding whether certain of 

Hicks' complaints were 'within close proximity to his 

discharge."' (13 FMSHRC, supra, slip op., at 9). In addition, 

the Commission found error in assessing complaints about safety 

jacks, loose rock, ventilation, and riding in the scoop bucket, 

isolation with regard to proximity in time between 

complaint and the adverse action and that "under the 

circumstances, it would have been appropriate to consider 

complaints as a whole in order to establish whether a pattern 

protected conduct existed that might have provided suf 

motivation for the May 11, 1989, discharge." (13 FMSHRC, 

slip op., at 9). 

Being guided by the Commission's directives, I note that 

Hick's complaints about jacks were made a week before his 

discharge, and complaints about loose rock were made 

approximately a month before the discharge. Further, Sutherland 

indicated that Hicks had complained about rocks one or two times, 

922 
and Ray indicated that he had made complaints 2 to 3 times a 

week. Payne indicated that Hicks made such complaints "several 

times" (Tr. 140). Ray in corroborating the testimony of Hicks 

that he had complained about ventilation problems to Sutherland, 

indicated that he made such complaints "a couple of times" (Tr. 

204). In this connection, further, it is significant to note 

that with regard to complaints about the safety of riding in the 

scoop, Hicks indicated that he made such complaints whenever he 

rode the scoop, which was up to five times a week, and indicated 

that he complained on a "consistent" basis (Tr. 201). Ray 

indicated that she heard Hicks making these complaints to 

Sutherland more than just a couple of times. Sutherland 

acknowledged Hick's complaints in this regard, and did not rebut 

the testimony of Hicks and Ray with regard to the numerous times 

these complaints were made. 

Hence, upon reconsideration, I take into account the 

totality of the circumstances presented herein, i.e., the fact 

that complaints were made about jacks a week before Hicks was 

fired, the fact that complaints were made about loose rock about 

a month before complainant was·fired, and the fact that numerous 

complaints were made aoout the loose rock, ventilation, and the 

riding in the scoop bucket. I find that due to the proximity of 

complaints to the adverse action, and the repetitive nature of 

these complaints, there was a pattern of protected conduct that 

did establish that the firing of complainant was motivated in 

some part, by the safety complaints that he had made. 

II. Respondent's Affirmative Defense 

In its decision, the Commission directed that an evaluation 

of Respondent's affirmative defense be made in terms of the 

criteria set forth in Bradley v, Belva Coal Co., 4 FMSHRC 982 

(June 1983)p and Secretary o.b.o. John Cooley v. Ottawa Silica 

Corpo, 6 FMSHRC 516. 

In Bradley, supra, the Commission set forth general 

principles for evaluating an operator's affirmative defense, and 

indicated that proof that the operator would have disciplined the 

miner in any event but for the unprotected activity alone, can be 

established by showing "past discipline consistent with that 

meted out to the alleged discriminatee, the miner's 

unsatisfactory past work record, prior warnings to the miner or 

personnel rules or practices forbidding the conduct in question." 

(4 FMSHRC at 993). 

The Commission in its decision (13 FMSHRC, supra, slip op., 

at 10), referred to certain factors set forth in Cooley for 

determining whether the use of profanity "in and of itself," was 

grounds for dismissal as follows: "Had there been previous 

disputes with the miner involving profanity? Had anyone ever 

been discharged or otherwise disciplined for profanity? Was 

923 
there a company policy prohibiting swearing, either generally or 

at a supervisor?" 

In its decision, the Commission, in indicating that it was 

unable to determine "at. this state," whether substantial evidence 

supports my initial conclusion that Hick's use of profanity 

warranted discharge in any event, commented as follows: "This is 

particularly true in view of the testimony as to widespread use 

of profanity in Cobra's No. 1 Mine, management's general 

tolerance of that profanity, and the lack of discipline meted out 

to Hicks for an earlier incident of profanity .... " 

(13 FMSHRC; supra, slip op., at 11). 

Upon reconsideration, considering these comments by the 

Commission, I give considerable weight to the fact that the 

record herein contains corroborated testimony that swearing was a 

common occurrence, and that some of it was directed at 

supervisors. Further, I note that the record does not indicate 

that there was any published oral or written policy prohibiting 

swearing either in general or directed to a supervisor. Also, I 

take cognizance of the fact that Sutherland indicated that in a 

prior incident Hicks ~directed an obscene comment to him, and he 

"shrugged it off" (Tr. 272). 

The Commission further directed me to resolve the 

conflicting testimonies of Hicks, Douglas Lester and Sutherland 

with regard to whether the use of profanity by Hicks occurred in 

the process of defying Sutherland's order to return to work as 

Sutherland testified, or whether it was made after he had already 

boarded his shuttle car and had started back to the face as Hicks 

and Lester testified. I find the version testified to by Hicks 

to be credible in light of the fact that it was corroborated by 

Lester. 

Commission, (13 FMSHRC, supra, Slip op., at 10), 

indicated that my original finding that complainant's discharge 

for use of profanity was not pretextual because Sutherland had 

previously fired Ray for swearing, "needs to be explained 

further." The Commission elaborated as follows: "First, the 

record discloses that Ray's discharge was quickly rescinded on 

the instructions of Payne. Second, the Ray incident could also 

be viewed as an aberration rather than as a precedent in support 

of the adverse action taken against Hicks. Given the context of 

wide spread use of profanity in the No. 1 Mine, the severe 

disciplinary action taken against both Ray and Hicks could be 

viewed as disparate treatment insofar as swearing was neither 

prohibited nor, apparently, discouraged." 

In light of the Commission's concerns, and its evaluation of 

the record, I am constrained to conclude, upon reconsideration, 

that reliance upon Ray's discharge for swearing as evidence that 

complainant's discharge was not pretextual, is unwarranted given 

924 
the fact that Ray's discharge was rescinded and given evidence of 

widespread use of profanity in the mine at question. Hence, upon 

reconsideration, and addressing myself to the concerns raised by 

the Commission in its decision, I conclude that respondent has 

not established that it would have dismissed Hicks based on the 

unprotected activity i.e., swearing, alone. Hence, I conclude 

that respondent has not-rebutted complainant's prima facie case. 

ORDER 

1. Complainant shall file a statement within 20 days of 

this Decision indicating the specific relief requested. This 

statement shall show the amount he claims as back pay, if any, 

and interest to be calculated in accordance with the formula in 

Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984). The 

statement shall also show the amount he requests for attorney's 

fees and necessary legal expenses if any. The statements shall 

be served on Respondent who shall have 20 days from the date 

service is attempted to reply thereto. 

2. This.decision_is not 'final Until a further order is 

issued with respect to Complainant's relief and the amount of 

Complainant's entitlement to back pay and attorney's fees. 

£\~ Avram Weisberger 

Administrative Law Judge 

Distribution: 

Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of 

Labor 9 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Kurt J. Pomrenke, Esq., White, Elliott & Bundy, P.O. Box 8400, 

Bristol, VA 24203-8400 (Certified Mail) 

/fb 

925 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 4 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-47 

A. C. No. 46-01455-03812 

Osage No. 3 Mine 

Appearances: Page H. Jackson, Esq., Office of the Solicitor, 

U. s. Department of Labor, Arlington, Virginia, 

for the Secretary of Labor {Secretary) ; 

Walter J. Scheller III, Esq., Pittsburgh, 

Pennsylvania, for Consolidation Coal Company, 

{Consol) . 

Before: Judge Broderick 

The above case was called for hearing in Morgantown, 

West Virginia, on April 17, 1991. Counsel for the Secretary 

proposed on the record that a settlement be approved for one of 

the two violations alleged in this docket, namely a violation of 

30 C.F.R. § 75.1105 alleged in Order No. 2711965. The settlement 

provided that Consol would pay the full amount of the assessment, 

$1,000. 

A hearing was had on the other violation, that charged in 

Order No. 2712041. This order alleged a violation of 30 C.F.R. 

§ 75.303 because of an inadequate preshift examination. The 

order charged that the violation resulted from Consol's 

unwarrantable failure to comply with the mandatory standard. 

Inspector Richard Jones testified on behalf of the Secretary. 

Todd McNayer and Richard Conrad testified on behalf of Consol. 

After the parties rested and the case was submitted for 

decision, the Secretary filed a motion to approve a settlement 

with respect to the violation involved. The motion proposes an 

order modifying the 104{d) (2) Order to a 104{a) Citation, °'and the 

payment by Consol of the penalty originally proposed, $1,200. 

926 
The motion states that the Secretary agrees to drop the 

unwarrantable failure finding because the evidence introduced at 

trial did not clearly establish that the violation resulted from 

aggravated conduct constituting more than ordinary negligence. 

I have considered the motion in the light of the evidence 

introduced at the trial and the criteria in Section llO(i) of the 

Act, and conclude that it should be approved. 

Accordingly, IT IS ORDERED: 

1. Order No. 2712041 issued under Section 104(d) (2) of the 

Act is MODIFIED to a 104(a) Citation. 

2. Consol shall, within 30 days of the date of this 

Decision, pay the following civil penalties: 

CITATION/ORDER 

2711965 

2712041 

Distribution: 

30 C.F.R. AMOUNT 

75.1105 $1,000 

75.303 1,200 

Total $2,200 

i' 'l ' 

:,AA' J'.-!1 /q.f:.fv?XU,t/l£({__ J ·' •·. I ' / 

James A. Broderick 

Administrative Law Judge 

Page Ho Jackson, Esq., Office of the Solicitor, U. s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 14241~1421 (Certified 

Mail) 

dcp 

927 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 5 1991 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SUNNY RIDGE MINING COMPANY, 

INC., 

Respondent 

Docket No. KENT 91-1 

A. C. No. 15-16151-03507 

No. 1 surface Mine 

DECISION 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for the Secretary of Labor; 

Reed D. Anderson, Esq., Pikeville, Kentucky, for 

Respondent Sunny Ridge Mining Company, Inc., 

(Sunny· Ridge). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The secretary seeks a civil penalty for an alleged violation 

of 30 C.F.R. § 48.26(a) because 11 miners had not received newly 

employed experienced miner training. The citation charging the 

vid.tation was issued in conjunction with a 104(g) withdrawal 

order directing the employees to be removed from the mine site 

until the training is provided. 

Pursuant to notice; the case was called for hearing in 

Prestonsburg, Kentucky, on April 9, 1991. Federal Mine Inspector 

Prentiss o. Potter testified on behalf of the Secretary. Hobert 

Potter, co-owner of Sunny Ridge was called for cross-examination 

by the Secretary and testified on behalf of Sunny Ridge. Both 

parties were given the opportunity to file post-hearing briefs. 

Sunny Ridge filed a brief; the Secretary did not. I have 

considered the entire record and the contentions of the parties 

in making the following decision. 

928 
FINDINGS OF FACT 

I 

Sunny Ridge was at all pertinent times the owner and 

operator of a surface coal mine in Pike County, Kentucky, known 

as the No. 1 surface Mine. The mining method followed at the 

subject mine was mountain top removal. Explosives were used to 

loosen the coal and the overburden, and it was removed using 

bulldozers and end loaders. As of September 6, 1990, Sunny Ridge 

produced approximately 214,121 tons of coal annually. It was 

therefore of moderate size•· During the 24 month period from 

August 28, 1987 to August 27, 1989, 14 violations were assessed 

and paid by sunny Ridge. Eight of these were violations of the 

regulations having to do with miner training. Because of the 

number of training regulation violations, this history is such 

that a penalty otherwise appropriate will be increased because of 

it. 

II 

On August 28, 198~, Federal Coal Mine Inspector Prentiss 

Potter issued a citation charging a violation of 30 C.F.R. 

§ 48.26(a) because 11 of the 17 miners at the mine site had not 

received the newly employed experienced miner training required 

by the regulation. The citation charged a significant and 

substantial violation •.. ~he inspector also issued an order of 

withdrawal under Section 104(g) ordering the named miners to be 

removed from the mine site until provided with the required 

training. Sunny Ridge had a training plan in effect and a 

designated MSHA approved instructor. The plan showed an 8 hour 

course of training for newly employed experienced surface miners. 

I find as a fact that the 11 miners named in the citation 

were newly employed experienced miners, and had not received the 

tra~ning prescribed in the regulation and in Sunny Ridge 1 s plan. 

The citation and order were terminated on August 29, 1989, when 

the listed employees received the newly employed experienced 

miner training by an MSHA approved instructor. 

REGULATION 

30 C.F.R. § 48.26(a) provides as follows~ 

(a) A newly employed experienced miner shall receive 

and complete training in the program of instruction 

prescribed in this section before such min.er is 

assigned to work duties. 

(b) The training program for newly employed 

experienced miners shall include the following: 

929 
(1) Introduction to work environment. The 

course shall include a visit and tour of the 

mine. The methods of mining or operations 

·Utilized at the mine shall be observed and 

explained. 

(2) Mandatory health and safety standards. 

The course shall include the mandatory health 

and safety standards pertinent to the tasks 

to be assigned. 

{3) Authoritv and responsibility of 

supervisors and miners• representatives. The 

course shall include a review and description 

of the line of authority of supervisors and 

miners• representatives and the 

responsibilities of such supervisors and 

miners' representatives; and an introduction 

to the operator's rules and the procedures 

for reporting hazards. 

(4) Transportation controls and 

communication systems. The course shall 

include instruction on the procedures in 

effect for riding on and in mine conveyances; 

the controls for the transportation of miners 

and materials; and the use of the mine 

communication systems, warning signals, and 

directional signs. 

(5) Escape and emergency evacuation plans; 

firewarning and firefighting. The course 

shall include a review of the mine escape 

system1 escape and emergency evacuation plans 

in effect at the mine; and instruction in the 

f irewarning signals and firefighting 

procedures. 

(6) Ground controls; working in areas of 

highwalls, water hazards, pits, and spoil 

banks; illumination and night work. The 

course shall include, where applicable, an 

introduction to and instruction on the 

highwall and ground control plans in effect 

at the mine; procedures for working safely in 

areas of highwalls, water hazards, pits, and 

spoil banks, the illumination of work areas, 

and safe work procedures for miners during 

hours of darkness. 

930 
ISSUES 

(7) Hazard recognition. The course shall 

include the recognition and avoidance of 

hazards present in the mine, particularly any 

hazards related to explosives where 

explosives are used or stored at the mine. 

(8) Such other courses as may be required by 

the District Manager based on circumstances 

and conditions at the mine. 

1. Whether the evidence establishes a violation of the 

cited standard? 

2. If so, what is the appropriate penalty? 

CONCLUSIONS OF LAW 

I 

Respondent is subject to the provisions of the mine act in 

the operation of the subject mine, and I have jurisdiction over 

the parties and subject matter of this proceeding. 

II 

The operator does not seriously contest the violation 

charged. The evidence clearly establishes that the listed miners 

did not receive the prescribed training. I conclude that a 

violation of 30 C.F.R. § 48.26(a) was shown. 

III 

Failure to provide the training prescribed by the 

regulations isu in my viewu a serious violation. However, the 

evidence presented in this case does not establish that the 

hazard contributed to by the violation is reasonably likely to 

result in a serious injury. Mathies Coal Co., 6 FMSHRC 1 (1984); 

United States Steel Mining Company, Inc.p 7 FMSHRC 1125 (1985)" 

The miners here were experienced" The mine environment is, 

according to the evidence, not particularly dangerous or 

threateningo I conclude that the finding in the citation that 

the violation was significant and substantial is not supported by 

the evidence. 

Sunny Ridge had been cited on a number of prior occasions 

for training regulation violations. Seventeen miners were on the 

job site; six had received tha.·required training; 11 had not. 

These facts indicate that the violation resulted from a high 

degree of carelessness on sunny Ridge's part. 

931 
The citation was abated promptly and in good faith. 

Respondent stipulates that the proposed penalty will not affect 

the ability of sunny Ridge to continue in business. 

Based on the criteria in Section llO(i} of the Act, I 

conclude that an appropriate penalty for the violation is $2200. 

This amounts to a basic penalty of $100 for each miner not 

properly trained, which I increased to $200 because of the 

history of similar violations. 

ORDER 

Based on the, above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation 3364393 is MODIFIED to a nonsignificant and 

substantial violation and, as modified, is AFFIRMED. 

2. sunny Ridge shall, within 30 days of the date of this 

Decision, pay to the Secretary a civil penalty in the amount of 

$2200 for the violation found····herein. 

Distribution: 

.., -

' 11_, ! l'Li4? /fl-13(/{}~ / James A. Broderick 

Administrative Law Judge 

Anne T. Knauff, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Reed Do Anderson, Esqo, Harris & Anderson, 230 College Street, 

P, O, Box 279 1 Pikeville, KY 41502 (Certified Mail) 

dcp 

932 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

Respondent 

5 1991 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 90-188 

A. C. No. 36-02402-03805 

Greenwich Collieries 

Appearances: Thomas Brown, Esq., U. S. Department of Labor, 

Office of the Solicitor, Philadelphia, 

Pennsylvania, for the Secretary of Labor 

(Secretary); 

Joseph A. Yuhas, Esq., Ebensburg, Pennsylvania, 

for Rochef;ter & Pittsburgh Coal Company (R&P). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In this proceeding, the Secretary seeks civil penalties for 

four alleged violations of mandatory health and safety standards. 

on November 26, 1990, the Secretary filed a motion to approve a 

pa:f'tial settlement with respect to three of the citations. The 

first involved a violation of 30 C.F.R. § 75.1704 because two air 

lock doors were permitted to remain open. A penalty of $247 was 

originally assessed. The parties proposed a reduction to $125 

because further investigation revealed that miners had 

coincidentally moved equipment through the area, using the two 

doors. The violation was inadvertent and had not existed for a 

significant period of time. The parties agreed further to delete 

the significant and substantial finding. 

The other two citations involved violations of 30 C.F.R. 

§ 75.1107-l(a) (3) because two items of electrical equipment were 

left unattended within 2 feet of the coal rib.- They were 

originally assessed at $112 each. The parties requested a 

reduction to $50 each because the likelihood of a fire was found 

to be less than originally believed. The parties also agreed to 

delete the significant and substantial findings. I stated on the 

record that I approved the motion. 

933 
The case involving the remaining alleged violation was 

called for hearing in Johnstown, Pennsylvania, on March 7, 1991. 

Samuel Brunatti testified on behalf of the Secretary. William 

Shaner and Dennis Homady testified on behalf of R&P. I granted 

the Secretary's motion to permit the submission of a posthearing 

deposition of Anthony Turran. However, the deposition was not 

filed and is not a part of this record. Both parties have filed 

Posthearing Briefs. I have considered the entire record and the 

contentions of the parties in making the following decision. 

FINDINGS OF FACT 

1. Rochester & Pittsburgh is the owner and operator of an 

underground coal mine in Cambria County, Pennsylvania, known as 

Greenwich Collieries No. 2 Mine. 

2o The mine produces more than one million, five hundred 

thousand tons of coal annually. Rochester & Pittsburgh produces 

more than 8 million tons annually. It is a large operator. 

3. In the 24 months pri.or to the citations involved in this 

proceeding, the mine had 958 violations in 1,293 inspection days; 

42 of the violations were of 30 C.F.R. § 75.1704. This history 

shows approximately .75 violations of all standards per 

inspection day, and 1.25 violations each month of the standard 

involved in this case. I consider this an unfavorable history of 

prior violations, and will increase any penalty assessed herein 

because of it. ·· 

4. Rochester & Pittsburgh demonstrated good faith in 

attempting to achieve rapid compliance after the citation was 

issued. 

5o Federal Coal Mine Inspector Samuel Brunatti conducted a 

Section 103(i) spot inspection of the subject mine on May 1, 

199~" He found that the alternate escapeway track entry for the 

MllK Section of the subject mine was not being maintained so as 

to permit miners to escape quickly to the surface in the event of 

an emergency, in that the clearance from supply cars to rib in 

several locations was 3 feet, 5 feet and 4.5 feet. He issued a 

citation charging a violation of 30 C.F.R. § 75.17040 The 

original citation stated that "these areas are to be maintained 

at a width of at least 6 feet." (G. Ex 2, p. 1). The citation 

was modified on May 1, 1990, to delete references to the 

reduction in width and to the requirement that a 6 foot width be 

maintained. (G. Ex. 2, p. 4). 

6. From the end of the track outby for a-distance of 

approximately 200 feet, supply cars were parked along the track. 

The width of the entry from the supply cars to the rib varied 

from 3 feet to 6 feet: at some points it was 3 feet, at some 

4 feet, 4-1/2 feet, 5 feet, and 6 feet depending on the rib, 

934 
which was not regular. These distances were measured by 

Inspector Brunatti. ~he inspector was uncertain as to the extent 

of the narrowed areas. He stated that the area of the 3 feet 

width extended only 4 or 5 feet (Tr. 30), but that he would "be 

guessing" at the other narrowed areas because of the irregularity 

of the rib. (id.) The cars were 2-1/2 feet to 3 feet high but, 

when loaded, could with their contents reach the roof. 

7. There is a dispute as to the height of the entry. 

Inspector Brunatti testified that it was approximately 

4 or 4-1/2 feet. William Shaner, UMWA Representative on the Mine 

Accident and Violation Reduction Program, estimated the height of 

the entry to be "over five foot. 11 (Tr. 51.) The mine safety 

inspector for R&P, Dennis Homady testified that the average 

height of the coal seam varied from 48 inches to 60 inches, but 

that the track entries were cut slightly higher than average. 

The entry height was not measured at the time the citation was 

issued or afterwards. The entry no longer exists. Inspector 

Brunatti is 6 feet, 1 inch, or 6 feet, 2 inches tall. He weighs 

about 280 or 290 pounds. He testified that he walked through the 

cited area bent over at about.~ 45 degree angle. Shaner is 

approximately 5 feet, ~ inches tall. He testified that he had to 

bend his head to walk in the entry. Considering all the 

testimony, I find that average height of the cited portion of the 

entry was approximately 5 feet. 

8. The stretchers .used at the subject mine were 18 inches 

to 22 inches wide. These were measured by Inspector Brunatti 

after he issued the citation. The stretchers are 7 feet long. 

9. Respondent conducted a test on March 5, 1991, in an 

underground area of the mine where the entry height ranged from 

5 feet, 8 inches to 6-1/2 feet, and the distance from supply cars 

to ribs ranged from 34 inches to 6 feet, for a distance of 

approximately 150 feet. Four people were carrying another person 

ans~ stretcher and experienced no delays in carrying the 

stretcher through the area. The stretcher was 20-1/2 inches wide 

and 7 feet long. 

REGULATION 

30 C.F.R. § 75.1704 provides in part as follows: 

. . . at least two separate and distinct 

travelable passageways which are maintained 

to insure passage at all times of any person, 

including disabled persons, and whicq are to 

be designated as escapeways . . • shall be 

provided from each working section continuous 

to the surf ace escape drift opening or 

continuous to the escape shaft or slope 

facilities to the surface, and shall be 

935 
ISSUES 

maintained in safe condition and properly 

marked •••• Escape facilities approved by 

the Secretary or his authorized 

representative, properly maintained and 

frequently tested, shall be present at or in 

each escape shaft or slope to allow all 

persons, including disabled persons, to 

escape quickly to the surface in the event of 

an emergency. 

1. Whether the standard requires that the entire escapeway 

be maintained so as to allow all persons, including disabled 

persons, to escape quickly to the surface in the event of an 

emergency? 

2. Whether the escapeway involved in this proceeding was 

maintained in accordance with the standard? 

3. If a violation is established by the evidence, what is 

the appropriate penalty? 

CONCLUSIONS OF LAW 

I 

Rochester & Pittsburgh is subject to the provisions of the 

Mine Act in the operation of the subject mine, and I have 

jurisdiction over the parties and subject matter of this 

proceeding. 

II 

The standard in question requires in its first sentence that 

designated escapeways be maintained to insure passage of any 

person including a disabled person. The third sentence provides 

that escape facilities, approved by the Secretary and properly 

maintained and frequently tested, from the shaft or slope to the 

surf ace shall be present to allow all persons including disabled 

persons to escape quickly to the surface in case of an emergency, 

The secretary argues that "escape facilities" include the entire 

escapeway from the working section to the surface, and therefore 

the adverb nquickly" must be taken to modify the phrase "to 

insure passage" used in the first sentence of Section 75.1704. 

The wording of the standard will not permit such a construction. 

The third sentence obviously refers to mechanical facilities, 

such as elevators, lifts, etc., designed to bring miners to the 

surfaceo See Utah Power & Liaht Company, 11 FMSHRC 1926, 1930 

(1989) 0 

936 
The question remains, however, whether on May 1, 1990, the 

alternate escapeway track entry was being maintained so as to 

insure passage of a disabled person in case of an emergency. The 

travelable passageway between the supply cars and the rib was 

from 3 to 6 feet wide. The stretchers were from 18 inches to 

22 inches wide. Thus, there was a minimum clearance of 

14 inches, or 7 inches on each side. Inspector Brunatti has had 

experience evacuating people on a stretcher from an underground 

mine. He testified that if a disabled person were evacuated 

through the passageway involved herein it would be necessary to 

put the stretcher down and readjust it in the narrowed areas, and 

valuable time might be lost in an emergency. He stated that the 

height of the entry would dictate that four persons would be 

necessary to carry a disabled person on a stretcher, because the 

carriers would have to carry the stretcher while bent over. 

Inspector Brunatti conceded that the 3 foot wide area was 

"passable" by four people carrying a disable person on a 

stretcher, but 11 they 1 d have to probably set the stretcher down or 

shift around, come to a complete stop and maybe get an individual 

on each end to shift the stretcher through." (Tr. 45.) 

The height of th~ passageway in the entry where R&P 

simulated a rescue was significantly higher (5 feet, 8 inches to 

6-1/2 feet), although of approximately the same width as the 

cited area. For this reason, I discount the testimony that the 

rescuers experienced no difficulty or delay in transporting a 

person on a stretcher. 

Inspector Brunatti's testimony must also be discounted 

because he significantly understated the height of the escapeway, 

and relied on the reduced height in concluding that rescuers 

would have difficulty in transporting a disabled person on a 

stretcher. He also relied on the MSHA policy that escapeways 

must be maintained at a width of at least 6 feet. Finally, he 

conceded that the areas involved were passable, but not rapidly 

(Tr o 4 6) o 

I conclude that the weight of the evidence does not 

establish that the cited escapeway was not maintained to insure 

passage at all time of any personu including a disabled person. 

ORDER 

Based on the above findings of fact and conclusions of law, 

and relying on the motion to approve a partial settlement, IT IS 

ORDERED: 

1. Citation Nos. 3302406, 3302407, and 3302408 are MODIFIED 

to delete the findings that tr9 violations are significant and 

substantial, and as modified, are AFFIRMED. 

2. Citation No. 2892777 is VACATED. 

937 
3. Rochester & Pittsburgh shall, within 30 days of the date 

of this decision, pay the following civil penalties: 

CITATION 

3302406 

3302407 

3302408 

Distribution: 

30 C.F.R. 

75.1704 

75.1107-1.(a) (3) 

75.1107-l(a) (3) 

AMOUNT 

$125 

50 

50 

Total $225 

..., , . I / ' ' I (iA/IA~f:~{, ./J--!J YJ/{f_C:,'t,1-t/... 

) James A. Broderick 

• Administrative Law Judge 

Thomas A. Brown, Jr./ Esq., Office of the Solicitor, u. s. 

Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Joseph Yuhas, Esq., Rochester & Pittsburgh Coal Company, 

P. o. Box 367, Ebensburg, PA 15931 (Certified Mail) 

dcp 

938 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 6 1991 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-168-M 

A.C. No. 24-01841-05507 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

NEW BUTTE MINING INCORPORATED, 

Respondent 

: 

: 

: 

. . 

: 

. . 

. • 

. . DECISION 

Lexington Mine 

Appearances: Susan J. Eckert·1 Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

Before: 

for Petitioner1 

Mr. David w. Kneebone, Esq., Consultant, New Butte 

Mining, Butte, Montana, 

for Respondent. 

Judge Morris 

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

Health Administration CMSHA), charges Respondent, New Butte Mining, Incorporated C"New Butte") with violating a safety regulation promulgated under the Federal Mine Safety and Health Act, 30 

UoSoCo § 801 et seq., (the "Act") o 

A hearing on the merits was held in Butte, Montana, on 

April 23, 1991. 

The parties filed post-trial briefs. 

STIPULATION 

At the commencement of the hearing the parties filed a written stipulation providing as follows: 

lo New Butte is engaged in the mining of gold in the United 

States, and its mining operations affect interstate commerce. 

2. New Butte is the owner and operator of the Lexington 

Mine, MSHA I.D. No. 24-01841. 

3. New Butte is subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. §§ 801, et~ 

(the "Act"). 

9 39 
4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations were properly served by a duly 

authorized representative of the Secretary upon an agent of 

respondent on the date and place stated therein, and may be 

admitted into evidence for the purpose of establishing their 

issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by respondent and the Secretary are stipulated to be authentic but no stipulation is made as 

to their relevance or the truth of the matters asserted therein. 

7. The proposed penalty will not affect respondent's ability to continue in business. 

8. The operator demonstrated good faith in abating the 

violation. 

9. New Butte i~ a small. operator of a gold mine with 

106,950 control hours in 1989. 

10. The certified'copy of the MSHA Assessed Violations History accurately reflects the history of this mine for the two 

years prior to the date of the citations. 

11. On June 27, 1989, David Kneebone contacted Darrel Woodbeck, MSHA inspector, to report the accident. After that, Darrel 

Woodbeck contacted Jack Petty, former MSHA Assistant District Director, who directed Darrel Woodbeck and Siebert Smith to investigate the company because of the accident. 

THE EVIDENCE 

On June 27 0 1989u Darrell Woodbeck, an MSHA inspector experienced in mining, issued Citation No. 2650622. The citation alleged a violation of 30 C.F.R. § 57.1101. On the same date, in a 

subsequent modification, the citation was modified to allege a 

violation of 30 C&FeRo § 57-110080 1 (Exhibit P-2)o 

1 The cited regulation provides as follows: 

§ 57.11008. Restricted clearance. 

Where restricted clearance creates a hazard to 

persons, the restricted clearance shall be conspicuously marked. 

940 
The uncontroverted evidence shows that on June 26, 1989u 

miner Rick A. Walter was swamping 2 for Dana Lentz, the assigned 

motorman. The two miners in this conventional stope mine were 

joined by miner Conda Sluga. The men were spotting ore cars under the #3 chute. In the process, a one·-inch air hose had become 

entangled in the rail cars. Messrs. Sluga and Walter proceeded 

to untangle the hose. In the process, Mr. Walter and the train 

moved slowly backwards. Mr. Walter backed into the rib. At that 

point, he was pinched by the ore car and sustained injuries to 

his neck, chest, and back. Mr. Lentz saw that something was 

wrong and he immediately pulled the train forward. Mr. Walter 

was hospitalized for his injuries. 

The company took photographs (Exs. P-3 through P-7). Copies 

of the photographs were later given to the MSHA investigators. 

However, the photographs were given to MSHA in a spirit of cooperation and the inspector at the scene had indicated there was no 

reason to write a citation. Subsequently, a citation was issued. 

It is agreed the restricted clearance was not marked with 

any reflectors or warnings. 'At the most restricted point, as a 

ground control device, the protrusion of the granite slab had 

been overlaid by a steel mat. The mat showed evidence that, at 

times, it had been struck by the ore cars. At this point, there 

was no clearance between ore cars and the wall. 

DISCUSSION 

The Commission in Ideal Cement Company, 11 FMSHRC 2409 at 

2416 (Nov. 1990), stated that in interpreting and applying 

broadly worded standards, the appropriate test is whether a reasonably prudent person familiar with the mining industry and the 

protective purposes of the standard would have recognized the 

specific prohibition or requirement of the standard 6 citing Canon 

Coal COou 9 FMSHRC 667u 668 (April 1987)u Quinland Coalu Incou 9 

FMSHRC 1614u 1617-1618 (Sept. 1987)0 

The requirements of 30 C.F.R. § 57.11008 are clear. Restated6 it requires that restricted clearance shall be conspicuously marked under two circumstanceso These are where the clearance is restricted and a hazard exists due to the restrictiono 

2 A swamper directs the movements of the underground ore 

haulage train. 

941 
As a threshold matter, it is uncontroverted that the area of 

restricted clearance was not marked in any manner. The restricted space went to zero distance between the ore cars and the wall. 

A ground control mat at this point showed evidence that it had 

been struck by the ore cars. The hazard was apparent: the 

swamper backed against the rib and was struck by the side of the 

ore car. (Exs. P-3 through P-7). 

New Butte raises several defenses. New Butte objects to 

MSHA using the company's photographs which were originally given 

in a "spirit of cooperation." New Butte's objections are without 

merit. MSHA legally acquired the photographs and may use them as 

evidence in a later hearing. The operator objected to the Secretary's proceeding under 30 C.F.R. § 57.11008 when the company 

had been originally cited under § 57.11001. 3 Such amendments 

are permitted under the Federal Rules of Civil Procedure. See 

Rule 15(a), Fed. R. Civ. P. 

The operator also argues the area of this stope was not a 

travelway. Therefore, by virtue of the headnote of the regulation, Subpart J does _not apply. 

I disagree, 30 C.F.R. § 5.7.2 defines a travelway as "a passage, walk, or way regularly used and designated to go from one 

place to another." On this issue I credit the inspector's testimonyo New Butte, in fact, recognized this area as a travelway 

since a walkway existed on the side away from the side of the 

protrusion. In short, the passage from wall to wall constituted 

the travelway. 

New Butte also contends the accident was not thoroughly investigated by MSHA. The company is not in a position to complain 

that the inspectors did not go underground. It is uncontroverted 

that the company blasted the protruding rib before the inspectors 

arrived to conduct their inspection. MSHAQs investigation (Ex. 

P-2) may contain some errorsu but I find it is a thorough outline 

of the accident& Further, an inspector does not have to observe 

a violation to issue a citation, Emerald Mines Co. v. Federal 

.Mine Safety and Health Review, 863 F.2d 51 CD.Co Cir. l988). 

3 The standard reads as follows~ 

§ 57$11001 Safe access. 

Safe means of access shall be provided and maintained to all working places. 

942 
New Butte also contends, and its evidence supports the argument, that the primary cause of the accident could have been 

miner Sluga's activities in distracting the ore train operator 

and giving him unauthorized signals. 

This case is not a hearing to balance the causes of the accident. Even if miner Sluga or the crew's negligence contributed 

to the accident, the ultimate issue is whether New Butte violated 

the regulation. 

New Butte also contends it did not receive a copy of MSHA's 

investigation although it requested that information. However, 

it is uncontroverted that New Butte received the report. While 

there was some delay, the operator did not establish any prejudice by reason of the delay. New Butte's contentions are without 

merit and for the foregoing reasons, Citation No. 2650622 should 

be affirmed. 

CIVIL PENALTIES 

The statutory crJteria to assess civil penalties are contained in Section llO(i) of the Act, 30 u.s.c. § 820(i). 

The operator's history is favorable, inasmuch as the company 

has only been assessed eight violations in the two years ending 

June 26, 1989. The company had no violations before October 15, 

1987. 

It is stipulated that the company is r.;:mall and the proposed 

penalty will not affect its ability to continue in business. 

The company was negligent inasmuch as a protrusion was apparento A mat had been placed at the protrusion as a ground 

control deviceu hence the company should have known of ito 

The injuries sustained by Rick Walter are indicative of the 

gravity of this violation& 

The operator blasted the protrusion before the MSHA inspectors arriveda Howeveru this action generally falls under the 

broad umbrella of ngood f ai tho nn 

On balanceu I consider the proposed penalty to be 

appropriateo 

For the following reasons, I enter the following: 

943 
ORDER 

Citation No. 2650622 and the proposed penalty of $750 are 

AFFIRMED. 

Law Judge 

Distribution: 

Susan Jo Eckertu Esq. 0 Office of the Solicitorf U~So Department 

of Labor 0 1585 Federal Office Buildingu 1961 Stout Street 0 

Denveru CO 80294 (Certified Mail) 

Mr. David w. Kneebone, Consultant, NEW BUTTE MINING, P.O. Box 

188u Butte, MT 59703 (Certified Mail) 

ek 

944 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 71991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EDWIN E. ESPEY, JR., 

EMPLOYED BY ESPEY SILICA 

SAND COMPANY, 

Respondent 

Docket No. CENT 90-122-M 

A.C. No. 41-02319-05511-A 

Espey Pit and Plant 

DECISION 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, VA, for the 

Petitioner: 

Before: 

Mr. Edwin E. Espey, Jr., San Antonio, Tx, for 

Respondent. 

Judge Fauver 

The Secretary seeks a civil penalty under § llO(c) of the 

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

seq. 

This case was heard in San Antonio, Texas, on May 22, 1991. 

Having considered the evidence, oral arguments, and the 

record as a whole, I find that a preponderance of the 

substantial, reliable and probative evidence establishes the 

following Findings of Fact and additional findings in the 

Discussion below: 

FINDINGS OF FACT 

1. Espey Silica Sand Company, Inc., a corporation, owns 

and operates an open pit mine and plant, known as Espey Pit and 

Plant, in San Antonio, Texas, where it produces silica sand for 

sales in and affecting interstate commerce. 

2. Respondent, Edwin E. Espey, Jr., is vice president and 

superintendent of the subject mine and plant. 

3. The mine and plant, at all times relevant, employed 

about four employees. 

945 
4. On April 26, 1989, Federal Mine Inspector Joseph P. 

Watson inspected the mine and plant. In the dry screen tower, a 

four-story building, he found holes and openings in the upper 

floors that were unguarded and not dangered off. He also found, 

on the second floor, a wooden purlin (a support beam for a large 

part of the floor) that was broken and bowed. The floor 

supported by the purlin was not dangered off. Based on these 

conditions, the inspector issued a combination imminent danger 

order and citation, known as Order/Citation No. 3280352, charging 

a violation of 30 C.F.R. § 56.11001, which provides: 

5. 

presented 

through a 

injuries. 

§ 56.11001 Safe access. 

Safe means of access shall be provided and 

maintained to all working places. 

The unguarded holes, openings, and broken purlin 

an imminent danger of persons or material falling 

floor and causing permanently disabling or fatal 

6. The conditi-0ns observed and cited by the inspector were 

obvious and evident by the exercise of ordinary attention. The 

purlin break and bow were obvious. All of the cited conditions 

were known by the respondent or, by the exercise of reasonable 

care, should have been known by him, substantially long before 

the inspection on April 26, 1989. 

7. Respondent's father, Edwin E. Espey, who is President 

and majority stockholder of the corporation, interfered with 

inspector Watson's performance of his official duties on April 

26, 1989, by preventing him from posting a red tag forbidding 

access to the dry screen tower. As a result of such interference 

an injunction action was brought in the united states District 

Court for the Western District of Texas (Secretary of Labor v. 

Edwin E. Espey, and Edwin E. Espey, Jr., Individually and Espey 

Silica Sand Co., Inc., a corporation, Civil Action No. SA 89 CA 

1416), resulting in a consent decree enjoining defendants from 

interfering with the Secretary or her agents in carrying out the 

provisions of the Act. 

8. Respondent in this proceeding did not aid his father in 

interfering with inspector Watson on April 26, 1989, and in 

general has demonstrated a cooperative attitude toward MSHA 

inspectors. 

DISCUSSION WITH FURTHER FINDINGS 

Section llO(c) of the Act provides that: 

Whenever a corporate operator violates a 

mandatory health or safety standard or 

knowingly violates or fails or refuses to 

comply with any order issued under this Act 

946 
or any order incorporated in a final decision 

issued under this Act, except an order 

incorporated in a decision issued under 

subsection (a) or section 105(c), any 

director, officer, or agent of such 

corporation who knowingly authorized, 

ordered, or carried out such violation, 

failure, or refusal shall be subject to the 

same civil penalties, fines, and imprisonment 

that may be imposed upon a person under 

subsections (a) and (d). 

The word "knowingly" as used in this section does not have 

any meaning of bad faith or evil purpose or criminal intent. 

"It's meaning is rather that used in contract law, where it means 

knowing or having reason to know. A person has reason to know 

when he has such informations would lead a person exercising 

reasonable care to acquire knowledge of the fact in question or 

to infer its existence." United States v. Sweet Briar, Inc., 92 

F. Supp. 777,779 (D.s.c. 1950), quoted approvingly in Secretary 

v. Kenny Richardson, 3 FMSHRC 8 (1981), affirmed, Richardson v. 

Secretary of Labor and FMSHRC, 689 F.2d 632 (6th Cir. 1982), 

cert. denied, 461 U.S. 928 (1983). 

The facts show that Respondent knew or should have known the 

existence of the conditions cited by the inspector, and should 

have corrected them, long before the inspection on April 26, 

1989. 

In reaching this finding, I have not found it necessary to 

resolve the conflict in the testimony between Respondent and his 

nephew, John Espey McDaniel. I find that McDaniel's testimony 

does not show greater weight than Respondent's testimony and 

therefore does not preponderate in establishing any fact disputed 

by Respondento Howeveru the inspector's testimony and the 

physical facts observed by him preponderate to show that 

Respondent knew or should have known the cited conditions before 

the inspection. 

I therefore find that Respondent knowingly permitted the 

violation as alleged by the Secretary. 

Considering the Respondent's overall cooperative attitude 

toward MSHA inspectors, and the fact that the corporation was 

assessed a civil penalty of $600 for the same violation as that 

charged against Respondent, and considering all of the criteria 

for civil penalties in § llO(i) of the Act, I find that a civil 

penalty of $450 is appropriate for the violation found herein. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. Respondent knowingly authorized, ordered or carried out 

947 
a violation of 30 C.F.R. § 56.11001 as alleged in the Petition 

for Assessment of civil· Penalty. 

ORDER 

Respondent shall pay a civil penalty of $450 within 30 days 

of the date of this decision. 

Distribution: 

/, J. j ;/ ::;-tfUAt/f/\_ 

~auver Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 

(Certified Mail) 

Mr. Edwin E. Espey, Jr., Plant Manager, Espey Silica Sand 

Company, Route 7, Box 500, San Antonio, TX 78221 {Certified 

Mail) 

fas 

948 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 12 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AGIPCOAL USA, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-207 

A.C. No. 15-06268-03538 

Pevler Preparation Plant 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, for 

the Petitioner ~ 

c. Gregory Ruffennach, Esq., Smith, Heenan & 

Althen, Washington, D.C., for the Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

This civil penalty case is before me, initiated by the 

petitioner against the respondent pursuant to the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the 00Act" o Respondent is contesting both a section 104 (a) citation 

and a related, subsequent section 104(b) order of withdrawal 

issued by the Mine Safety and Health Administration (MSHA). 

Pursuant to notice, a hearing on this matter was held in 

Paintsville, Kentucky, on January 17, 1991. The parties have 

both filed posthearing briefs and I have considered their 

respective arguments in the course of my adjudication of this 

case. 

STIPULATIONS 

The parties stipulated to the following (Govt. Ex. No. 1): 

1. The operator processes approximately 1.35 million tons 

of coal per year at the preparation plant. 

2. The operator employs 16 active hourly employees. 

3. The civil assessment will not affect the operator's 

ability to.continue in business. 

949 
4. citation No. 3365153 and Order No. 3365158 were issued 

by an authorized representative of the Secretary. 

5. The presiding administrative law judge has jurisdiction 

to hear and decide this case. 

The Underlying Section 104{a) Citation 

Section 104(a) Citation No. 3365153, issued on December 21, 

1989, charges a violation of the mandatory standard found at 

30 C.F.R. § 77.202 and alleges: 

The No. 3 dump has an accumulation of loose coal and 

float coal dust up to about 1/2" in depth on the floor, 

wall stringers, motors, electrical cabinets, and 

conduits, which can create a fire/explosion hazard in 

the event of an electrical defect or short. 

The facts surrounding the·issuance of this citation are 

essentially undisputed. On December 21, 1989, Inspector Reed, 

accompanied by John Dillon, the Plant Superintendent, inspected 

the No. 2 and 3 Coal Dumps as a part of his regular Triple A 

inspection at the Pevler Preparation Plant Complex. After 

inspecting the dumps, the inspector cited both as violating the 

standard at 30 C.F.R. § 77.202. He found the violative 

conditions throughout the entire dump on all three floors of the 

facility (in this case, however, we are concerned with the No. 3 

Dump only) • 

The No. 3 Dump is a raw coal dump large enough for two 10-

wheel coal trucks to dump simultaneously. It holds 500 to 550 

tons of coal and it is primarily a bypass dump to run coal into 

the Noo 3 silo bypassing the preparation plant. 

Inspector Reed testified that all three floors of the dump 

had loose coal and float coal dust on the floors and walls, as 

well as on the motors and electrical conduits. Further, the most 

significant accumulations were found in the breaker room of the 

dump. In his opinion 1 these accumulations presented two hazards; 

a stumbling and tripping hazard, which I discount, and a danger 

of explosion. 

The breaker room at the dump contained a great deal of 

electrical equipment, such as motor controllers, circuit breakers 

and contactors. The inspector was particularly concerned with 

the contactors. They constantly open and close each time a piece 

of equipment is energized or deenergized and thereby create a 

danger of igniting the float coal dust by the arcing and sparking 

that is produced. 

950 
The company essentially admits the basic violation existed 

on December 21, 1989. The plant superintendent himself conceded 

the dump was dusty, but he didn't perceive any immediate danger 

to anyone. He maintains that there is a lot of ventilation 

throughout the dump and that none of the employees are physically 

in the dump when it is operating. Mr. Dillon also opined that a 

fire or explosion hazard was unlikely since there are no exposed 

sources of ignition. The greatest potential source of ignition 

was the contactors in the breaker room, but they were all sealed 

inside metal boxes in order to minimize contact between any 

potential source of ignition and any existant float coal dust. 

Furthermore, all the wiring to the various motors and starter 

components in the breaker room is enclosed in metal conduit. 

The company, therefore, contests Inspector Reed's 

"significant and substantial" finding in the original section 

104(a) citation. 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 

C.F.R. § 814(D) (1). A violation is properly designated 

significant and substantial "if based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature.". Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

In United States Steel Mining Company, Inco, 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

951 
1984). We have emphasized that, in accordance with the 

language of section 104(d} (1), it is the contribution 

of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining 

Company, Inc., 6 FMSHRC 1866, 1868 (August 1984}; 

steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75 

(July 1984). 

There is no doubt that there was a violation of the 

mandatory safety standard cited, 30 C.F.R. § 77.202, and I concur 

with the existence of an enhanced measure of danger to safety 

caused by the dust accumulations. However, the Secretary must 

also establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an 

inJury. This latter she has failed to do. The No. 3 Dump is an 

unmanned facility. It is remotely controlled from an operator's 

room on the side of the No. 2 Dump some 100-150 feet away. There 

are no employees needed in the dump while it is operating and 

indeed the employees are instructed not to enter them while they 

are in operation. I therefore find that the instant violation 

does not meet the "S&_S" criteria because it is unlikely that any 

injury to anyone would occur as a result of this violation, and 

the citation will be so modified. 

In assessing a civil penalty in this case, I have considered 

the foregoing stipulations, findings and conclusions and the 

requirements of section llO(i) of the Act. I concur with the 

inspector's negligence finding of "moderate". Under these 

circumstances, I find that a civil penalty of $100 is 

appropriate. 

The Subsequent Section 104(b) Order 

Section 104{b) Order No. 3365158u was issued on January 2u 

1990 and alleges: 

The cited float coal dust is still present on the 

electrical conduits & tops of the electrical component 

cabinets. Additional cleaning is still required on the 

cabinet faces, wall beams & the floor. 

The original citation set a date of December 24, 1989 as the 

time when the violation was to be abated. On January 2, 1990, 

Inspector Reed returned to the preparation plant to inspect and 

terminate the citations written for both the No. 2 and No. 3 

Dumps. He found the No. 2 Dump cleaned to his satisfaction and 

abated the citation. The instant problem, however, arose in the 

No. 3 Dump. 

Although the majority of the No. 3 Dump had been cleaned to 

the inspector's satisfaction, he was not satisfied with the 

cleanup of.the breaker room. The breaker room is the electrical 

952 
room for the No. 3 Dump and is approximately 8 feet by 12 feet 

(96 square feet) in area located on the second level of the dump. 

It constitutes a small but significant portion of the total area 

originally cited. 

The breaker room contains the electrical components for the 

machinery in the Dump. At the center of the breaker room are 

metal cabinets which enclose the breakers and starters. The 

breakers and starters are thus enclosed and covered by metal 

doors with two lock-in type screws. These cabinets are designed 

to minimize the amount of coal dust entering the metal cabinets 

from the outside and to contain the arcing or sparking of the 

breakers and starters inside. There is virtually no potential 

for an ignition in the breaker room when these cabinets are clean 

and closed. 

All the wiring to the motors and to the starter components 

in the breaker room is enclosed in conduit. These conduits are 

located near the ceiling of the breaker room approximately 10 

feet high. 

The greater part of the accumulations of coal dust which the 

inspector found on January 2, 1990 were located on top of these 

cabinets and conduits. 

When Inspector Reed returned on January 2, he was 

accompanied by Mr. Don Hall, the company safety director and 

Mr. Fannin, the union representative. After Inspector Reed 

indicated that the breaker room needed additional cleaning, 

Mr. Hall left the dump and went to find Mr. Cantrell (the Mine 

Manager) to inform him that the area had not been cleaned to 

Inspector Reed's satisfaction. Cantrell went to the No. 3 Dump 

to meet with Inspector Reed. When he arrived, Inspector Reed 

indicated to him at that time that he was going to shut down the 

Noo 3 Dump because the breaker room needed additional cleaning" 

In an attempt to avoid the threatened "b" order, Hall, Cantrell 

and Fannin quickly cleaned up the coal dust which the inspector 

had found in the breaker room. It took the three men about 

fifteen minutes to clean it to his satisfaction, and involved 

wiping the dust off the top of the conduits and cabinets and 

sweeping the floor of the breaker room. 

The company had previously made a considerable effort to 

abate the citation. A contractor's cleaning crew worked 

approximately 19 man-hours to clean the No. 3 Dump on December 

23, 1989. At this time, Mr. Cantrell inspected the dump and 

specifically inspected the breaker room and in his opinion, as of 

December 23, 1989, the breaker room was sufficiently cleaned to 

abate the citation. 

On the next regularly scheduled cleanup day, December 31, 

1989, after another week of operation, the No. 3 Dump was cleaned 

953 
again. On December 31, 1989, the cleanup crew worked 

approximately 18 hours. Cantrell again inspected and was 

generally satisfied that the breaker room was clean. However, he 

did find some dust inside the electrical cabinets where the 

breakers and starters are located. He ordered the cleanup crew 

to turn off the power and blow the dust out of the cabinets and 

reseal the doors. 

The coal dust later found by the inspector on top of these 

cabinets and on top of the overhead conduits was above eye level 

and was admittedly missed by the clean up crew as well as by Mr. 

Cantrell. 

It is the operator's position that Inspector Reed, in these 

circumstances, should have extended the abatement period to allow 

them a quick clean-up rather than issue the section 104(b) order. 

Section 104 of the Mine Act provides in relevant part: 

(a) If, upon inspection or investigation, the 

Secretary ... believes that an operator •.. has violated 

this Act, or any mandatory health or safety standard, 

rule, order, or regulation ••• he shall .•. issue a 

citation .... The citation shall fix a reasonable time 

for the abatement of the violation .... 

(b) If, upon any follow-up inspection •.. an authorized 

representative of the Secretary finds (1) that a 

violation described in a citation ..• has not been 

totally abated within the period of time as originally 

fixed therein or as subsequently extended, and (2) that 

the period of time for the abatement should not be 

further extended, he shall ... promptly issue an order 

requiring the operator ... to immediately cause all 

persons ... to be withdrawn from, and to be prohibited 

from entering, such area .... 

The inspector is thus required to make a finding as to 

whether or not the abatement period should be extended prior to 

issuing a section 104(b) withdrawal order. The reasonableness of 

his actions must be determined on the basis of the facts 

confronting him at the time he issued the order. United States 

Steel Corporation, 7 IBMA 109 (1976). 

Three factors are generally considered or at least should 

have been considered by Inspector Reed to determine whether the 

abatement period should have been extended: 

(1) The degree of danger that any extension would have 

caused to miners; 

954 
(2) The diligence of the operator in attempting to 

meet the time originally set for abatement; and 

(3) The disruptive effect an extension would have had 

upon operating shifts. 

Of these, the first two are the most pertinent to the case at 

bar. 

I have already found and concluded earlier in this decision 

that the condition cited by Inspector Reed in the original 

section 104(a) citation was not a "significant and substantial" 

violation of the mandatory standard and I now find that the 

"left-over" condition he found on January 2, 1990, did not pose 

any particular hazard to miners. In this case, the additional 

cleanup to fully abate the citation to his satisfaction took only 

fifteen minutes and since no miners actually work in the No. 3 

Dump, no miners were in fact withdrawn by the order. It appears 

to me that the inspector issued the order for record purposes 

only. 

In assessing the'company's good faith in attempting to abate 

the original citation it is necessary to take into account the 

totality of the company's efforts. The original citation, as 

issued, applied not only to the breaker room but also to the 

entire No. 3 Dump. Moreover, the original citation was issued in 

conjunction with another Section l04(a) citation issued for 

accumulations in the No. 2 Dump. 

The company's efforts in abating these citations, set out 

earlier, within the prescribed abatement period were substantial 

and, with the exception of the breaker room, Inspector Reed was 

satisfied with the company's abatement efforts. The employees 

assigned to clean the breaker room apparently missed the coal 

dust on top of the conduit and cabinets. And although 

Mro Cantrell personally inspected the breaker room afterwards he 

also did not notice these accumulations of coal dust. The tops 

of the conduit and cabinets are obscured from view by their 

position above eye level, and although this is no excuse for not 

cleaning up thereu I believe it was the reason these 

accumulations were left behind. 

I therefore find that the accumulations remaining in the 

breaker room on January second did not represent a lack of 

diligence on the part of the company's cleanup effort but rather 

were an understandable 11 oversight 11 , that was capable of being 

corrected in a mere fifteen minutes without causing any 

particular hazard to miners. 

Inspector Reed himself testified that if he had believed 

that a truly diligent effort had been made to clean the room he 

would have extended the time for abatement of the citation. 

955 
After reviewing the evidence in this case, I do believe the 

company made a truly diligent effort to clean the breaker room 

and I also believe that Inspector Reed failed to give due and 

serious consideration to their efforts to abate or to extending 

the period for abatement. 

Furthermore, I find that his failure to extend the period 

for abatement was unreasonable and contrary to section 104(b) of 

the Act. Accordingly, the subject order will be vacated herein. 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED THAT: 

1. Citation No. 3365153 IS AFFIRMED as a non-S&S 

violation of 30 C.F.R. § 77.202. 

2. Section 104(b) Order No. 3365158 IS VACATED. 

3. The respondent IS HEREBY ORDERED TO PAY a civil penalty 

of $100 within 30 days of the date of this decision. 

urer 

s rative Law Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

C. Gregory Ruffennach, Esq., Smith, Heenan & Althen, 1110 Vermont 

Avenue, N.W., Suite 400, Washington, DC 20005-3593 (Certified 

) 

/ml 

956 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LINDA LESTER, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 12 1991 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. VA 91-26-D 

GARDEN CREEK POCAHONTAS 

COMPANY, 

NORT CD 90-14 

Respondent Virginia Pocahontas #6 Mine 

ORDElt OF DISMISSAL 

Appearances: Susan Oglebay, Esq., Castlewood, Virginia, for 

the Complainant; 

Charlie R. Jessee, Esq., Yeary, Tate, Lowe & 

Jessee, P.C., Abingdon, Virginia, for the 

Respondent. 

Before: Judge Maurer 

At the hearing in Abingdon, Virginia, on April 25, 1991, 

Complainant, by counsel, moved to withdraw her complaint, with 

prejudice, and dismiss this case. Respondent does not object. 

Accordingly, the Motion is GRANTED, and this proceeding is 

DISMISSED, with prejudice. 

Rb~~ k~~i~~ttative Law Judge 

Distribution~ 

Susan Oglebay, Esq., P. o. Box 28, Castlewood, VA 24228 

(Certified Mail) 

Charlie R. Jessee, Esq., Yeary, Tate, Lowe, & Jessee, P.C., 

P. O. Box 1685, 161 E. Main Street, Abingdon, VA 24210 (Certified 

Mail) 

dcp 

957 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 13 1991 

AVIS B. PERKINS, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

MORNINGSIDE DEVELOPMENT 

CORPORATION, 

Respondent 

ORDER 

Docket No. WEVA 91-23-D 

MSHA Case No. MORG CD 90-12 

Little Falls Mine 

On April 25, 1991, an order was issued directing Complainant 

to file a statement indicating the specific relief requested. It 

was further provided in the order that Respondent shall have 

20 days from the date service of the Statement is attempted, to 

reply to the statement. Complainant's statement was received by 

the Commission on May 17, 1991. In its statement, Complainant's 

counsel certified that he mailed Respondent a copy of the 

statement on May 14, 1991. Respondent has not filed any response 

to Complainant's Statement. 

Complainant seeks the imposition of punitive damages in the 

amount of $10,000. The complaint in this case was filed pursuant 

to Section 105 of the Federal Mine Safety and Health Act of 1977 

(the Act). Neither section 105, supra, nor the Rules of the 

Commission, 29 C.F.R. § 2700 et seq., provide for the imposition 

of punitive damages. Further, such relief is not proper in this 

case. The record does not contain any evidence surrounding the 

alleged discriminatory acts, as there was no evidentiary hearing 

in this matter, because Respondent had defaulted in not filing an 

Answer. Hence, there are no facts before me to support the 

imposition of punitive damages. 

The balance of relief sought by Complainant is proper under 

the Act. 

Accordingly, it is ORDERED that, within 30 days of this 

Order, Respondent shall pay Complainant the following sums: 

(1) Backpay from July 13, 1990 totalling 

(2) Attorney Fees 

(3) Travel expenses in seeking employment 

958 

$24,000.00 

$ 950.00 

$ 286.50 

$25,236.50 
It is further ORDERED that Respondent shall, within 30 days 

of this Order reinstate Complaint to his prior position. 

Distribution: 

Avram isberger 

Administrative Law Judge 

(703) 756-6210 

FAX (703) 756-6201 

Harley E. Stollings, Esq., Breckinridge, Davis, Sproles & 

Stollings, 509 Church Street, Summersville, WV 26651 

(Certified Mail) 

Mr. J. Douglas Crane, President, Morningside Development 

Corporation, 153 Walnut Street, Morgantown, WV 26505 

(Certified Mail) 

/fb 

959 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

June 17, 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 90-198 

A.C. No. 46-03805-03978 

v. 

Martinka No. 1 Mine 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Glenn M. Loos, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the 

Petitioner; 

Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & 

Critchfield, Morgantown, West Virginia, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a}, seeking civil penalty assessments for 

two alleged violations of certain mandatory safety standards 

found in Part 75, Title 30, Code of Federal Regulations. The 

respondent filed an answer contesting the alleged violations, and 

pursuant to notice, a hearing was held in Morgantown, 

West Virginia. The parties filed posthearing briefs, and I have 

considered their arguments in the course of my adjudication of 

this matter. 

Issues 

The issues presented in this proceeding are (1) whether the 

respondent has violated the standards as alleged in the proposal 

for assessment of civil penalty, (2) whether the violations were 

"significant and substantial," and (3) the appropriate civil 

penalties that should be assessed based on the civil penalty 

criteria found in section llO(i) of the Act. Additional issues 

raised by the parties are identified and disposed of in the 

course of this decision. 

960 
Applicable statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.l et seq. 

Discussion 

Section l04{a) "S&S" Citation No. 3118460, issued on 

March 14, 1990, by MSHA Inspector Virgil M. Brown, Jr., cites an 

alleged violation of mandatory safety standard 30 C.F.R. 

§ 75.508, and the cited condition or practice is described as 

follows: 

The elect (sic) map of the DC trolley system is not 

accurate in that trolley knife blade switches with 

handles are used where dead block insulators are shown. 

Section 104(a) "S&S" Citation No. 3312067, issued on May 1, 

1990, by MSHA Inspector Virgil M. Brown, Jr., cites an alleged 

violation of mandatory safety standard 30 C.F.R. § 75.1403, and 

the cited condition or practice is described as follows: 

The short circuit protection for the trolley wire outby 

#30 blopk was not set properly and was not in 

compliance with the 75% safeguard. The 18 left rect. 

(sic) was set on 47/or 2834 amps. Load drop tests 

revealed that the rect. (sic) outby end should have 

been set on 37/or 2224 amps. 

In issuing the citation, Inspector Brown relied on a 

previously issued safeguard Notice Nao 2258189, dated 

November 14v 1983, and he included this information in the 

appropriate places on the face of the May 1, 1990, citation. 

Discussion 

Citation No" 3118460 

After the completion of the testimony of Inspector Brown, 

the petitioner 1 s counsel was granted a short recess. He then 

advised the court that the parties had settled the alleged 

violation and that based on the testimony of the inspector, the 

petitioner decided to vacate the citation. The respondent raised 

no objection, and the petitioner's disposition of the alleged 

violation was approved from the bench {Tr. 146-148). 

Citation No. 3312067 

961 
Petitioner's Testimony and Evidence 

MSHA Inspector Virgil M. Brown, Jr., testified that he is an 

electrical specialist with prior mine experience as a mine 

manager, foreman, fire boss, and maintenance person, and that he 

holds a bachelor's degree in mining engineering and has attended 

the MSHA Academy at Beckley, West Virginia, which included 

2 weeks of electrical trai'ning. He has also taken electrical 

correspondence courses (Tr. 15-16). He confirmed that he 

conducted an electrical inspection at the mine on May 1, 1990, 

and that he inspected the short circuit protection for the DC 

trolley system. He confirmed that he performed a load drop test, 

and he explained the results of his test (Tr. 159-162). He also 

identified exhibit P-8 as a copy of his inspection notes, exhibit 

P-9 as a copy of the citation he issued, and exhibit P-10 as the 

prior safeguard notice issued by Inspector Wayne Fetty on 

November 14, 1983. 

Mr. Brown stated that the results of his load drop test 

indicated that the fault protection for the circuit in question 

was set "nearly at 100 percent setting or just a little bit below 

100 percent setting,'" and he explained that the slight 

discrepancy in the test results recorded in his notes and those 

shown on the citation were due to the fact "that 37 is the 

closest thumb wheel setting to that value, and, you're either 

going to go 60 below this value or 60 above this value 11 (Tr. 

161) • 

Mr. Brown stated that the respondent had conducted prior 

load drop tests on April 10, 1990, as reflected by exhibit P-11, 

and he confirmed that he based his low negligence finding on the 

fact that the respondent did not ignore the tests and was trying 

to maintain the required circuit protection settings on their DC 

trolley system (Tro 165). He further confirmed that the 

respondent was in violation of the previously issued safeguard 

because the circuit protection setting was at 100 percent, rather 

than the 75 percent required by the safeguard. If the setting 

were over 100 percent there would have been a violation of 

mandatory safety standard section 75.1001, rather than the 

safeguard (Tr. 165). 

Mr. Brown explained what was required under the safeguard 

issued by Inspector Fetty, and he believed that a trained 

electrician who has worked around a DC trolley system would be 

familiar with the requirements of the safeguard notice and the 

load drop tests. Mr. Brown confirmed his belief that the 

conditions he cited constituted a violation of the requirements 

of the safeguard notice (Tr. 168). 

Mr. Brown stated that the hazards created by the cited 

conditions included the probability and likelihood of a bolted 

short circuit, and a fire caused by arcing which could ignite the 

962 
combustible materials used in the roof support system. He 

explained that wooden header boards or planks are within inches 

of the trolley wires, and that a prior fire had occurred in the 

mine when a head board caught fire and he and Inspector Fetty 

came upon a motorman trying to extinguish the fire over the motor 

which had caused the fire (Tr. 50-51). He was aware of a trolley 

wire which fell on another section and did not trip the circuit 

breaker, indicating that it was not set appropriately. He was 

also aware of approximately 22 accidents over a 7-year period 

that resulted in 11 lost time injuries and 12 fatalities, as 

reported in an MSHA study (Tr. 168-169). He believed that "the 

situation and the mining methods and the settings that the 

rectifiers are • . • its likely for a problem to occur that would 

bes and S11 (Tr. 169). 

Mr. Brown further explained how a fire could start as a 

result of inadequate short circuit protection, and he indicated 

that the 75 percent setting required by the safeguard notice came 

from an MSHA report and studies which were done showing that 

arcing faults could occur and not open any circuit interrupting 

devices. He also explained ~he difference between an arcing 

fault and a bolted fault, and he believed it was reasonably 

likely that a fault would occur because of the metal overcast 

arches used for roof support. He confirmed that he has observed 

at least three occurrences, including a recent incident, where 

the insulation was melted off the trolley wire. He believed that 

a bolted fault would definitely trip if the circuit protection 

were set at 100 percent, but that an arcing fault would not trip 

and would remain open until it was cleared or burned far enough 

so that the flame path is extinguished or someone saw it and 

repaired it. He confirmed that he has personally observed six or 

eight mine fires caused by arcing faults, including one at the 

subject mine, over the past 20 years (Tr. 171-177). 

Mro Brown stated that the issuance of a 11 75 percent 

safeguard notice" such as the one he relied on to support the 

violation is not based on any MSHA district wide policy at mines 

with trolley systems. He confirmed that he inspects five mines 

with trolley systems and that the Martinka and Robinson Run mines 

are the only ones with safeguard notices (Tr. 177). Mr. Brown 

confirmed that he was familiar with the requirements of mandatory 

safety standard section 75.1001 and 75.1001-(b), and he explained 

his understanding of these regulations. He stated that if he 

finds any short circuit protection settings over 100 percent, he 

will cite section 75.1001, but if the setting is between 75 and 

100 percent he will cite the safeguard notice (Tr. 179, 183-184). 

He explained that the 100 percent setting requirement is based on 

section 75.1001, and it is an industry standard based on the load 

drop test. The 75 percent safeguards lower the mandatory 

100 percent setting based on special mine conditions (Tr. 185-

186) • 

963 
on cross-examination, Mr. Brown stated that he normally 

selects a mine area which has advanced the furthest to conduct 

his load drop tests because such an area would be the likely area 

to be out of compliance or have a problem which the mine 

electrical department would be aware of. He agreed that loose 

trolley wire "fish plates" could cause the rectifier settings to 

be set at less than the 2,224 amps required by the safeguard 

notice, and that this does occur in a mine, and if it does, it 

would result in a change in the load drop tests (Tr. 190). He 

confirmed that the 22 accidents which he previously referred to 

did not occur at the Martinka Mine, and he stated that "those 

were just separate safeguards" (Tr. 191). He also confirmed that 

the melted trolley wire guard fire caused by arcing was not a 

reportable fire because it was extinguished in less than 

30 minutes, and that he was not personally aware of any 

reportable fires at the mine (Tr. 192). 

Referring to section 75.1001-l(b), Mr. Brown explained his 

understanding of the testing and calibration language found in 

that regulation (Tr. 192-195). He confirmed that under MSHA's 

guidelines and policy manuals, it is appropriate for an inspector 

to issue a safeguard ~o addres-sspecific conditions or problems 

that have resulted in, or could result in, lost time accidents 

(Tr. 195-196). He confirmed that any safeguard issued by an 

inspector must go through the district manager in order to avoid 

"blanket covering" mines, and that he was so instructed by a 

supervisor during several meetings (Tr. 197). He confirmed that 

mine safeguard notices are a matter of record in the uniform mine 

file that he is required to review, and that such information can 

be retrieved on a computer at the district or sub-district 

office. However, he did not know how many safeguards have been 

issued at the subject mine. He stated as follows with respect to 

the safeguard he relied on in support of the citation (Tr. 200-

201) ~ 

Qo Mro Brown, do you know the reason that safeguard 

2258189 which was issued by Inspector Wayne Fetty to 

Martinka Mine, do you know why it was issued? 

Ao It was issued I guess after he did a look at the 

study that was done on the arcing faults and the 

after a study was done of what was there at that mine, 

of the conditions there as specific to that mine. 

Qo And you 1 re just getting this information by reading 

the actual safeguard; is that correct? 

Ao Out of the safeguard and the actual printout and I 

also talked with the inspector. 

Q. Mr. Brown, would you agree with the statement that 

a duly authorized representative of the Secretary such 

964 
as yourself, may issue a safeguard if it addresses 

hazards related to the transportation of men and 

materials? 

A. Definitely. Yes, ma'am. 

Q. All right. And that a safeguard would be issued on 

a mine by mine basis?' 

A. Mine by mine. 

Q. Due to a peculiar or particular circumstance at 

that particular mine? 

A. That's right. 

Mr. Brown stated that he has inspected approximately 

45 mines in district three, and that approximately 10 percent of 

them are trolley powered mines. He indicated that safeguards 

have been issued at mines with large amp capacities, and these 

mines are "more apt to have arcing faults and their settings 

would be higher," and-they have combustibles close to the trolley 

wire and associated switching gear. He also indicated that the 

Martinka Mine uses trolley haulage on the longwalls with rather 

large motors that pull the trolleys on the trolley wire and that 11 they're more apt to have a fault at Martinka" (Tr. 202). 

Referring to the respondent's pre-trial discovery requests and 

replies by t~e petitioner (exhibits R-2-A), Mr. Brown confirmed 

that 11 of the 17 listed mines in his district have been issued 

75 percent safeguard notices (Tr. 203-205). 

Mr. Brown confirmed that he did not cite a violation of 

section 75.1001-l(b), "because it was in compliance with this as 

far as the 100 percent setting goes" (Tr. 207). In response to a 

question as to whether MSHA is holding the respondent to a higher 

standard of care under section 75.1001, by requiring a safeguard 

setting of 75 percent, Mr. Brown responded "I guess you can see 

it as that if that 9 s the way you want to look at it. I view it 

as a violation of a safeguard" (Tr. 208). The parties stipulated 

that at a 100 percent setting, the mine was within the "plus or 

minus 15 percentgu language found in section 75.1001-l(b) (Tr. 

217). Mr. Brown confirmed that the difference between the 

75 percent safeguard requirement and section 75.1001-l(b), is the 

percentages (Tr. 218). 

Mr. Brown confirmed that he based his low negligence finding 

on the fact that the respondent had performed the load drop test, 

and he did not believe that there was any intent to place the 

setting beyond 75 percent. He believed that the violation was an 

oversight resulting from driving and advancing so far and that 

"it just slipped by them" and "they were trying to do a good job" 

(Tr. 219). 

965 
on re-direct, and after further review of the listing of 

mines with and without safeguard notices (exhibits R-2-A), 

Mr. Brown stated that 23 of the mines listed do not have 

safeguard notices, and that two do (Tr. 225-226). 

MSHA Inspector Edwin w. Fetty testified that he is an 

electrical inspector, has worked for MSHA for 16 years, and has 

25 years of mining experience. He has also attended the MSHA 

mine academy and periodically assists in electrical retraining 

and conducting mine hoisting classes. He is familiar with the 

subject mine and was initially assigned there to conduct 

electrical inspections when he was hired as an inspector. Based 

on a review of his files, he confirmed that he conducted an 

electrical spot inspection at the mine on November 14, 1983, and 

issued a section 104(a) Citation No. 2258188 at 11:00 a.m., after 

conducting a voltage drop test at the diagonal track haulage 

switch in the 025 section. He also issued safeguard Notice 

No. 2258189 at 1:00 p.m. that same day (exhibit P-10) (Tr. 

227-231). 

Mr. Fetty stated that he ... iss\led the citation on November 14, 

1983, after finding that a device on a 500 KW rectifier was set 

at approximately 2,800 amps, which was 100 percent in excess of 

the 1,700 amps required by section 75.1000-1. Mr. Fetty 

explained that during a previous electrical spot inspection on 

September 22, 1983, he found the same condition in another area 

of the mine and issued a section 104(a) citation. Upon his 

return to the mine in November, 1983, and after finding the same 

condition existing again, he decided that he was justified in 

issuing the safeguard notice. He confirmed that due to problems 

involving accidents and fatalities associated with trolley 

circuits and mine fires, district manager Ron Keaton authorized 

the issuance of safeguard notices, on a mine-by-mine basis, 

requiring settings of 75 percent in lieu of 100 percent. The 

specific conditions that warranted the issuance of the safeguard 

were those stated in Citation No. 2258188, namely, the setting of 

the breakers ui in the neighborhood of 100 percent above the 

compliance of 75.1000-1 11 (Tr. 234). 

Mr. Fetty stated that at the time he issued the citation and 

safeguard he believed that an unplanned roof fall or a piece of 

mining equipment contacting a trolley wire could cause an arcing 

fault to occur and this could cause a mine fire, with resulting 

smoke inhalation, asphyxiation, or burns. In those mine areas 

where wooden boards are used above the trolley or feeder wires to 

keep rock and debris from falling down on the track haulage, a 

fire would be likely (Tr. 234). Mr. Fetty explained the 

requirements of the safeguard notice which he issued as follows 

at (Tr. 235-236): 

A. The way the safeguard is written it is required 

that the automatic circuit interrupting device 

966 
installed on a 300 volt DC track haulage system shall 

be provided with devices to detect short circuits which 

are at least 75 percent of the minimum voltage short 

circuit current available as determined by periodic 

voltage current load drop test. 

Q. Okay. In layman's terms, something that I'd 

understand, what does' that require? 

A. That requires that you go out and put the amount of 

current on your DC trolley system and whatever your 

value is at 100 percent what is available, reduce it to 

75 percent of the available fault current. 

Q. Okay. Reduce what to 75 percent? 

A. The available fault current. Like if it was 1,000, 

reduce it down 25 percent of 1,000. 

Q. And what purpose does that serve? 

A. That would ba an increase --- a better safety 

factor and should something happen it would detect and 

cause the device to trip quicker. 

Q. Okay. What device? 

A. The interrupting device on the trolley circuit. 

Q. Short circuit protection? 

A. Right. 

Q. Nowv would you say the requirements of that 

safeguard are readily understandable to a person 

experienced on trolley systems? 

A. Someone that has been given proper training at the 

mine to go out and conduct and perform these required 

voltage drop tests, yes, but an average run-of-the-mine 

electrician 1 I would have to do it to say no. 

Mr. Fetty confirmed that he has reviewed the citation issued 

by Inspector Brown and he agreed that the condition cited 

violated the requirements of the contested safeguard notice (Tr. 

237). He further confirmed that there are approximately 28 to 30 

mines in his district that have trolley systems, and he guessed 

that nine or 10 of these mines were covered by a 75 percent 

safeguard. He stated that three of the safeguards which he 

issued were issued at different times, but were based on 

basically the same condition, and he explained the reasons for 

the safeguards which were issued at the Consolidation Coal 

967 
company's Loveridge No .. 22 Mine, the Robinson Run No. 95 Mine, 

and an Island Creek Coal Company mine (Tr. 238-240). 

Mr. Fetty stated that section 75.1001-l(b) requires the 

testing of automatic circuit breaker devices at intervals not 

exceeding 6 months, and also provides that the devices "be in 

calibration to plus or minus 15 percent with the associated relay 

to that circuit and if the authorized representative feels that 

more tests are required" (Tr. 241). He did not believe that this 

standard has any bearing on the safeguard, and he confirmed that 

he issued the safeguard because it was justified in light of the 

problems that he encountered (Tr. 241). 

On cross-examination, Mr. Fetty explained the problems he 

had encountered at the mine with respect to section 75.1001-1 and 

the trolley short circuit protection. He stated that "after 

issuing the violations and running through that pattern that I 

had ran through and reading and making more in-depth studies and 

seeing what the conditions was, I figured that the 75 percent, 

which I had permission to issue the safeguard, shouldn't be 

reduced. It should be maintained g.t that setting" {Tr. 244). 

Mr. Fetty stated tha"t there is no i'blanket coverage" for issuing 

safeguards, but if anything is not spelled out under section 

75.1403, an inspector must request permission from the district 

manager to issue a safeguard under the "other safeguards" 

language found in that section (Tr. 245). Mr. Fetty confirmed 

that he was not familiar with all of the safeguard notice 

guidelines set out in the National Gypsum case, but indicated 

that prior to that decision, he encountered compliance problems 

at the mine with respect to sections 75.1001, 75.516, and 

energized trolley wires contacting wooden materials. Although 

these problems did occur at other mines, they were more frequent 

at the Martinka Mine (Tr. 248). 

Mro Fetty confirmed that based on his review of MSHA 

accident and fire reports concerning problems with trolley wires 

he believed that a way to prevent these occurrences at the 

subject mine would be to reduce the circuit protection from 

100 percent to 75 percent, and even though accidents or fires may 

not have occurred at the mine, he believed that the safeguard was 

a preventive measure to preclude those events at the mine 

(Tro 25l)o He believed that he was justified in issuing the 

safeguard to gain a higher margin of safety by lowering the 

circuit protection device by 25 percent and establishing a 75 

percent requirement (Tr. 253). 

Mr. Fetty stated that the 75 percent short circuit 

protection setting was established from information he obtained 

through district manager Keaton, and seminar materials and 

information which he (Fetty) obtained. Mr. Fetty "guessed" that 

the value setting of 75 percent was established by Mr. Keaton and 

"whomever made the request to have the permission to issue the 

968 
safeguard on a mine by mine basis" {Tr. 256). Mr. Fetty 

confirmed that those mines which do not have the 75 percent 

safeguard must comply with sections 75.1001 and make the tests 

mandated by section 75.1001-l{b) (Tr. 259). He also confirmed 

that the respondent "learned to live with the 75 percent" 

safeguard with additional feeder and ground wire, and he has 

inspected other mines where the available fault current is 

maintained at 50 percent (Tr. 265). He further explained the 

establishment of a 75 percent value as follows (Tr. 266): 

A. Because the people in our meetings, my supervisor, 

other people, prudent engineers, which I'm not, I'm not 

an engineer, they felt that this safety factor of 

25 percent would greatly be in aid and assistance to 

the health and safety of the miners and to prevent 

fires in the coal mines and that's why they came up and 

went with the 75 percent. 

Mr. Fetty confirmed that section 75.1001 relates to the 

circuit device trip setting ma·rgin of plus or minus 15 percent, 

and that mines without the 75 percent safeguard must comply with 

this section. He sti1i believes that the safeguard which has 

been in effect for 7 years is still valid because the conditions 

that prompted him to issue it are still occurring at the mine 

(Tr. 269, 271-272). He further confirmed that there have been 14 

violations of section 75.1001, issued at the mine since 1985, and 

while he did not know the details, he indicated that they would 

all pertain to trolley circuit short circuit and overcurrent for 

various reasons (Tr. 273-274). He stated that these violations 

could also have been issued under the safeguard notice if the 

circuit setting was in excess of 100 percent and not in 

compliance with the 75 percent requirement (Tr. 278). 

In response to further questions, Mr. Fetty confirmed that 

he issued the safeguard notice in question as "a preventative 

measureuin as well as the previously stated mine conditions and 

problems which he had encountered, and the information and 

studies pertaining to trolley wire fires (Tr. 276-77, 281). 

Respondent's Testimony and Evidence 

John R. Cooper testified that he has been employed with the 

respondent for over 15 years, and has served at the Martinka Mine 

for over 2 years as the general maintenance superintendent. His 

duties include the maintenance of all mine equipment and support 

systems for the mine, ventilation plans, the DC track trolley 

system, and the safety of all equipment and mine personnel. He 

is a magna cum laude graduate of the Ohio University, with a 

Bachelor of science degree in electrical engineering, and his 

prior experience includes 3 years as an associate professor of 

electrical engineering at the Decry Institute of Technology in 

Columbus (Tr. 286). 

969 
Mr. Cooper stated that he reviewed the citation issued by 

Mr. Brown and discussed it with him briefly after it was issued. 

He informed Mr. Brown of his belief that the violation was not 

"S&S" because the actual rectifier setting was below the 

available short circuit currents, and if a short circuit were to 

develop any place on the line, the overcurrent devices would 

recognize the fault condition and trip the circuit breaker offline, and there would be no safety concern whatsoever. Since 

there was no possibility or probability of any unsafe condition 

or injury, Mr. Cooper did not believe that the "S&S" finding was 

justified (Tr. 287). 

Mr. Cooper stated that he did not discuss his belief that 

the condition cited was not a violation under the 75 percent 

safeguard notice with Mr. Brown, but that he always had a 

question about it because it was "something new to me . . . that 

I had inherited here at Martinka since I was transferred over" 

(Tr. 288). He explained that in his prior 14 years experience at 

the Meigs Division, no safeguards of the type issued by Mr. Brown 

ever pertained to the DC track trolley system {Tr. 288). 

Mr. Cooper did not believe that the safeguard was valid, and he 

explained his reasons_ for this conclusion as follows at {Tr. 

289-290): 

A. Well, there are many stipulations I understand that 

should be addressed or be satisfied before a safeguard 

is issued. I'm not fully familiar with all the legal 

stipulations of that but a lot of them have to do with 

being a mine specific type requirement which I was 

never clear on why that was --- this was a mine 

specific type situation. I really wasn't clear on 

where this 75 percent limitation was arbitrarily set 

and where that came from. I was never familiar with 

any policy memorandum issued from any of the MSHA 

districts or headquarters or division offices saying 

that this is something that should be done or what the 

guidelines were for issuing it. So I had a lot of 

questions really that were never answered why we had 

this safeguard saying that we could only set our 

protection to 75 percent of the indicated value. 

Qo Did you ever try and find out from any of the MSHA 

people why the safeguard was issued? 

Ao Not to any great length. 

Q. I mean, was that just because there wasn't a 

violation issued in connection with the safeguard or 

what was the reasoning? 

A. Well, the violation that was issued at the time, 

the one that we're discussing here, I believe is the 

970 
first time that this was issued under a safeguard 

condition and not a 75.1001. 

Q. When you were a general maintenance superintendent 

at Martinka? 

A. That's correct. And so when this came up, that's 

when I started having' the questions on where did this 

come from and why did we have it, what are we 

accomplishing by looking under the safeguard as opposed 

to what is set forth with that 75.1001. 

Mr. Cooper explained the operation of the DC trolley haulage 

system and he confirmed that it is operated by 11 300 volts DC, 

being conducted down a bare trolley wire conductor," and that the 

"power is picked off by a sliding carb or shoe arrangement" (Tr. 

291). The system is an underground mine railroad with large high 

force power equipment which moves on rails and smaller personnel 

carriers with lower horsepower requirements (Tr. 290). He 

sketched out the system and stated that "the whole trick of the 

system is keeping it properly protected so that if there's a 

fault on the line, or short circuit, that the protection devices 

in the rectifier will recognize that and open up under a fault 

condition but yet will still allow you to have the proper amount 

of power to operate these large horsepower pieces of equipment in 

the mine" (Tr. 292). 

Mr. Cooper explained the electrical track system and he 

stressed the concern with protecting the system or limiting the 

current under a fault condition, and the importance of knowing 

the resistance of each feedline on the system and the available 

short circuit current that will flow so that the trip devices can 

be set accordinglyo He confirmed that circuit breakers are 

located at every rectifier in the mine, and he explained how they 

functionedo He explained that a bolted fault could occur if 

there were a roof fault which took the trolley wire down onto the 

rail, or a jackknifed piece of equipment into the wire could also 

be touching the rail and creating a short circuit (Tr. 296). 

Mro Cooper explained how a load drop test is conducted in 

order to nset the thumb wheels on the rectifier" with the 

appropriate overcurrent amps setting (Tr. 296-299). Referring to 

the load drop tests conducted within a month prior to the 

issuance of the citation by Mr. Brown, Mr. Cooper stated that the 

load drop measured by the respondent was 3,779 amps, and the 

rectifier was set at 2,834 amps. Mr. Brown's test showed a short 

circuit of 2,965 amps, and a 75 percent setting would be 

2,224 amps. Since Mr. Brown's test indicated an available fault 

current of 2,965 amps, and since the respondent's system was set 

on 2,834 amps, Mr. Cooper concluded that the mine setting was 

under the available short circuit current, and that any bolted 

fault would have been recognized and the relay would have tripped 

971 
"as soon as we passed the 2,834" (Tr. 300). He confirmed that 

certain factors could ~ff ect a load drop test by changes which 

occur to the resistance of the system, and the resistance could 

be affected by atmospheric conditions, the mechanical integrity 

of the "fish plates" used to join the rails together, and the 

electrical connections in these devices (Tr. 302). 

Mr. Cooper stated that during his years at the Meigs 

Division, his standard practice and instructions to the 

electrical department was to set the overcurrent protection at 

15 percent below the indicated short circuit current values, and 

that this was accepted by the local mine inspectors. This 

instruction was in compliance with section 75.1001, and although 

the standard allowed a plus or minus of 15 percent of indicated 

value, his policy was to set the trip protection devices at the 

lower side to insure a margin of safety in the event of any 

loosened connections or if the system resistance increased (Tr. 

304). He explained the computation for the trip device setting 

made by the respondent, and he concluded that under the "worse 

case scenario," at the setting of 2,834, which was in the middle 

of the allowable setting under section 75.1001-l(b), the circuit 

device would have tripped before reaching the 2,965 setting 

established by Mr. Brown's test (Tr. 305). 

Mr. Cooper was of the opinion that the safeguard notice in 

question is not valid because section 75.1001-l{b) establishes 

the range of acceptable rectifier tripping settings for 

overcurrent protection, and even without a safeguard, the thumb 

wheel rectifier settings must comply with this standard. He did 

not believe that there was any need for any additional 75 percent 

setting and stated that "I don't know why 75 percent is some 

magical number or where it came from" (Tr. 306). He confirmed 

that the mandatory standard section in question provides for load 

drop tests every 6 months to measure the system resistance, and 

this is the only way to validly establish this. He confirmed 

that he conducts such tests on a more frequent basis, and the 

trip relay is set to trip within plus or minus 15 percent of the 

indicated load drop value. He believed that the mine was in 

compliance with section 75.1001-l(b) because the rectifier 

settings were essentially at the mid-point of the regulatory 

range, and it would have tripped at the same level. He did not 

believe that any injury would have occurred because the rectifier 

trip setting was at 2,834 amps (Tr. 306-309). 

Mr. Cooper confirmed that he was unaware of any injury or 

illness to any miner attributable to the Martinka Mine trolley 

system, or any reportable mine fire associated with the system 

short circuit protection (Tr. 309). The cited condition was 

abated "by setting our thumb wheeling setting to the 75 percent 

setting of 2,965 amperes, which was the 2,224 •.. it was 

immediately abated by reducing our trip current setting," which 

then complied with the 75 percent safeguard. In his opinion, the 

972 
mine was already in compliance with section 75.1001-l{b) {Tr. 

310). 

On cross-examination, Mr. Cooper confirmed that although 

other safeguards were issued at the Meigs Mines, none of them 

pertained to the 75 percent short circuit protection setting for 

the trolley system. He further confirmed that he was not working 

at the Martinka Mine when the 1983 safeguard notice was issued, 

and he did not observe the conditions which prompted Mr. Fetty to 

issue it (Tr. 311). He explained that an "arcing fault" could 

occur where there is no "dead metal on metal contact" and current 

is jumping across an air gap, creating a spark or an arc. Such 

an event could occur on the trolley system by poor connections, 

or by damaged or open "knifeblades," but he has seen very few 

actual arcing faults. He confirmed that the trolley wire hangers 

have faulted and grounded and could cause an arc for a brief 

period of time. However, it is unlikely that such an arc would 

occur at the roof because the wires are secured on insulators, 

but it could occur on the hangers connected to metal arches and 

to the rail (Tr. 312-313). 

Mr. Cooper stated that his "worse case scenarion testimony 

pertained to voltage faults, and not arcing faults, and that it 

is difficult to measure or simulate arcing faults. He confirmed 

that wood is used for timbering and cribbing, but that the mine 

roof is not generally beamed with wooden posts or timbers (Tr. 

314) 0 

In response to further questions, Mr. Cooper stated that the 

"overcurrent protection11 referred to in section 75.1001, in this 

case is the relay incorporated inside the rectifier and it senses 

the current that is being pulled from the rectifier at all times. 

After making a load drop test, an inspector would then take 

75 percent of that result to establish the required tripping 

setting pursuant to the safeguard notice. In the absence of the 

safeguard, the setting could be plus or minus the results of the 

load drop test formula (Tr. 315-317). 

Mr. Cooper stated that the "testing language" found in 

section 75.1001-l(b), specifically the phrase "calibration of 

such devices shall include adjustments of all associated relays 

to plus or minus 15 percent" is intended to refer to the setting 

of the rectifier trip device. If this phrase were interpreted to 

apply only to the calibration of the testing device, there would 

be no restrictions as to settings of the rectifier, in the 

absence of a safeguard. Since section 75.1001, makes no 

reference to any required specific setting, he has always 

understood section 75.1001-1 to require a setting of plus or 

minus 15 percent of the indicated value, namely, the load drop 

results. He agreed that subsection (a) of section 75.1001-1, 

only requires circuit interrupting devices, and does not mention 

setting percentages or how the devices are to be tested or set, 

973 
and that subsection (b) establishes the calibration frequency and 

the degree to which the circuit interrupting devices will be set 

or activated (Tr. 320). 

MSHA's Arguments 

MSHA asserts that the plain wording of section 314(b) of the 

Act evidences Congress' intent that MSHA inspectors have broad 

authority to issue safeguards relative to the transportation of 

men and materials. MSHA points out that the instant case does 

not involve a "mine-by-mine" criteria-based safeguard such as 

those provided for in section 75.1403-2 through 75.1403-11, and 

that the safeguard issued by Inspector Fetty is based on the 

"other safeguards may be required" language found in section 

75.1403-l(a). MSHA maintains that the only specific limitation 

placed by Congress on the "other safeguards" language found in 

section 314(b) is that they address hazards relating to the 

transportation of men and materials, and that an inspector's use 

of such safeguards are not restricted to only those transportation hazards which are mine-unique--i.e., hazards which 

generally do not exis.,ts at other mines. 

MSHA takes the position that Judge Weisberger's decision in 

Secretary of Labor v. Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2007 (October 1989), invalidating a safeguard notice because it 

was not mine specific and not promulgated pursuant to the 

rulemaking provisions found in section 101 of the Act is 

incorrect. In support of this conclusion, MSHA argues that 

section 314(b) does not require MSHA to engage in notice and 

comment rulemaking before issuing a safeguard of general 

applicability. By choosing not to place safeguards under 

section 101 rulemaking, and allowing an individual inspector to 

issue safeguards on a mine-by-mine basis, MSHA concludes that 

Congress made a deliberate choice in permitting a more informal, 

and flexible approach for identifying and remedying mine 

transportation hazards. MSHA further concludes that to hold that 

safeguards which address specific hazards at a mine are invalid 

solely because similar hazards exist at other mines would be to 

preclude an inspector from issuing safeguards designed to remedy 

transportation hazards, no matter how obvious or dangerous the 

hazard, and regardless of the lack of care exercised by the 

operator 1 if that hazard exists at other mines. MSHA believes 

that had Congress intended this result, it would not have written 

section 314(b) as broadly as it did and it would have placed the 11 other safeguards" provision where Judge Weisberger did in 

Rochester & Pittsburgh Coal Co., i.e., in section 101. 

Citing the Commission's decision in Southern Ohio Coal Co., 

7 FMSHRC 509, 512 (April 1985), MSHA asserts that at most, a 

safeguard need only identify the nature of the hazard at which it 

is directed and the conduct required of the operator to remedy 

the hazard. In the instant case, MSHA believes that the 

974 
safeguard notice issued by Inspector Fetty meets these 

requirements in that it states that the hazard presented concerns 

arcing faults which will not deenergize the circuit, and that the 

conduct required of the operator is that all circuit interrupting 

devices be set at 75% of the bolted short circuit current 

available. MSHA further points out that both Inspector Fetty and 

Brown testified that the language found in the safeguard notice 

would be readily understandable to a trained electrician who is 

knowledgeable of trolley systems. 

MSHA concludes that the conditions cited by Inspector Brown 

clearly fit within even the narrowest construction of the 

language of the safeguard issued by Inspector Fetty. MSHA points 

out that Mr. Brown cited the respondent because the short circuit 

protection for the trolley system outby the #30 block of the 

18 Left Section was not in compliance with the 75% safeguard, and 

he obviously felt that the safeguard applied to this situation. 

Further, Mr. Fetty reviewed Mr. Brown's citation and agreed that 

the conditions cited violated the requirements of the safeguard. 

Under these circumstances, MSHA concludes that the safeguard was 

validly issued and in force when Mr. Brown issued his citation, 

and that they were both valid. 

MSHA asserts that Mr. Fetty's safeguard addresses mine 

hazards specific to the Martinka No. 1 Mine and is valid even 

under the strict test set forth in Rochester & Pittsburgh Coal 

Co., supra. In support of this conclusion, MSHA points to the 

testimony of Mr. Fetty concerning the conditions which he 

observed at the mine when he issued the safeguard. MSHA asserts 

that these conditions include combustible head coal and wooden 

structures above the trolley wires, with little or no clearance 

between the trolley wire and mine roof (Tr. 234, 280), grounded 

metal support arches which are in close proximity to both the 

trolley wire and the combustible materials over the trolley wire, 

and combustible materials and metal arches contacting the trolley 

wire at times due to roof falls, sagging roof, and accidents 

involving the track haulage equipment (Tr. 255, 276). Mr. Fetty 

also noted "an ongoing problem" regarding the trolley system 

short circuit protection (Tr. 231-232, 243, 276). 

MSHA further asserts that Mr. Fetty testified that the 

Martinka No. 1 Mine is the only mine in his area that has the 

strata and roof conditions it has (Tr. 280), including head coal 

and wooden structures in close proximity above the trolley wire 

(Tr. 280-281). MSHA also makes reference to Mr. Petty's 

testimony concerning "unique repeated and frequent violations and 

other problems" with the trolley system which he does not have at 

other mines, the fact that he issued the safeguard in part 

because of a. violation concerning a "burnt up line switch", 

(Tr. 248, 233, 276), and his statement that he did not find this 

same combination of conditions in any other mine he had inspected 

(Tr. 233, 248, 276-277). 

975 
MSHA maintains that the disputed safeguard does not "impose 

general requirements of a variety well-suited to all or nearly 

all coal mines ..• ", and that the evidence and testimony in this 

case clearly shows that only a small percentage of coal mines in 

MSHA District 3 have a safeguard similar to the one issued by 

Inspector Fetty. MSHA points out that only 11 of the 

approximately 130-140 mines in the district are under a safeguard 

notice similar to the one issued by Mr. Fetty, and that the 

respondent's own witness (Cooper) admitted that there are "many, 

man mines in this country that do not operate under a safeguard 

of this type" (Tr. 318-319). MSHA also points out that only 11 

of the approximately 28 to 30 mines in the district which utilize 

trolley wire systems have a safeguard which was issued on a mineby-mine basis due to specific conditions noted at those mines 

(Tr. 177-178, 201, 238-240). MSHA points to the fact that these 

safeguards were issued over a large period of time, beginning in 

1983, and ending in 1990, and that the wide disparity in dates 

tends to indicate that each safeguard was issued due to 

particular circumstances arising in each mine. Finally, based on 

these numbers, MSHA concludes that it seems clear that no MSHA 

district wide policy exists ~equiring such a safeguard at all 

mines or even at mines with trolley systems. 

MSHA maintains that the contested safeguard is not preempted 

by mandatory safety standard section 75.1001-l(b), because the 

safeguard and the standard refer to different concerns. MSHA 

asserts that the safeguard requires that the short circuit 

protection on the trolley system be set at 75% of the maximum 

short circuit current available, while the regulation requires 

that the "calibration of such devices shall include adjustment of 

all associated relays to + - 15 percent of the indicated value". 

In short, MSHA concludes that the safeguard refers to the value 

at which the thumb wheel on the rectifiers must be set (or the 

indicated value), and that section 75.1001-1, refers to the 

calibration of the rectifier or the amount of mechanical error 

allowed at that setting. Since the calibration refers to the 

amount of error present in the setting mechanism of the rectifier 

and has no affect on what setting is required by the safeguard, 

MSHA concludes that the regulation does not preempt the 

safeguard. 

MSHA concludes that the uncontradicted testimony of 

Inspector Brown establishes that the respondent violated the 

requirements of the safeguard when it allowed the short circuit 

protection in question to be set at 100 percent of the maximum 

short circuit current available. MSHA further concludes that the 

violation was significant and substantial within the guidelines 

established in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). 

In support of this conclusion, MSHA asserts that a discrete 

safety hazard was contributed to by the violation in that the 

failure to properly set the short circuit protection presented a 

fire hazard (Tr. 169), and that the uncontradicted testimony of 

976 
Inspectors Brown and Fetty show that a reasonable likelihood 

existed that a fire would occur at the Martinka No. 1 Mine in the 

course of normal mining operations if this violation was left 

uncorrected, and that this fire would result in reasonably 

serious injuries to at least one miner. 

MSHA points out that Inspector Brown testified that an 

arcing fault was likely to' occur along the trolley wire between 

the wire, the metal roof support arches, and the metal wire 

hangers in close proximity near the roof of the mine (Tr. 57, 58, 

167 1 169, 173-174), and that such an arcing fault would not 

deenergize the circuit with the rectifiers set at 100% (Tr. 172, 

175). MSHA further points out that Inspectors Brown and Fetty 

testified that flame or arc from the fault would likely ignite 

the combustible materials including wood and head coal on the 

roof of the Martinka No. 1 Mine, because the combustible 

materials are in close proximity to, and at times even touching, 

the trolley wire (Tr. 50-51, 57-58, 167, 169, 175, 202, 234, 

280). Both inspectors also testified that the mine fire 

resulting from this ignition is reasonably likely to result in 

serious injuries, including burns and smoke inhalation, to at 

least one miner (Tr. 58, 168-169, 234; Exhibit P-9). 

Respondent's Arguments 

During the course of the hearing, the respondent argued that 

existing mandatory safety standard section 75.1001, adequately 

covers the short circuit hazard situation which prompted 

Mr. Fetty to issue the disputed 1983 safeguard notice. The 

respondent took the position that since an existing mandatory 

standard has already been duly promulgated after rule-making 

pursuant to the Act, MSHA is without authority to refine or 

modify the existing standard by issuing a safeguard. Respondent 

maintained that by requiring it to adhere to the safeguard, MSHA 

is attempting to hold it to a higher standard than that required 

by the existing applicable standard. Respondent asserted that in 

order to hold it to a higher standard of care and compliance than 

that required by the existing standard, MSHA must do so through 

rulemaking, rather than simply issuing a safeguard that 

effectively imposes a greater burden than that required by the 

existing standard (Tr. 208-212). 

The respondent further argued that since it was in 

compliance with the existing standard as duly promulgated by 

MSHA's rulemakers, MSHA should be preempted from enforcing the 

safeguard issued by Mr. Fetty. Respondent argued that it has 

been adversely affected by the safeguard because it is forced to 

deal with two different requirements for maintaining short 

circuit protection on its track trolley system. The respondent 

pointed out that its rectifier thumb wheel settings were 

correctly fixed pursuant to section 75.1001, since the settings 

fell within the plus or minus 15 percent requirement found in 

977 
section 75.1001-l(b), and that its track equipment would not 

"drop out" at this higher short circuit protection level. 

However, by lowering the level to 75% pursuant to the safeguard, 

the respondent pointed out that the equipment would "drop out" 

(Tr. 264-265). 

In its post-hearing brief, the respondent argues that the 

safeguard is invalid because section 75.1403 does not 

specifically provide for short circuit protection on the cited DC 

trolley system; that section 75.1000, which is found in Subpart K 

of MSHA's mandatory regulatory standards, specifically 

incorporates "Trolley Wires and Trolley Feeder Wires"; that the 

safeguard is preempted by section 75.1001-l(b), which 

specifically addresses trolley wire overcurrent protection; and 

that the safeguard does to meet the guidelines discussed by chief 

Judge Merlin in his decision of March 29, 1982, in United States 

Steel Mining Co., Inc. 4 FMSHRC 526, 530 {March 1982). 

The respondent asserts that it is undisputed that on the day 

Mr. Brown issued his citation, the mine's previous load drop test 

was in compliance with the plus or minus fifteen percent of the 

indicated value according to section 75.1001-l(b), and that the 

trip setting was set lower than the fault current, and set safely 

(Tr. 165, 308). The respondent points out that although 

Inspector Brown agreed that the respondent was in compliance with 

section 75.1001, he nonetheless believed that the respondent was 

not in compliance with the 75 percent safeguard, and issued the 

citation for this reason (Tr. 165). The respondent asserts that 

according to Mr. Brown's interpretation, sections 75.1001 and 

75.1001-l(b), refer to "the calibration of the interrupting 

device", but that in the event the short circuit is over 100 

percent Mr. Brown would cite a violation of section 75.1001-l(b), 

rather than the safeguard. Respondent points out that although 

Mro Brown is an electrical inspector he does not hold an 

electrical engineering degree and interprets the standard on the 

basis of his MSHA training" 

The respondent further points out that its electrical 

engineering expert Cooper is a magna cum laude graduate in 

electrical engineering 1 has taught this subject, and has 15 years 

of experience in electrical engineering. Mr. Cooper was of the 

opinion that section 75.1001-l(b), specifically addresses the DC 

trolley system short circuit protection, and he confirmed that 

during his 15-year tenure with the respondent it has been a 

standard practice to set the overcurrent protection at minus 15 

percent below the indicated short circuit current values in 

compliance with section 75.1001-l(b). Mr. Cooper also testified 

that section 75.1001-l(b), establishes the acceptable rectifier 

tripping ranges for the coal mining industry. Under the 

circumstances, he believed that the additional restriction 

imposed by the arbitrary 75 percent safeguard is invalid and 

preempted by section 75.1001-l(b). 

978 
Respondent maintains that MSHA has failed to establish that 

the alleged violation was significant and substantial in that 

Inspectors Fetty and Brown, as corroborated by Mr. Cooper, both 

testified that there were no reportable mine fires at the mine, 

nor were there any injuries or accidents relating to any such 

fires. 

~espondent further argues that there is no substantive 

evidence in this case to establish that the Martinka No. 1 Mine 

has any mine-specific or peculiar hazards relating to the 

transportation of men and materials, and that the alleged 

conditions described by Inspector Fetty were not mine-specific to 

the mine and were present in other mines. The respondent does 

not dispute the fact that section 314(b) of the Act grants the 

Secretary a unique authority to create what are in effect 

mandatory safety standards on a mine-by-mine basis without 

resorting to otherwise required rulemaking procedures. However, 

in the instant case, respondent takes the position that the 

conditions which MSHA claims justified the issuance of the 

contested safeguard in question are specifically addressed by 

mandatory safety stangard 75.1001 and§ 75.1001-l(b), and are not 

mine specific. Respondent further argues that the safeguard is 

of general application and was not issued to minimize specific 

mine hazards connected with the transportation of men and 

material and that the safeguard may not serve to hold it to a 

higher standard than that required by section 75.1001-l{b). 

Findings and Conclusions 

30 C.F.R. § 75.1403 repeats section 314(b) of the Act and 

provides as follows: "other safeguards adequate, in the judgment 

of an authorized representative of the Secretary, to minimize 

hazards with respect to transportation of men and materials shall 

be provided vu 0 

Section 7501403-1 provides: 

(a) Sections 75.1403-2 through 75.1403-11 set out the 

criteria by which an authorized representative of the 

Secretary will be guided in requiring other safeguards 

on a mine-by-mine basis under section 75.1403. Other 

safeguards may be required. 

(b) The authorized representative of the Secretary 

shall in writing advise the operator of a specific 

safeguard which is required pursuant to section 75.1403 

and shall fix a time in which the operator shall 

provide and thereafter maintain such safeguard. If the 

safeguard is not provided within the time fixed and if 

it is not maintained thereafter, a notice shall be 

issued to the operator pursuant to section 104 of the 

Act. 

979 
(c) Nothing in the sections in the section 75.1403 

series in this Subpart o precludes the issuance of a 

withdrawal order because of imminent danger. 

The Commission has examined the safeguard provisions found 

in section 314(b) of the Act and 30 C.F.R. 75.1403, and has noted 

with approval that the broad language of this provision 

"manifests a legislative purpose to guard against all hazards 

attendant upon haulage and transportation in coal mining". Jim 

Walters Resources, Inc., 7 FMSHRC 493, 496 (April 1985). 

Although the mandatory safety standards found in Title 30, Code 

of Federal Regulations, normally are developed and promulgated in 

accordance with section 101 of the Mine Act and the rule-making 

provisions contained in the Administrative Procedure Act, 

5 u.s.c. 551 ., the Commission has observed that section 

314(b) of the Act grants the Secretary extraordinary authority to 

essentially create mandatory safety standards on a mine-by-mine 

basis without resorting to the normal rule-making procedures, and 

it has approved the issuance of safeguards without rule-making 

for a particular mine, Southern Ohio Coal Co., 7 FMSHRC 509 

(april 1985). However, the'coitunission went on to state as 

follows at 7 FMSHRC 512: 

* * * We believe that in order to effectuate its 

purpose properly, the exercise of this unusually broad 

grant of regulatory power must be bounded by a rule of 

interpretation more restrained than that accorded 

promulgated standards. Thus, we hold that a safeguard 

notice must identify with specificity the nature of the 

hazard at which it is directed and the conduct required 

of the operator to remedy such hazard. We further hold 

that in interpreting a safeguard a narrow construction 

of the terms of the safeguard and its intended reach is 

required" , ~v Consolidation Coal Co.", 2 FMSHRC 

202lv 2035 (July 1980) (ALJ)' Jim Walter Resources 1 1 

FMSHRC 1317v 1327-28 (September 1979) (ALJ)" See also 

Secretary's Brief to the commission at 11 n. 1. 

("Accordingly, while the language of safeguard notices 

should be construed, the Secretary's issuance 

authority must be interpreted broadly"). 

It seems clear to me from several Commission decisions that 

adequately written safeguards are mandatory standards or 

requirements which are enforceable on a mine-by-mine basis. See: 

Southern Ohio Coal Company, 7 FMSHRC 509 (April 1985); U.S. steel 

Mining Company, Inc., 4 FMSHRC 526, 529-530 (March 1982); Jim 

Walter Resources, Inc., 6 FMSHRC 1815 (July 1984); Mathies Coal 

Company, 4 FMSHRC 1111 (June 1982); Jim Walter Resources, Inc., 8 

FMSHRC 220 (February 1986). 

Several Commission Judges have invalidated citations and the 

supporting safeguard notices on the ground that the safeguards 

980 
were of a general, rather than mine-specific, application. See: 

Rochester & Pittsburgh Coal Co., 11 FMSHRC 2007 (October 1989) 

(Judge Weisberger); Southern Ohio coal Company, 10 FMSHRC 1564 

(November 1988) (Judge Weisberger); Beth Energy Mines, Inc., 

11 FMSHRC 942 (May 1989) (Judge Melick); Southern Ohio Coal 

Company, 11 FMSHRC 1991 (October 1989) (Judge Maurer) ; Mettiki 

Coal Corporation, 12 FMSHRC 92 (January 1990) (Judge Fauver); 

u.s. Steel Mining company,' Inc., 4 FMSHRC 526 (March 1982) {Chief 

Judge Merlin) • The "mine specific" issue in these cases is now 

pending on appeal before the Commission for decision in the 

October 1989 Rochester & Pittsburgh Coal Co., and Southern Ohio 

Coal Company, decisions rendered by Judge Weisberger and Judge 

Maurer. 

In the case at hand, the respondent is charged with a 

violation of section 75.1403, for failing to adhere to the 

requirements of a safeguard notice issued by Inspector Fetty on 

November 14, 1983. The safeguard states as follows: 

The automatic circuit interrupting device installed on 

the 300 volt DC trolley track haulage system between 

the track haulage switch and spad station 20 + oo was 

not set to deenergize the trolley system during arcing 

fault. This mine has head coal incorporating 

combustible material and the construction of steel roof 

support structure. 

All protecting circuit interrupting devices installed 

on the 300 volt DC trolley haulage system shall be 

provided with devices to detect short circuits which 

are at least 75 percent of the minimum bolted short 

circuit current available as determined by periodic 

voltage current (load drop) test. 

The safeguard in question required that the automatic 

circuit interrupting devices installed on the mine 300 volt DC 

trolley track haulage system to be provided with devices to 

detect and interrupt short circuits which are at least 75 percent 

of the minimum bolted short circuit current available as 

determined by periodic voltage/current (load drop) tests. 

Inspector Brown testified that he conducted a load drop test on 

the cited trolley system circuit during the course of his 

electrical inspection on May 1, 1990, and found that the fault 

protection on one of the rectifier relays was set "nearly at 100 

percent setting or just a little bit below 100 percent setting". 

Since this circuit protection setting exceeded the 75% 

requirement mandated by 

Mr. Petty's previously issued safeguard notice, Mr. Brown issued 

the citation •. 

Mr. Fetty testified that as a result of accidents and 

fatalities associated with mine fires on trolley circuits, 

district manager Ronald Keaton authorized the issuance of 

981 
safeguards, on a mine-by-mine basis, requiring short circuit 

protection settings at 75% of the settings required by 

section 75.1001. Mr. Fetty confirmed that when he issued the 

1983 safeguard he relied in part on certain information and 

knowledge which he obtained at safety seminars and conferences 

concerning trolley wire system accidents and fires which occurred 

in mines in general. He believed that a way to prevent these 

incidents at the Martinka Mine was to reduce the short circuit 

protection requirements found in section 75.1001-1 to 75 percent 

(Tr. 250, 254). He conceded that the reports of prior accidents 

and fires which he had reviewed concerned incidents which had 

taken place "country wide" in mines other than the Martinka Mine, 

and he was not aware of any reportable mine fires at the Martinka 

Mine (Tr. 254) . 

Mr. Fetty confirmed that he also based the safeguard in part 

on the "numerous problems at that mine" with respect to 

section 75.1001-1 violations associated with short circuit 

protection for the trolley service. He stated that during 

electrical spot inspections which he conducted in September and 

November, 1983, he fqund that certain rectifier short circuit 

devices were set at approximately 100% above the settings 

required by mandatory safety standard 30 C.F.R. 75.1001-1, and 

after issuing two section 104(a) citations for these violations, 

he concluded that he was justified in issuing the safeguard 

requiring all future rectifier settings to be set at 75 percent. 

When asked why he issued a safeguard when non-compliance was 

already addressed by promulgated standard section 75.1001-1, 

Mr. Fetty responded as follows (Tr. 266): 

A. Because the people in our meetings, my supervisor, 

other people, prudent engineers, which I'm not, I'm not 

an engineer 1 they felt that this safety factor of 25 

percent would greatly be in aid and assistance to the 

health and safety of the miners and to prevent fires in 

the coal mines and that 1 s why they came up and went 

with the 75 percent. 

Mr. Fetty identified the prior violations of section 

75.1001-1, as the specific "mine conditions" which prompted him 

to issue the safeguard (Tr. 232-234). However, he conceded that 

any continued non-compliance problems with respect to 

section 75.1001-1, could have been addressed by issuing 

section 104(d) {l) and (d) (2) citations and orders (Tr. 252). In 

my view, simply because an inspector finds repeated violations of 

a mandatory safety standard does not ipso justify or 

warrant the issuance of a safeguard. If this were the case, an 

inspector could effectively amend any existing trolley wire 

standard found in Subpart K of the regulations simply by issuing 

a safeguard based on one or more prior violations of these 

standards. 

982 
Mr. Fetty also believed that an unplanned roof fall or a 

piece of mining equipment contacting a trolley wire were 

additional "hazards" which could have occurred in the area where 

he issued a citation at the same time the safeguard was issued 

(Tr. 234). He believed that these conditions could result in a 

mine fire and that the likely source of the fire would be the 

head coal or wooden boards located above the trolley wire to keep 

rock and other debris from' falling on the track haulage. 

However, he indicated that these wooden head boards would only be 

at "some locations" and not throughout the mine (Tr. 234). 

Mr. Fetty also alluded to violations of other standards, 

such as section 75.516, which prohibits energized trolley wire 

contacting combustible wooden materials, as examples of other 

"problems" he found at the mine at the time he issued the 

safeguard. Although conceding that these "problems" occurred at 

other mines, he believed that "they repeated and occurred more 

frequently in those days at Martinka Mine more than they did 

anywhere else", and he felt justified in issuing the safeguard 

(Tr. 247-248; 253). 

Mr. Fetty agreed~that roof falls, dislodged roof arches, and 

DC trolley accidents have occurred at other mines, and he 

conceded that he issued the safeguard as a preventive measure to 

preclude such occurrences at the Martinka Mine (Tr. 249-251; 

255). However, I find no credible evidence to establish the 

existence of any roof falls, dislodged roof arches, or trolley 

accidents affecting the transportation of men or equipment at the 

Martinka Mine at the time the safeguard was issued. Indeed, Mr. 

Fetty confirmed that his prior knowledge of any accidents or 

other such incidents pertained to mines other than the Martinka 

Mine (Tr. 251). 

Mro Fetty alluded to one non-reportable fire which he and 

Inspector Brown found when a motorman caused some combustibles to 

ignite. Mro Brown confirmed that the fire occurred two or three 

years ago, well after the safeguard was issued by Mr. Fetty, and 

that it was quickly extinguished and was not considered a 

reportable fire (Tr. 169, 176, 192). Mr. Brown alluded to an 

additional "hearsay fire" at the mine, but no evidence was 

forthcoming to confirm or document this event. Further, although 

Mr. Brown indicated that he has observed 6 or 8 mine fires caused 

by arcing faults in the past 20 years, only one occurred at the 

Martinka Mine, and it was the non-reportable one which he and Mr. 

Fetty found (Tr. 176). Mr. Brown also mentioned an unspecified 

study which reported 22 accidents over a seven-year period which 

resulted in 11 or 12 lost time injuries and fatalities, but he 

confirmed that none of these incidents occurred at the Martinka 

Mine (Tr. 169, 191). 

Mr. Brown stated that MSHA's policy manual guidelines 

authorize the issuance of a safeguard if an inspector "should 

983 
find they have a problem at that mine that specifically addresses 

the conditions at the ·mine that have resulted or could result in 

a lost time accident" (Tr. 195). Mr. Brown confirmed that the 

safeguard in question came from an MSHA report which concluded 

that arcing faults could occur and not open any circuit 

interrupting devices {Tr. 172). However, the report was not 

further identified or offered in evidence, and Mr. Brown 

"guessed" that Mr. Fetty issued the safeguard after reviewing 

"the study that was done on the arcing faults" (Tr. 200). 

Respondent's maintenance superintendent Cooper, a magna cum 

laude graduate electrical engineer, was of the opinion that the 

safeguard issued by Mr. Fetty is invalid because section 75.1001-

l(b), properly and appropriately establishes a range of 

acceptable rectifier settings for overcurrent protection on the 

mine trolley system (Tr. 306). Mr. Cooper further testified that 

during his 15 years of employment with the respondent he was not 

aware of any reportable mine fires or injuries associated with 

the short circuit protection on the trolley system (Tr. 309). He 

confirmed that the trolley wires are supported by insulated belt 

hangers suspended from metal 'hangers which are attached to metal 

pipes anchored into the mine roof (Tr. 313). He also confirmed 

that as a general practice wooden posts or timbers are not used 

as beams to support the roof (Tr. 314). 

Mr. Cooper further testified that the respondent's Meigs No. 

31 and 2 mines, which are also in the same district as the 

Martinka Mine, and which have underground trolley systems, have 

never been subject to the kind of safeguard issue by Mr. Fetty 

and that those mines are subject to the load drop test and short 

circuit protection requirements found in section 75.1001-1 

(Tr. 310-311). 

I agree with the aforementioned decisions of the Commission 

judges who concluded that a safeguard notice must be minespecific and based on hazardous conditions peculiar or unique to 

the mine where it is issued and enforced. On the facts of this 

case, and after careful review of Inspector Petty's testimony, I 

cannot conclude that MSHA has established that the safeguard 

issued by Mr. Fetty was based on any mine conditions or hazards 

peculiar to the Martinka No. 1 Mine, or conditions that could not 

have been addressed or remedied by reliance on other existing 

standards. I am convinced that Mr. Fetty issued the safeguard as 

a general preventive measure to address possible arcing faults 

which may or may not occur, rather than to address any unique or 

inherently hazardous mine conditions, and Mr. Fetty tacitly 

conceded that this was the case. 

It seems obvious to me that Mr. Fetty was also influenced by 

the fact that the Martinka Mine had received citations or 

violations of sections 75.1001-1, and section 75.516, the 

standards applicable to trolley wire short circuit protection and 

984 
power wires contacting combustible materials, and he admitted 

that this was the case when he identified these violations as the 

specific "mine conditions 11 which prompted him to issue the 

safeguard. However, as noted earlier, I do not believe that such 

prior violations can justify the issuance of a safeguard. Those 

particular standards address the hazardous conditions which 

resulted in the issuance of the violations, and coupled with the 

civil penalty assessments which followed, provided an adequate 

enforcement tool for MSHA. In addition, as Mr. Fetty readily 

conceded, an inspector may also resort to the use of 

section 104(d) citations and orders in appropriate cases to deal 

with a recidivist mine operator. 

In addition to the existing requirements found in 

sections 75.516, and 75.1001.1, I take note of the fact that 

section 75.1003 requires the insulation and guarding of trolley 

wires at certain mine locations, and that sections 75.1003-1 and 

75.1003-2, require certain precautions and procedures to prevent 

equipment being moved along haulageways from contacting trolley 

wires, and to insure that proper short circuit protection exists 

on the associated aut-0matic circuit interrupting devices. I also 

take note of the fact that MSHA's Section 75.1003 Policy Manual 

guidelines require trolley wires to be guarded with wood, 

plastic, or other nonductive material. 

Mandatory safety standard 30 C.F.R. § 75.1001 states as 

follows: "Trolley wires and trolley feeder wires shall be 

provided with overcurrent protection". 

Mandatory safety standard 30 C.F.R. § 75.1001-1, states in 

relevant part as follows: 

(a) Automatic circuit interrupting devices that will 

deenergize the affected circuit upon occurrence of a 

short circuit at any point in the system will meet the 

requirements of § 75.1001. 

(b) Automatic circuit interrupting devices described 

in paragraph (a) of this section shall be tested and 

calibrated at intervals not to exceed six months. 

Testing of such devices shall include passing the 

necessary amount of electric current through the device 

to cause activation. Calibration of such devices shall 

include adjustment of all associated relays to ±15 

percent of the indicated value. An authorized 

representative of the Secretary may require additional 

testing or calibration of these devices. 

I find merit in the respondent's contention that existing 

mand~tory section 75.1001-1, adequately covers the short circuit 

protection requirements for the mine trolley wire system. Based 

on ttte testimony of Inspectors Brown and Fetty, and the credible 

985 
testimony of respondent's witness Cooper, I conclude and find 

that MSHA's contention that section 75.1001-1 and the safeguard 

issued by Mr. Fetty address different concerns is not well taken 

and it is rejected. Based on the evidence and testimony of the 

witnesses, I conclude that section 75.1001-1, addresses short 

circuit protection for trolley wires, and copies of some of the 

prior citations issued for violations of this section 

specifically refer to improper "thumbwheel" settings for the 

cited trolley wire circuit interrupting devices (Exhibit R-2B). 

The parties stipulated that at the 100 percent short circuit 

protection setting found by Inspector Brown, the respondent was 

in compliance with the plus or minus 15 percent requirement found 

in section 75.1001-l(b), but that it was not in compliance with 

the 75 percent safeguard issued by Inspector Fetty (Tr. 217). 

Mr. Fetty confirmed that those mines which do not have the 

safeguard are required to comply with sections 75.1001 and 

75.1001-1, and he indicated that as long as a mine is in 

compliance with these standards there is no reason for any 

safeguard (Tr. 259, 2fa7). 

MSHA's section 75.1001-1 Program Policy Manual guidelines, 

July 1, 1988, at page 88 contain the following statement: 

The setting of an automatic circuit-interrupting device 

should not exceed 75 percent of the minimum available 

short-circuit current in the protected circuit to 

compensate for inaccuracies in the setting and the 

voltage drop across arcing faults. This safety factor 

is consistent with accepted engineering practice; 

however, in determining whether a violation of this 

Section exists, the safety factor shall not be used. 

MSHA's section 75.1001-1, policy guidelines language with 

respect to the 75 percent setting of an automatic circuitinterrupting device is practically identical to the language 

found in Mr. Fetty's safeguard notice. Although the statement 

goes on to state that the 75 percent setting is a safety factor 

consistent with accepted engineering practice, I find the 

admonition that such a safety factor should not be used in 

determining whether a violation exists to be inconsistent, and it 

remains unexplained. 

In view of the foregoing findings and conclusions, I 

conclude and find that the safeguard notice issued by Mr. Fetty 

was not based on any mine specific conditions or hazards, and 

that any transportation hazards associated with the trolley wires 

which may have existed in the mine were adequately covered by 

existing mandatory safety standard sections 75.1001 and 75.1001-

1. Accordingly, I further conclude and find that the safeguard 

is not valid and IT IS VACATED. Since I have concluded that the 

safeguard is invalid, the citation issued by Inspector Brown, 

986 
which is based on the safeguard, cannot stand, and it too IS 

VACATED. 

ORDER 

on the basis of the foregoing findings and conclusions, IT 

IS ORDERED THAT: 

1. Section 104(a) "S&S Citation No. 3118460, 

March 14, 1990, citing an alleged violation 

of 30 C.F.R. § 75.508 IS VACATED. 

2. Section 75.1403 safeguard Notice No. 2258189, 

issued on November 14, 1983, IS VACATED. 

3. Section 104{a) "S&S" Citation No. 3312067, 

May 1, 1990, citing an alleged violation of 

30 C.F.R. § 75.1403, IS VACATED. 

4. MSHA's proposed civil penalty assessments for 

the citations which have been vacated ARE 

DISMISSED. 

Distribution: 

Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of 

Labor, Ballston Towers #3, 4015 Wilson Blvd., Suite 516, 

Arlington, VA 22203 {Certified Mail) 

Rebecca Jo Zuleski, Esq., Furbee, Amos, Webb & Critchfield, 

Suite 4, 5000 Hampton Center 1 Morgantown, WV 26505 (Certified 

Mail) 

/ml 

987 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 21199\ 

HOMESTAKE MINING COMPANY, 

Contestant . . CONTEST PROCEEDING 

v. 

. . 

: 

: 

Docket No. CENT 90-108-RM 

Citation No. 3632346; 4/19/90 

SECRETARY OF LABOR, Mine I.D. 39-00055 

MINE SAFETY & HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

DECISION 

Homestake Lead Mine 

Before: Judge Lasher 

Respondent, MSHA seeks dismissal of this matter, and on 

May 30, 1991, has withdrawn its answer opposing the Notice of 

Contest in this matter. In so doing, it has specifically vacated 

the subject Citation, No. 3632346, by virtue of a "SUbsequent 

Action" dated May 30, 1991, stating: 

This citation is vacated at the direction of the 

Office of the Solicitor with the position that 

future enforcement of this standard at this mine 

site is not waived and enforcement action will 

continue, if necessary, after appropriate MSHA 

policy is established concerning the application of mandatory safety standard, 30 C.F.Ra 

§ 570110020 l 

In both its 11Notice of Vacation and Motion to Withdraw and 

Dismiss 11 filed by Fax on May 30, 1991, and its "Response in Opposition to Contestant's Motion for Declaratory Relief or in the 

.A.lternative to Dismiss with Prejudiceu" the Secretary of Labor 

(MSHA) indicates that its proposed withdrawal of prosecution of 

the citation does not constitute in any way a waiver of future 

enforcement actions (applications) under the subject safety 

standard at the subject mine site or any other mine site. 

l Section 57.11002 provides: 

Handrails and toeboards. 

Crossovers, elevated walkways, elevated ramps, 

and stairways shall be of substantial construction, provided with handrails, and maintained in 

good condition. Where necessary, toeboards shall 

be provided. 

988 
Within the 24-hour period after the Secretary issued its 

"Subsequent Action" and moved to withdraw its answer in this proceeding, Contestant Homestake Mining Company (Homestake) filed 

its "Motion for Declaratory Relief, etc." 2 It is apparent that 

when this latter motion was filed by Contestant, the exact terms 

of the MSHA "Subsequent Action" document were not known to it, 

nor was some of the thinking later reflected in MSHA's "Response 

in Opposition to Contestant's Motion for Declaratory Relief" 

within its knowledge. The question remains for resolution, however, whether MSHA's motion to withdraw its answer under Commission Procedural Rule 11 (29 C.F.R. 2700.11) or whether Contestant's responsive motion for declaratory relief should be granted. 

Contestant apparently seeks at this juncture to resolve 

whether it is vulnerable to future 30 C.F.R. § 57.11002 citations 

rather than acquiesce in MSHA's abandonment of its prosecution of 

the subject citation. 3 We note these facts. There is no allegation by Contestant, or other indication, that it took measures 

to abate the condition cited, or that MSHA issued any withdrawal 

order, including a Section 104 Cb) "failure to abate" order in 

this matter. 4 There is no indication .that Contestant Homestake 

is presently charged with a violation of 30 C.F.R. § 11002 in 

connection with the pertinent area of the mine referred to in 

Citation No. 3632346. 

2 

3 

This motion again makes various unilateral assertions of 

fact which would be in litigation should the matter proceed 

to hearing on the substantive merits of the issues raised by 

the violation charged in the Citation. Contestant's prior 

motion to dismiss and/or for summary decision was denied by 

my Order dated May 23u 1991 0 and to the extent that such 

ssues are raised again in its present motion for Declaratory Rel!ef u such motion is denied. 

It alleges~ "None of the elevated walkways, located around 

RBC 0 s (rotating biological concentrators) 0 at the water 

treatment plant were provided with handrails to prevent employees from falling to surfaces below. Walkway measurements varied from five feet to seven feet wide and the 

height varied from 20 inches to 43 inches .. " 

In its 9'Response in Opposition to Contestant's Motion "MSHA 

points out that "No undue abatement expense has occurred 

here since the abatement time has been extended for this 

citation." 

989 
Preliminarily, it is noted that the action of the Secretary 

in vacating the citation does not automatically moot the substantive issues extant in the contest proceeding by depriving the 

Commission of jurisdiction. Once a mine operator contests a citation before the Commission, the Secretary cannot by vacating 

the citation itself deprive the Commission of jurisdiction. 

Climax Molybdenum Company v. Secretary of Labor and Oil, Chemical 

and Atomic Workers' International Union, 2 FMSHRC 2748 (October 

1980). Motions by MSHA to vacate citations are granted only 

where adequate reasons to do so are present. Kocher Coal Co., 

4 FMSHRC 2123, 2124 {December 1985)1 Secretary v. Youghiogheny & 

Ohio Coal Company, 7 FMSHRC 200, 203 (February 1985). 5 As shown 

subsequentlyr MSHA has in apparent good faith presented such 

"adequate reasonso 11 

Likewise, Commission Procedural Rule 11, permitting "a 

party" to withdraw a pleading at any stage of a proceeding, is 

not absoluteu since such must be accompanied by the "approval of 

the Commission or the Judge." Thus, Commission discretion is 

invoked here by both rule and precedent. 

If, of course, Contestant is entitled to declaratory relief, 

such would constitute reason for not granting MSHA's motion to 

withdraw its answer and to vacate the citation. 

TUrning- now to Contestant's various contentions, we first 

take up its alternative plea to declaratory relief, i.e., "dismissal with prejudice." MSHA's initial motion, in seeking to 

withdraw its answer did not specifically deal with the concept of 

"with prejudice," but simply qualified the withdrawal to the 

extent of not waiving future enforcement of the safety standard. 

Howeverq in its Response in Opposition on May 31, the Solicitor 

clarifi its motion to withdraw by stating it "is intended to 

request a smissal with prejudice of the subject citation •• o o~ 

This would be the usual meaning attributable to the idea of dismissal th judice and I conclude that MSHA gs agreement not to 

seek future action on the subject citation is reasonable and a 

proper adjunct to its abandonment of the instant prosecution by 

withdrawal its answero Contestant does not specify if it has 

some other purpose in mind in seeking "dismissal with prejudiceqllll 

5 The ultimate determination to be made is whether "adequate 

reasonsn1 do exist, and/or whether Contestant is entitled 

to declaratory relief. 

990 
such as (1) enjoining MSHA from future use of Section 57.11002, 

or (2) preventing MSHA from applying this standard to the same 

mine area described in the subject Citation. Expanding "with 

prejudice" to these latter concepts would in effect be Ca> granting the Contestant's declaratory relief request (b) without benefit of due process, hearing, and normal adjudication processes. 

To the extent that Contestant's contention may be so intended, it 

is denied. 

The Commission, in Secretary of Labor v. Mid-Continent Resources, Inc., and UMWA, 12 FMSHRC 949 (May 1990), has provided a 

thorough and superbly-crafted statement of the principles governning invocation of declaratory relief, stating inter alia: 

The Commission has noted that "the primary 

purpose of declaratory relief is to save parties from unnecessarily acting upon their own 

view of the law." Beaver Creek, supra, 11 

FMSHRC at 2430, quoting Climax, supra, 2 FMSHRC 

at 2752. Additionally, for any grant of Commission declaratory rel·ief, the complainant must 

show that there is an actual, not moot, controversy under the Mine Act between the parties, 

that the issue as to which relief is sought is 

ripe for adjudication, and that the threat of injury to the complainant is real, not speculative. 

While the language of the first sentence of this holding is 

found applicable to this proceeding, it also could apply to the 

majority of the proceedings before the Commission. What is meant 

by it is a preamble or introductory statement setting forth the 

"purpose" in a grant of declaratory relief. The second sentence 

is the one which sets forth the prerequisite showing to be made 

by a contestant for actually obtaining declaratory relief. It is 

concluded that Contestant Homestake has not carried its burden of 

establishing any of these prerequisites in this mattero 

The Secretary CMSHA) on May 31 specified the reasons for 

withdrawal of the answer and its prosecution of the Citation: 

The Secretary vacated this citation because 

information obtained during discovery revealed 

various opinions of MSHA staff as to what constitutes an 11 elevated walkway or travelway11 under standard 30 C.F.R. § 57.11002. 6 The Secretary recognizes that MSHA policy relating to 01 elevated walkways" needs (to be) clarified and 

therefore decided that this citation should be 

vacated on that basis. This is similar to the 

"feasibility" question in the Climax Molybdenum 

Company, 2 FMSHRC 2748 (October 1980) at 2753. 

991 
e•• And, there is no 'substantial likelihood of recurrence of the claimed enforcement 

harm or the imminence of repeated injury' to 

the Contestant, Homestake Mining Company (Homestake). Mid-Continent Resources, Inc., 12 FMSHRC 

at 956. As indicated in MSHA's action to vacate, 

enforcement of mandatory safety standard 30 

c.F.R. § 57.11002 will continue after MSHA policy is established concerning the standard's 

applicatione No undue prejudice or harm will 

occur to Homestake because of this action to 

vacate. 

The Secretary's recognition of the need for clarifying its 

policy as to application of the standard and the fact that no 

subsequent enforcement of the standard as to the mine area described in Citation No. 3632346 has been initiated are found to 

be "adequate reasons" for the vacation of the Citation. 

Since the enforcement agency is re-evaluating its position 

wth respect to enforcement 6£ the standard and applying it to 

Contestant's aqueducts, it is first concluded that this issue is 

not ripe for adjudication. Contestant contends: "declaratory 

relief is appropriate because 30 C.F.R. § 57.11002 is unconstitutionally vague and, in this case, did not give fair notice that 

it was applicable. In short, Homestake faces a continuing legal 

dilemma in being forced to act at its peril in light of MSHA's 

inconsistent interpretation of this provision." Both these contentions are directly addressed by MSHA's admitted recognition of 

"various opinions" existing among its staff, intended re-evaluation and clarification of its policy in enforcing the standard, 

and vacation of the citation issued to the mine operator involving application of the standardo I find no basis established by 

Contestant that the standard is unconstitutionally vague on its 

face o The 11 vagueness 11 contention would have raised both questions of fact and law insofar as its application to the mine area 

specified in the citation is concerned--had not the citation been 

vacated and MSHA withdrawn its prosecution thereof. In view of 

MSHA 1 s actionsu howeverv I conclude the general question of 

vagueness of the standard also is now moot in this proceedingo 

The Secretary concedes the essence of the information contained in Contestant's "Supplement to Memorandum of Points 

and Authorities 11 which was received by the undersigned on 

June 4, 1991, and considered in the formulation of this 

decision. 

992 
To paraphrase the United States Court of Appeals, Tenth 

Circuit in Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 

447, 451 (1985), the government's vacation of the citation eliminated the prospect that Homestake would be held liable for the 

charged violation and rendered moot the specific issues that this 

administrative proceeding was intended to adjudicate, including 

unconstitutional vagueness. As a result, this case "has lost its 

character as a present, live controversy." The prospect of future citations for the same condition or practice is purely conjectural at this time. See Beaver Creek Coal Company, 11 FMSHRC 

2428 (December 1989). Again, as the Court also noted in Climax, 

supra, there is no indication in the record that MSHA has made a 

practice of citing Homestake or other companies for safety violations, only to subsequently vacate the citations. More specifically, there is no indication of bad faith on the enforcement 

agency's part in this proceeding in withdrawing its prosecution. 

Finally, it is noted that Contestant Homestake has obtained the 

remedy originally sought in its Notice of Contest, extension of 

abatement time, and finally, vacation of the Citation itself. 7 

Accordingly, Contestant'm motion for declaratory relief is found 

to lack merit. 

Contestant also seeks set-off of its litigation expenses 

"against future penalties." Application of the set-off principle 

in general could have deleterious consequences to mine safety enforcement since it would diminish - if not vitiate - the deterrent effect of the Act's most prominent deterrent, civil fines. 

Contestant has achieved its original objectives in this proceeding. To in effect insulate it from future mine safety penalty 

imposition would undermine the enforcement system envisaged by 

Congress. This remedy, being discretionary, and the stated 

rationale for rejecting it being "acceptable," 8 Contestant's 

petition therefor is also found to lack merit. 

7 Vacation of the Citation negates the possibility that the 

violation charged will become part of Contestantgs history 

of previous violationso 

Climax Molybdenum Co. Vo Secretary, 703 F.2d 447 at 453. 

See also Climax Molybdenum v$ Secretary, 2 FMSHRC 2748 at 

Po 2753., 

993 
ORDER 

1. Contestant Homestake's motion for declaratory relief and 

prayer for set-off of litigation expenses are DENIED. 

2. Citation No. 3632346 is VACATED. 

3. Respondent MSHA's motion to withdraw its answer pursuant 

to Rule 11 is GRANTED, and this proceeding is DISMISSED WITH 

PREJUDICE to Respondent MSHA to renew its prosecution of Citation No. 3632346. 

Distribution: 

~/tu4<~~f ~ p{Jrdt-1 / 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Henry Chajet, Esq., JACKSON & KELLY, 1701 Pennsylvania Ave., 

NoWo 0 Suite 650u Washington, D.C. 20006 (Certified Mail) 

James Bo Crawfordu Esq.u Office of the Solicitoru U9S. Department of Laborf 4015 Wilson Blvd.u Arlingtonu VA 22203 {Certified 

Mail) ' 

Mra Roland Vo Wilson, Director, Safety & Health, HOMESTAKE MINING 

COMPANY 0 PoOa Box 875u Leadu SD 57754 (Certified Mail) 

Ms& Cathy Hawley 0 V.Pou Local 7044, USWA, c/o Roland Wilson, 

Directoru HOMESTAKE MINING CO.u P.Oe Box 875u Lead, SD 57745 

(Certified Mail) 

ek 

994 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 21199\ 

LARRY E. BURNS, . . DISCRIMINATION PROCEEDING 

Complainant 

v. 

Docket No. WEST 90-166-DM 

MD 89-118 

D.H. BLATTNER & SONS, INC.v 

Respondent 

Basin Creek Mine 

DECISION 

Appearances~ Eula Compton, Esq., Bozeman, M::>ntana, 

for Complainant1 

Before~ 

Thomas Ee Hattersley III, Esq., Michaels. Ia.ttier, 

Esq., GOUGH, SHANAHAN, JOHNSON & WATERMAN, Helena, 

Montana,-

for Respondent. 

Judge Lasher 

This proceeding arises under Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~ 

(1982) (herein the Act). Complainant's initial complaint with 

the Labor Department's Mine Safety and Health Administration 

(MSHA) under section 105Cc)(2) of the Act was dismissed. 

Complainant contends that he was discharged on August 13, 

1989 0 for refusing to drive an unsafe truck. (I-T. 72-73). 

Respondent contends inter alia that Complainant did not make 

safety complaints and was discharged for abuse of equipment and 

unacceptable behavior. 

Complainant contends that he infonned his foreman Ted Roberts of three separate safety concerns he had with respect to the ~nAnn model truck: Noo 583 (with 3-speed automatic transmission) 

which he was directed to drive on the day he was discharged 

(August 13u 1989) involving the transmission, the canopyq and 

exhaust fumes. {I-To 42). 

Respondent (1) denies that any safety concerns were communicated by Complainant Burns to any of Respondent's management personnel on the day he was tenninated CI-T. 26) and (2) contends 

that he was discharged primarily for abuse of equipment (II-T. 

104 8 ll4u 126u 130 0 176) together with his belligerent conduct 

toward supervisors and his unexplained refusal to drive Truck No. 

583 (II-T. 104, 126, 130, 150, 176-177, 202-203, 214)& 

995 
Order Substituting Estate. 

The Complainant, Larry E. Burns, passed away subsequent to 

the hearing in the matter. 1 It appears that his estate was 

opened on April 1, 1991, under a special administrator who has 

requested an order substituting the estate for the decedent as a 

party in this matter. Respondent, having no objection (see 

Complainant's motion received April 12, 1991), the Estate of 

Larry Burns is hereby substituted as complainant in this section. 

See Secretary of Labor v. Metric Constructors, Inc., 4 FMSHRC 

791, 808 (April 1982). Rule 25(a) F.R.C.P. 

It is well-established that the Act is remedial and 

clothed in the public interest. Since the remedy provided for a 

discriminatee represents reimbursement of a lost property right, 

i.e., back pay, it is found to survive his death and to be subject to an award in an action brought by the appropriate government agency on his behalf. See Secretary of Labor v. Metric 

Constructors, Inc., 4 FMSHRC 791, 808 (April 1982). 

1 The Federal Mine safety and Health Act contains no provision 

with respect to whether the claim of an employee for back 

pay and other monetary remedies survives his subsequent 

death. With some few exceptions, the federal statutes contain no express provisions for survivability of causes of 

action in the federal courts (1 Amo Juro 2d, Abatement, Survival and Revival 0 S 112u Po 128)u and where no specific 

provision for survival is made by federal law, the cause 

survives or not according to the common law. At common lawu 

the basic principle of survivability is that survivable actions are those in which the wrong complained of affects 

principally property and property rights, including monetary 

interestsv and in which any injury to the person is incidentalu whereas nonsurvivable actions are those in which the 

injury complained of is to the person and any effect on 

property or property rights is incidental. Pierce v. Allen 

Bo Du Mont Laboratories, Inc., 297 F.2d 323 (3d Cir. 1961)~ 

l Amo Jur. 2d Abatement, Survival and Revival, S 51, Pe 86. 

996 
FINDINGS 2 

A. GENERAL 

Respondent at material times was a Minnesota corporation engaged in highway, mining, and heavy construction and was the mining contractor for the Basin Creek open pit gold mine engaged in 

constructing roads, leach pads, pad extensions and ponds, and excavating and hauling ore from pits. 

Complainant Burns was hired by Respondent on July 10, 1989, 

as a haul-truck driver CI-T. 57) and was discharged on August 13, 

19 8 9 ( I-T. 7 4) . 

In August 1989, Respondent's management personnel at the 

mine site were Superintendent Lance Power, overall operational 

Foreman Rusty Giulio, Head Mechanic Randolph R. "Randy" Wiener, 

and Ted Roberts Cwho served as acting foreman when Rusty Giulio 

was absent). (I-T. 57, 58, 60; II-T. 6, 19, 140). 

On August 13, 1989, Comi;>_~ainant Burns was assigned to drive 

truck No. 583, a spare truck CI-T. 215). His normally assigned 

truck was No. 589 (I-T. 32) which had "broken down" and was 

"being worked on." (I-T. 215). 3 His work assignment was first 

to haul overburden (common excavation) from the leach pad extension to a dump one-half mile away. (I-T. 32, 215, 218). 

On August 13, 1989, Complainant's immediate supervisor was 

leach pad foreman Ted Roberts. CI-T. 57, 214; II-T. 140). The 

hours of his shift were 6 a.m to 4:30 p.m. CI-T. 147, 214) seven 

days a week. On this day, when Mr. Roberts assigned Mr. Burns to 

drive Truck 583, Mr. Burns made no complaint about driving it. 

(I-To 84v 85u 216)0 Mr. Burns had operated the truck on two or 

three prior occasions (I-T 35-36u 75)o When Mro Roberts made 

'che assignment" he told Mr o Burns that 583 was an older truck and 

was the one available., and thus Mr o Burns iucould take it 

2 

3 

The hearing was held on two hearing daysu January 30 and 3lu 

19910 For both days of hearing there is a separate transcript beginning with page oneo Accordingly, the transcript 

tations will be prefaced with "I" and a "II" for January 30 and January 3lu respectivelyo 

No o 58 3 was an 11 Awu model with a three-speed automatic transmissionv Noa 589u a "B" model, was equipped with an automatic seven-speed transmission. (I-T. 32, 76, 215; II-T. 152). 

99 7 
easy" and didn't have to "cycle," i.e., keep up with another 

trucko After Mr. Burns had been making his runs on a fairly regular schedule, at some point he did not show up, and Mr. Roberts 

got in his pickup and drove up the haul road looking for along 

his route. ( I-T. 217-218). 

After hauling overburden for one and one-half hours, Complainant parked the truck allegedly because "the canopy on the 

truck was unsafe" (I-T. 32) and he was due to start working in a 

more dangerous area called the PPD. (I-T. 85). 

Before Mr. Roberts found Complainant, a significant incident 

happened resulting in a conversation between Complainant and Head 

Mechanic Wiener. 

Mr. Wiener was on the haul road near the maintenance department and saw Complainant pull off the road and talk to another 

truck driver. After finishing the talk, Complainant "let the 

truck roll back ••• revved the engine up and dropped it into 

first gear and took off." When he dropped it into first gear, 

the front of the truck raiseg_up on the suspension approximately 

six inches. CII-T. ~9, 24-27). The truck had a full load at the 

time. Complainant then drove off. On what appears to be the 

Complainant's next load, Mr. Wiener stopped him and told him that 

(Mrb Weiner) didn't want him to do that again, and that if it 

happened again, Complainant would be sent home, to which Cominant responded, "Do me a favor." Mr. Wiener gave this 

accountg 

A. He told me, do him a favor. That was his words. 

Qo Did he say anything else to you? 

Did he say anything about why he started the truck that 

wayu why he revved it up and put it into gear? 

Did he say anything to you about problems or concerns 

that he had with the safety of the truck? 

Did he say anything to you about a hole in the canopy 

or problems with the exhaust? 

998 
Q. So the only thing he said to you was, "Do me a favoro 51 ? 

A. Yes. 

Q. What did he do after that? 

A. What did I do or what did he do? 

Q. What did Larry do after that. Did he drive off? 

A. He drove off, yes. CII-T. 21). 

On August 13, 1989, Mr. Wiener was not aware of problems 

with Truck 583 and in his conversation with Complainant on that 

date, Complainant made no safety complaints or reference to problems with the truck CII-T. 35, 42, 75-79, 83}. Mr. Wiener did 

not authorize Complainant to park the truck (II-T. 49). 

Later in the day in a conversation with Mr. Roberts, 

Mr. Wiener learned that Mr. Roberts had sent Complainant home, 

and that evening Mr. Wiener received a call from Rusty Giulio 

CII-T. 48) inquiring if he had observed Complainant abuse the 

truck. 4 At this point, Mr. Giulio had not made up his mind 

about discharging Complainant. CII-T. 23) 5 

At approximately 7:30 a.m. CI-T. 220}, Mr. Roberts came upon 

Mr. Burns approximately midway along the one-half mile route between the leach pad and the dump--near a junction of haul roads 

and near the employee parking lot. CI-T. 218, 222). Mr. Roberts 

remained in this pickup and Mr. Burns approached him in agitated 

fashion, stating as he came up, "I am not driving that piece of 

5 

Complainant•s action in revving up the engine of the truck 

a.real high" and throwing it into gearu as observed by 

Mro Wieneru is found to constitute severe abuse of the power 

train (I-To 224; II-T. 20, 24-32) which could have resulted 

in repair costs of $5,000 to $15,000. CII-T. 31, 32). 

The record is clear that Mr. Robertsv sending Complainant 

home earlier did not constitute a discharge. 

999 
s anymore." Mr. Roberts credibly denied that Mr. Burns expressed any safety problems or concerns with truck 583 in this 

conversation. CI-T. 219, 220, 228). 6 

Mr. Roberts replied to Mr. Burns that "If you are not going 

to drive the truck, then you'd just as well take your stuff and 

go home." Mr. Burns made no offer to do other work. CI-T. 220). 

Mr. Roberts had no other work for Mr. Burns to do. CI-T. 120, 

214, 215, 220, 222, 223). 

Complainant, whose testimony I have found unreliable, testified that he gave Mr. Roberts three reasons for not driving the 

truck, i.e., "the canopy, the transmission, and the smoke from 

the exhaust." CI-T. 42). 7 

6 

7 

Mr. Roberts explained the reasons for his certainty in this 

connection: 

Q. You have stated that Larry Burns just described this 

truck in general terms, and you have stated that he 

did not tell you about any of the problems with the 

truck. 

A. No, he didn't. 

Q. Are you sure that he didn't, or do you not recall him 

doing so? 

Ao I am sure he didn 1 t 9 and the reason that I am sure is 

because it was brought to my attention the first thing 

the next morningo 

Qo Who was that brought to your attention by? 

Ao Lance Power asked me what had taken placeu and he wanted 

to know word for word of what he saidu because an MSHA 

inspector was coming up on the jobo CI-To 228)0 

Of the three reasons allegedly given to Mro Robertsu the 

hole in the canopy was the most serious. After being discharged in the evening of August 13u 1989u Complainant made 

a complaint to MSHA and the following day (August 14) two 

citations were issued on the canopy and transmission, and on 

August 16, a citation was issued on the exhaust CExs. C-1 

through 9). It is found that Truck 583 was in unsafe condition on August 13, 1989. 

1000 
After Mr. Burns left, two other employees (oilers> approached 

Mr. Roberts and asked him what had happened. Mr. Roberts told them 

that he had sent Larry Burns home and they informed Mr. Roberts 

that Head Mechanic Randy Wiener had, just previously, "jumped" 

Mr. Burns about abusing the truck. CI-T. 221). As above noted, 

later in the day Mr. Roberts discussed the matter with Randy Wiener 

who confirmed "he had said something" to Mr. Burns about abusing 

the truck, i.e., revving it up and dropping it into gear. CI-T. 

2 23). 

That evening Mr. Roberts called Rusty Giulio and advised him 

of the problem he had with Mr. Burns, of what Mr. Wiener had told 

him, and that he had sent Mr. Burns home "because he refused to 

drive the old truck." (I-T. 224). Mr. Roberts also mentioned 

the language Complainant used in referring to the truck (II-T. 

147). Mr. Giulio then contacted Randy Wiener and discussed the 

truck abuse incident. He also called Superintendent Lance Power 

and told him what he heard about the incident. Mr. Power advised 

Giulio to do "whatever was necessary." CII-T. 149). 

Giulio then telephoned Complainant to discuss the matter, 

and get Complainant's "side of the story." (II-T. 149, 168). 8 

Giulio recounted the conversation as follows: 

A. I said I had heard there was a problem on the job 

today, and he said, "Yeah, there was, I'm not going 

to run that piece of s __ ." 

Q. He used the same language as with Mr. Roberts? 

A. That's correct. 

Q. What did you reply? 

Ao I said v 06 If you' re not going to run a trucku then I 

guess we don 1 t have any use for youe 11 

Giulio specifically testified that at this juncture he had 

not made up his mind what action to take regarding Complainnant. (II-T. 150, 167, 168, 169, 177). 

1001 
Q. Did you discuss the abuse he had done to the equipment? 

A. No, he hung up on me then. 9 

* * * * * 

Q. Was he hostile in talking with you? 

A. Yes, he got a little heated. 

Q. At any time during your discussion with Mr. Burns oo• 

did he raise any concerns to you at all about the condition of the truck or any safety and mechanical problems whatsoever? 

A. No. At no time that Larry worked on the mine site did 

he ever raise questions concerning safetye 

(II-T. 149-150). 

Mr. Giulio, whose testimony I credit over that of Complainant Burns for the reasons indicated in this decision, also indicated that Complainant did not, during his conversation, tell him 

anything to justify his actions (II-T. 150), and that his impression was that Complainant simply was not going to drive the 

truck. Thus, on cross-examination he gave these answers~ 

9 While Mro Giulio subsequently added to his testimony that he 

also told Complainant that 9'we couldn°t handle equipment 

abuse.w (II-To 150, 167, 168, 169, 177)0 I do not consider 

this an inconsistency in his testimony since discussion of 

equipment abuse was cut off by Complainant~s hanging up the 

phone. Complainant's accounts of this conversation are essentially the same as Mro Giulioijs 0 other than when testifying as a rebuttal witness Complainant did not mention 

it was safety reasons that he refused to drive the truck 

I-T" 44u 71 0 , II-To 214-215)0 On the issue of whether Complainant voiced safety complaints concerning Truck 583 0 

is also observed that the accounts of Messrso Giul u 

Weiner 0 and Roberts, are relatively steady throughout, 

whereas Complainant engaged in a major n

1 perfectingva of his 

testimony on rebuttal (II-T. 213-214) from that on his case 

in chief. ( I-T. 42, 71). 

1002 
Q. Had he agreed to drive the truck, would he have come 

in the next day? 

A. He wasn't going to drive it. As far as I could get out 

of him, he wasn't going to drive the truck anyway. 

Q. My question is, if he agreed to drive the truck, would 

you have said, "Show up at 6:00 tomorrow?" 

A. Yes. 

Q. You didn't inquire what his complaints were at all as to 

the truck? 

A. No, we didn't get that far. CII-T. 168-169). 

Mr. Giulio denied ever giving Complainant authority to rev 

up the truck and drop it into.gear. CII-T. 151). Mr. Giulio's 

primary reason for terminatin_g Complainant was for "abuse of 

equipment (II-T. 150-151). He also took into consideration Complainant's "conduct toward the other supervisors and personnel 

and his attitude basically was smart and belligerent, and also 

for the refusal to drive a truck." CII-T. 150-151). 

Truck No. 583 on August 13, 1989, was unsafe. 10 (I-T. 175-

176: Ex. c-1· to C-9; II-T. 129). On August 13, 1989, supervisorial personnel Roberts, Wiener, and Giulio were unaware of the 

unsafe condition of Truck 583. (I-T. 216, 220, 229, 231; II-T. 

9-10, 13, 35, 184). 

10 Nevertheless 6 as noted elsewhere in this decision, this does 

not excuse Complainant's abuse of the truck, neutralize the 

legal effect of the failure of Complainant to communicate 

safety concerns to his supervisorsu or justify his belligerent0 provocative behavior toward supervision. There is 

considerable evidence in the record overall that Complainant us essential motivation in refusing to drive the truck 

was less of a safety concern than it was for some personal, 

subjective resentment and desire to terminate employment. 

It is ultimately concluded herein that Respondent's motivation in discharging Complainant was not due to anti-safety 

motivation or other discriminatory intent cognizable under 

the Acto 

1003 
B. RESPONDENT'S POLICIES AND PROCEDURES 

Respondent at material times had no 11 formal step" disciplinary procedure or structured termination policy. CII-T. 135). 

Respondent relies to a considerable extent on so-called 

"bitch slips" (shift tickets) to identify problems with equipment. 

Equipment operators, including truck drivers, are required to 

fill out bitch slips after each shift whether or not a truck has 

problems, and a lack of problems is indicated by checking a box 

thereon labeled "satisfactory." CI-T. 76, 103-104, 109-110; 

II-T. 11-12). The majority of bitch slips which were turned in 

contain no request for repairs. CII-T. 97). 

Under Respondent's maintenance program, approximately 50 

percent of equipment problems are detected through inspection. 

Significantly, the rest are discovered through the participation 

of equipment operators and drivers who either fill our shift 

tickets, inform their supervisor, or bring equipment directly to 

Chief Mechanic Randy Wiener and his personnel. (I-T. 76, 109, 

112; II-T. 7-14, 87-88). 11 

Complainant, a short time prior to August 13, 1989, had 

brought his regularly assigned truck (No. 589) directly in to the 

maintenance shop for repairs and, at that time, referred to it as 11 a piece of s • " It was repaired irrunediately. ( II-T. 16-18). 

It is inferred from this and other evidence (I-T. 55, 77) that 

(a) Complainant knew he could have had the canopy on No. 583 repaired on August 13, 1989, by taking the truck directly to the 

maintenance shop, and (b) Complainant, in conversations with management personnel, repeatedly referred to the equipment he was 

assigned to drive as a "piece of s ," or other disparaging way. 

In this connectionv it is noted that Complainant conceded at 

hearing that he was not aware of a single person who was ever 

fired by Respondent because of having made a safety complaint 

about equipment. (I-To 76)o 

C. RESOLUTION OF CREDIBILITY 

I have generally credited the testimony of Respondent 1 s witnesses over the testimony of Complainant with respect to whether 

Complainant made a safety complaint to Leach Pad Foreman Roberts 

11 During Mr. Wiener's three-year tenure as head mechanic, 

there were no accidents at the mine due to unsafe equipment. 

CII-T. 13). 

1004 
on August 13, 1989, and whether supervisors Rusty Giulio and 

Randy Wiener were aware of any safety problems with Truck 583. 

Specifically, I have credited the denials of Roberts, Wiener, and 

Giulio (1) that Mr. Burns made safety complaints about the truck 

on August 13, 1989, and (2) that they were aware of safety problems, including the hole in the canopy, at the time Complainant 

Burns was discharged. 

Based on observation at the hearing of the demeanor of the 

witnesses, the various reasons appearing in this decision, and 

the convincing testimony of Respondent's witnesses, the accounts 

of Complainant Burns have been determined not to carry the same 

degree of reliability as those of Respondent's primary witnesses, Roberts, Giulio, and Wiener. 

Additional factors weakening Complainant's testimonial 

trustworthiness follow. 

Respondent established prior instances where Complainant had 

quit a number of jobs when he had "cash in hand" and was dissatisfied with working condition,f:?. Thus, he quit one truck-driving 

job after three months because he felt the trucks were "junk." 

He quit another truck-driving job after five months because he 

was unhappy with his tax burden while his sister was on welfare. 

He quit another job partly because of what appears to be problems 

with other persons and threats. (I-T. 80-85). 12 

Although Complainant testified that being assigned to work 

in the PD-44 area Can hour or so after he had commenced work on 

August 13, 1989) increased the danger of driving thf! truck, (I-T. 

32, 78), he thereafter saw Randy Wiener and made no safety complaint to Mr. Wiener, much less asking that the truck be repaired--a procedure he accomplished previously and which, I infer 

from this recordg would have been feasible for him to have followed on the day he was discharged had he had genuine safety 

concernso (I-To 83-87Q II-To 16-18)0 

Complainant considered refusing to drive Truck 583 the first 

time he was assigned to do so in July 1989. CI-T. 69). He also 

considered complaining about it another time before August 13u 

1989 Che only drove the truck two or three times during his 31-

day employment) but alleged he thought he might be discharged if 

12 Complainant was employed by Respondent only a total of 34 

days. CI-T. 80). 

1005 
he did. (I-T. 69, 76). Yet, he admitted he was not aware of 

anyone being discharged for making a safety complaint about 

equipment. (I-T. 76>. 13 · 

DISCUSSION AND ADDITIONAL FINDINGS 

In order to establish a prima facie case of mine safety discrimination under Section 105Cc) of the Act, a complaining miner 

bears the burden of production and proof to establish Cl) that he 

engaged in protected activity, and (2) that the adverse action 

complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2797-2800 (October 1980), rev'd on other grounds sub nom.r 

and Secretary on behalf of Robinette v. United Castle Coal Co., 

3 FMSHRC 803, 817-818 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no part motivated by 

pretected activity. If an operator cannot rebut the prima facie 

case in this manner, it may nevertheless affirmatively defend by 

proving that Cl) it was also motivated by the miner's unprotected 

activities, and (2) would have taken.the adverse action in any 

event for the unprotected activities alone. The operator bears 

the burden of proof with regard to the affirmative defense. Haro 

v. Magma Copper Co., 4 FMSHRC 1935, 1936-1938 (November 1982). 

The ultimate burden of persuasion does not shift from the Complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Donovan v. 

Stafford Construction Co., 732 F.2d 954, 958-9~CD.C. Cir. 1984) 

(specifically approving the Commission's Pasula-Robinette test)J 

and Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 

(December 1986). 

l Complainant 1 s own witness 0 Project Office Manager Opal Holsworthv also conceded this major point in Respondentis favor 

in the following colloquy~ 

Qo Would you believe any employee who refused to drive 

a piece of equipment or a truck because it was unsafe would be red? 

Ao I don t believe that any employee would have been 

f ired 0 because sometimes employees did more severe 

ings than refused to drive a truck and got firedu 

and other people didngt do hardly anything and got 

f iredo It just deRended on the person that was bein taken into consideration. (I-Tc 140). 

1006 
The disposition of this case turns on whether Complainant's 

refusal to drive the truck was based on a belief (and reasonable 

communication) that the truck was unsafe or whether it was due to 

some subjective reasons and attitude, and whether Complainant 

communicated any safety concerns to management personnel prior to 

being discharged and, assuming that he did, whether he was discharged for this protected activity or for the reasons assigned 

by Respondent, meaning his non-protected activities, abuse of 

equipment, insubordinate conduct, 14 and unexplained refusal to 

drive the truck. 

Under the Mine Safety Act, discriminatory motive may not be 

presumed but must be proved. Simpson v. Kenta Energy, Inc. and 

Jackson, 8 FMSHRC 1034, 1040 (1986). 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2510-2511 (November 1981), rev'd on other grounds sub nom 

Donovan v. Phelps Dodge, 709'·F.2d (D.C. Cir. 1983); Sammons v. 

Mine Services Co., 6 FMSHRC 1391, 1398-1399 (June 1984). The 

instant record contains no reliable direct evidence that Respondent was illegally motivated nor does it support a reasonable inference of discriminatory intent. 

In reaching the conclusion that Complainant failed to establish a prima facie case by failing to establish that his discharge was discriminatorily motivated, consideration also has 

been given to the fact that the instant record does not reflect a 

disposition on the part of Respondent's management personnel, individually, or collectively, to engage in such conduct. A history of v or contemporary action indicating antagonism or retaliatory reaction to the expression of safety complaints was not 

shown o 

Although not elaborated on hereinv Respondent established in 

this record that it has at least a reasonable approach to safety 

and that operators and drivers are encouraged to bring safety 

14 The use of profanity in the belligerent context Complainant 

used it in on August 15 can itself be an unprotected activity sufficient upon which a discharge can be legitimately 

based. Hicks v. Cobra Mining, Inc., 18 FMSHRC 623, 532 

(April 1991). 

1007 
problems into its repair shop immediately and directly for repair. 

(I-T. 16, 108-110, 112-114, 131-132, 140, 224-226; II-T. 7-10, 

13, 36-37, 87, 88). 

Further, I have credited the version of the facts of Respondent's supervisorial witnesses with respect to the question 

of whether Complainant made safety complaints concerning Truck 

No. 583 on Au~ust 13, 1989, and find that no such complaints were 

registered. 1 Thus, in this respect also, Complainant failed to 

establish the prerequisites of a prima facie case under the Act, 

since the unexplained work refusal is not an activity protected 

under the Act. Dillard Smith v. Reco, Inc., 9 FMSHRC 992 (June 

1987). 

Finally, even assuming for the sake of argument that such 

complaints were made, Respondent established by a preponderance 

of credible and reliable evidence that its reasons for discharging Complainant were his abuse of equipment together wih his 

hostile conduct and approach to driving Truck No. 583. 16 Stated 

another way, Respondent carried its burden--even under the hypothesis that a safety complaint had been made--that it was motivated by Complainant's unprotected activities and that it had 

good reasons and would have taken the adverse action in any event 

for such. 

It is concluded that Complainant Burns was discharged for 

the reasons assigned by Respondent, abuse of equipment, together 

with his accompanying belligerent attitude and conduct toward his 

supervisors and the circumstances of his refusal to drive Truck 

No. 583. It is further found that Respondent's management had 

15 

16 

Since Complainant 0 at the time he refused to drive the 

truck 0 did not communicate his alleged safety concerns to 

Mro Roberts (or later to Mr. Giulio) Respondent had no 

opportunity to understand the basis for the refusal and to 

take any corrective action. See Conatser v. Red Flame Coal 

CompanyQ InCov 11 FMSHRC 12 (January 1989)0 

Rather than taking the truck to the maintenance department 

for repair 0 Complainant parked it, refused to drive it, was 

insubordinate 9 and this attitude and conduct precipitated 

his dischargeo By analogy to the concept of a mine operator vs constructive discharge of an emloyee, Complainant's 

actions approached being a constructive resignation. In 

this case, it appeared that Complainant forced the issue, 

that is, he forced the adverse action taken against him. 

1008 
sufficient basis in terms of both business and disciplinary 

reasons to justify the discharge of Complainant. 

As the Commission stated in Bradley v. Belva Coal Company, 

4 FMSHRC 981, 991 (June 1982): "Our function is not to pass on 

the wisdom or fairness of such asserted business justifications, 

but rather only to determine whether they are credible and~ if 

so, whether they would have motivated the particular operator as 

claimed.Di 

The record in this matter is convincing that Respondent was 

motivated for the reasons and justifications it claims. Complainant vs evidence was not found to be persuasive that his discharge was due in any way to any alleged expression of safety 

complaints" 

CONCLUSIONS 

Respondent's motivation in discharging Complainant was for 

his unprotected activities and the decision to take such adverse 

action was justified.~ This adverse action was not wholly or in 

part discriminatorily motivated. Thus, Complainant has failed to 

establish a prima facie case of discrimination under Section 

105(c) of the Mine Act. 

Even assuming arguendo, that it was established by a preponderance of the reliable probative evidence, that Complainant's 

discharge was motivated in part by protected activities, Respondent established by a clear preponderance of such evidence that it 

was also motivated by Complainant's unprotected activities and 

that it would have taken the adverse action in any event for such. 

Gravely v. Ranger Fuel Corpo, 6 FMSHRC 729 (1984). 

ORDER 

Complainant 0 having failed to establish Mine Act discrimination on the part of Respondent, the Complaint herein is found 

to lack merit and this proceeding is DISMISSED. 

/!F-6ct7 £'. ~~~f_l- - Michael A. Lasheru Jr. 

Administrative Law Judge 

st:cibutiong 

Thomas Eo Hattersley IIIu Esqe, GOUGH, SHANAHAN, JOHNSON & 

WATERMANu 301 First National Bank Building, P.O. Box 1715, 

Helenau MT 59624-1715 {Certified Mail) 

Eula Compton, Esq~, 214 So Willson, Bozeman, MT 59715 (Certified 

Mail) 

ek 

1009 
FIEDERAl MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 211991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 91-30 

A. C. No. 46-01436-03825 

Shoemaker Mine 

DECISION 

Appearances: Page H. Jackson, Office of the Solicitor, u. s. 

Department of Labor, Arlington, Virginia, for the 

Petitioner; 

Before: 

Walter J. Scheller III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Weisberger 

Statement of the Case 

This case before me based on a petition for assessment of 

civil filed on November 5, 1989, alleging a violation of 

30 CoF.R" § 75.1403" Subsequent to the filing of an Answer and 

pursuant to notice, the case was heard in Pittsburgh, 

Pennsylvania, on February 20-21, 1991. Joseph Yudasz, Louis Paul 

Jones, Nelson Thomas Blake, Thomas Dale Updegraff, and Dennis 

O'Neil ied for the Secretary (Petitioner). Edward Roy 

, II, Michael Blevins and James A. Deems testified for 

Operator (Respondent). 

Subsequent to the hearing on May 30, 1991, Petitioner filed 

a Motion to Approve Settlement. In its motion, counsel for 

Petitioner asserts that the language in the notice to provide 

safeguard, which provided the basis for the issuance of the 

citation at issue herein, "· •• may not provide Consol with 

sufficient notice of what is required to comply with the 

safeguard under the various mining conditions encountered at the 

Shoemaker Mine." This assertion is consistent with the evidence 

that was adduced at the hearing. 

1010 
The motion seeks an order vacating the safeguard and 

citation at issue, and· ordering Respondent to issue instruction 

for safe travel, and conduct a safety meeting concerning these 

instructions. Based on the record before me, I conclude that 

such an order fairly disposes of the issues in this case, and is 

consistent with the purposes of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq. Accordingly, the 

motion is granted. 

It is ordered that: (1) Consol shall issue at the Shoemaker 

Mine, within thirty (30) days of the date of the order, the safe 

work instruction attached as Exhibit l; (2) Consol shall conduct 

a safety meeting, which concerns the contents of the safe work 

instruction attached as Exhibit 1, with all miners working on the 

longwall section at the Shoemaker Mine within thirty (30) days of 

the date of the order; and (3) Notice to provide Safeguard No. 

3326026, and section 104(a) Citation No. 3326035 shall be 

vacated. 

Distribution: 

Page H. Jackson, Esq., Office of the Solicitor, U. s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Walter Scheller III, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

/fb 

1011 
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activa
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 24 199\ 

MICHAEL P. DAMRON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

REYNOLDS METALS COMPANY, 

Respondent 

Docket No. CENT 89-131-DM 

MD 89-04 

Sherwin Plant 

DECISION ON REMAND 

Appearances: R. Michael LaBefie, Esq., Powers & Lewis, 

Washington, D.C., for Complainant; 

Jean w. Cunningham, Esq., Richmond, Virginia, 

for Respondent. 

Before: Judge Broderick 

on April 16, 1991, the Commission remanded the case to me, 

(1) for further findings and analysis of the testimony of 

Complainant Michael Damron and his foreman Arlen Boatman 

concerning Boatman's order to operate the mill on September 7, 

1988; and (2) for an explanation of my finding that General 

Supervisor Glenn Reynolds on September 5, 1988, authorized Damron 

to run the mill from a safe distance. 13 FMSHRC 535 (1991). 

Following the remand counsel for Complainant and Respondent filed 

briefs which I have carefully considered in making this decision 

on remand. I will first address the question of the DamronReynolds conversation. 

I 

When the protective shelter was torn down, Damron protested 

the action to Reynolds, the general supervisor in the precipitation and calcination areas of the plant. A safety procedure 

meeting was called and convened on September 2, 1988, which 

addressed some of the safety complaints advanced by Damron and 

the Union. On September 5, Damron approached Reynolds and stated 

that the company had agreed to erect an overhead plywood shelter 

for the ball mill. Reynolds denied that such an agreement had 

been made. On page 4 of my Cj.P9ision I quoted Reynolds' testimony 

that he told Damron that "if he had any real safety concerns 

regarding the operation of the belt line, without that temporary 

shed, that he should go outside the'building, down the tunnel, 

1013 
and operate the belt standing in that position." On rebuttal 

Damron denied that Reynolds had given him the "option of working 

down in the pit next to the conveyor belt." 12 FMSHRC 417-418 

(1990). 

Neither of these statements is inherently incredible. 

Because they are contradictory, however, only one can be 

credited. I chose to credit the testimony of Reynolds. It 

seemed (and still seems) highly unlikely that he would manufacture out of the whole cloth a rather detailed conversation 

including the phrase "down the tunnel." I therefore reiterate my 

finding of fact that Reynolds on September 5, 1988, gave Damron 

permission to operate the mill away from the building. 

II 

There is no dispute that Foreman Boatman, who was not at the 

safety meeting, told Damron on September 6, that he could operate 

the mill by turning the belt switch on, and stepping back to 

monitor the belt from a distance where he would not be subject to 

the possible hazards 9f falling objects. Damron protested that 

metal objects could get by the metal detector and damage the 

hammer mill. "If one of them things would have gotten by, gone 

into the hammer mill, it would have tore that whole thing 

up .•• so that was not a very acceptable way for me to run my 

job properly" (Tr. 225). Boatman told Damron (and I find as a 

fact that he did tell him) "that should anything go through the 

detector, if for any reason it failed and we did not get metal in 

the mill, that it would be my responsibility" (Tr. 352). Damron 

did not work on the mill on September 6, because of problems in 

the tray area. In my original decision, I found that Respondent 

erected a guardrail on the upper floor and agreed to erect a 

metal shed over the area where the magnet was located. 

When Damron reported for work on September 7, Boatman 

directed him to run the ball mill. Boatman did not change or 

revoke the authorization given the previous day permitting Damron 

to monitor the belt from a distance. His testimony, which I 

quoted on page 5 of my decision, that "· . o I gave him the 

direct order to operate the facility under normal conditions, 

standing where needed to, if he needed to stand at the metal 

detector, if he needed to clean conveyor belts, tail pulleys or 

whatever, it would be the general operator, the regular operation 

of the facility11 must be considered together with the testimony 

concerning the conversation on the previous day, which I quoted 

above. Taking into consideration the two conversations, I 

conclude that Boatman's order to run the mill included his 

authorization to monitor the belt from a position away from the 

building, and that Damron unde":stood this. His refusal to comply 

with the order resulted more from his belief that the mill could 

not properly be operated in that fashion, rather than because of 

any safety concerns. This conclusion is reinforced by my finding 

1014 
above that Reynolds authorized Damron to operate the belt away 

from the building. On the basis of these findings, I conclude 

that Damron's work refusal was not reasonable, nor did it result 

from a good faith belief that the work he was ordered to perform 

was hazardous. 

I conclude therefore that Respondent's action in discharging 

Complainant for refusal to obey an order to perform on work 

September 7, 1988, was not in violation of Section 105(c) of the 

Act. 

Accordingly, the complaint and this proceeding are 

DISMISSED. 

)1u~ .lv16nJdt1/~1ilL ,·. James A. Broderick "" Administrative Law Judge 

Distribution: 

R. Michael LaBelle, Esq., Powers & Lewis, 4201 Connecticut 

Avenue, NW, Suite 400, Washington, D.c. 20008 (Certified Mail) 

Jean W. Cunningham, Esq., Reynolds Metals Companyp P. Oo 

Box 27003, Richmond, VA 23261 (Certified Mail) 

dcp 

1015 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 251991 

MELVIN BURKHART, 

Complainant 

v. 

FOSSIL FUEL, INC., 

Respondent 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. KENT 90-184-D 

BARB CD 90-13 

No. 2 Mine 

Appearances: Mr. Melvin Burkhart, Kenvir, Kentucky, pro se; 

Otis Doan, Jr., Esq., Harlan, Kentucky, for the 

Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

This proceeding concerns a discrimination complaint filed by 

the complainant, Melvin Burkhart, against the respondent pursuant 

to Section l05(c) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 seq. Mr. Burkhart filed his initial 

complaint with the Secretary of Labor, Mine Safety and Health 

Administration (MSHA) . Following an investigation of his 

complaint, MSHA determined that a violation of Section 105(c) had 

not occurre'd 1 and Mr. Burkhart then filed his pro se complaint 

with the Commission. A hearing was conducted in London? Kentucky 

on February 14, 1991. 

Essentially, the complainant maintains that he was hired to 

operate the continuous miner machine and that the respondent's 

request for him to go and muck the mainline belt was in 

retaliation for him making safety-related complaints about 

conditions in the mine. Mr. Burkhart quit his job rather than 

perform this admittedly "dirty" job. He now seeks reinstatement 

and back pay. 

Mr. Burkhart's discrimination complaint states as follows: 

I operated the miner at Fossil Fuel, Inc. During the 

last three (3) months, I have complained numerous times 

about failure to take CH4 checks, cutting without line 

curtains, roof control plan not being conformed to, and 

methane monitor being bridged out during operating. 

These were safety hazards to myself and fellow 

1016 
employees. These hazards was not corrected. On 

January 31, 1990, I complained to Tony Bailey about the 

above mentioned conditions. I was then instructed to 

go muck the main belt heading and the miner helper was 

going to operate the miner. I was told he could cut 

cleaner coal. The miner helper has approximately 

12 hrs. experience operating the miner. I then stated 

I would just go home. Therefore, I feel I have been 

discriminated against for complaining about my rights 

to a safe work area. 

I request my job back.as a miner operator, and any 

backpay due me. 

The complainant testified at length at the hearing. He 

began work at Fossil Fuel as a miner operator in April of 1989. 

Between then and January 31, 1990, he alleges there was no effort 

made on the part of mine management to fix anything. Things just 

kept building up and building up until finally on January 31, 

1990, the situation had gotten to the point where he complained 

to Tony Bailey, the assistant superintendent, about the 

conditions he felt were unsafe. More specifically, he testified 

he had complained about loose and inadequate {short) roof bolts, 

cutting coal without line .curtains to get fresh air to the face, 

a malfunctioning methane monitor, and basically his feeling is 

that management thought he was instigating trouble and holding up 

production. And that i.s. the reason he believes he was told to go 

and muck the belt line ... 

As further evidence of this, he points out that the man who 

was going to replace him on the miner, while he went to muck the 

mainline belt, had only 12 hours of experience running this type 

of continuous miner. 

In a nutshell, complainant felt he was being punished 

because he wanted a decent place to work. He maintains that an 

assignment to muck the belt line is well recognized in the coal 

mining industry as a punishment tour, and he feels in this 

particular case, it constitutes harassment. 

After complainant balked at mucking the belt linep 

Mr. Bailey then offered him a chance to run the roof-bolting 

machine instead, but Mr. Burkhart didn't feel like he was 

qualified to do that so he declined. At that point he quit and 

never went back. It was his last day working for Fossil Fuel. 

In order to establish a prima facie case ~f discrimination 

under Section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity, and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

1017 
1981); secretary on behalf of Robinette v. United Castle Coal 

company, 3 FMSHRC 803 .(1981): Secretary on behalf of Jenkins v. 

Hecla-Day Mine Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was in no 

way motivated by protected activity. If an operator cannot rebut 

the prima facie case in this manner it may nevertheless 

affirmatively defend by proving that it was also motivated by the 

miner's unprotected activities and would have taken the adverse 

action in any event for the unprotected activity alone. The 

operator bears the burden of proof with regard to the affirmative 

defense. Haro v. Magma Copper company, 4 FMSHRC 1935 (1982). 

The ultimate burden of persuasion, however, does not shift from 

the complainant. Robinette, supra. See also Baich v. FMSHRC, 

719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford 

Construction Company, No. 83-1566 D.C. Cir. (April 20, 1984) 

(specifically approving the Commission's Pasula-Robinette test). 

See also NLRB v. Transportation Management Corporation, 462 

U.S. 393, 76 L.Ed.2d 667 (1983}, where the Supreme Court approved 

the NLRB's virtually identical analysis for discrimination cases 

arising under the National Labor Relations Act. 

It is clear that Mr. Burkhart has a right to make safety 

complaints about mine conditions which he believes present a 

hazard to his health or well-being, and under the Act, these 

complaints are protected activities which may not be the 

motivation by mine management for any adverse personnel action 

against him; Secretary of Labor ex rel. Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds 

sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 

(Jd Ciro 1981), and Secretary of Labor ex rel. Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (April 1981) o Safety 

co~~laints to mine management or to a section foreman constitute 

protected activity 1 Baker v. Interior Board of Mine Operations 

Appeals, 595 F.2d 746 (D.C. Cir. 1978); Chacon, supra. However, 

the miner 1 s safety complaints must be made with reasonable 

promptness and in good faithr and be communicated to mine 

management MSHA ex rel. Michael J. Dunmire and James Estle v. 

Northern Coal Company, 4 FMSHRC 126 (February 1982); Miller v. 

FMSHRC, 687 F.2d 194, 195-96 (7th Cir. 1982) i Sammons v. Mine 

Services Co. 1 6 FMSHRC 1391 (June 1984). 

Mr. Bailey testified that Mr. Burkhart was hired by Fossil 

Fuel on April 24, 1989, at a starting pay of $~.oo per hour. He 

was hired primarily to run the continuous mining machine, and he 

did run it until January of 1990, when he quit. At that point in 

time, he had progressed to making $12.00 per hour. 

1018 
Mr. Thomas J. Davis owns a coal business associated with 

Fossil Fuel. They contract mines from him. There came a time in 

January of 1990, when he had a problem with quality control of 

the coal they were producing. He wanted "blockier" coal and he 

discussed this with Tony Bailey. Mr. Bailey then decided to try 

an "experiment." He would put a different operator on the mining 

machine. He and Mr. Davis happened to notice that on January 29, 

1990, a day that Mr. Burkhart was off, the coal run that day was 

"blockier." It was more lumpy. Ed Napier and Terry Wells were 

running the miner that day. So, on January 31, 1990, the 

decision was made to have Terry Wells run the miner that day and 

Mr. Burkhart was asked to go to the No. 2 belt head, service it, 

service the tailpiece, and then start mucking the mainline belt. 

Bailey states he fully explained the reason for this job 

change to Burkhart at the time, and told him they were merely 

trying something new to try to improve the quality of the coal 

for Mr. Davis. If it didn't work after 2 or 3 days, he might put 

Burkhart back on the mining machine. There was no loss of pay 

involved. His same rate of pay ($12.00 per hour) applied to 

either job. 

Mucking the belt line is a disagreeable, dirty job in the 

mine. There is no dispute about that. But even Mr. Burkhart 

admits that "somebody had to do it. 11 Mr. Bailey testified that 

he has done it himself. "Everyone does," he added. 

In any event, when Bailey saw that Burkhart was getting 

upset about the mucking assignment, he offered him something 

else. As Mr. Davis testified at Tr. 117-118: 

Q. Did you hear Tony [Bailey] offer Mr. Burkhart the 

job on the roof bolter? 

JL I sure dido 

Qo And what did Mro Burkhart say? 

A. He said, "No, I ain't no bolting machine man." 

Qo Did he offer him any other job? 

Ao Yes. He said, "Why don't you be a helper?" He 

said, nNo, they don't like my kind of work. 11 

Q. What kind of helper? 

A. Bolt machine helper. 

Q. Okay. He was offered the bolt machine helper job? 

A. Yes, he was. 

1019 
Q. Did he turn that down? 

A. Yes, he did. 

Q. Did he ever say he quit? 

A. No. He said he believed he was going to the house. 

That's what he said. 

Q. Why did he say he was going to the house? 

A. He said something about if they didn't like the way 

he was running the miner or didn't like his work, 

he'd just go to the house. I told him--I said, 

"Melvin, why don't you thirik about it before you quit?" 

He said no, he'd just go home. 

Q. Did Mr. Bailey also ask him to stay? 

A. Yes, of course he did. 

Importantly, if Mr. Burkhart had done the mucking of the 

belt or running the roof bolter or being a roof bolt helper, his 

pay would have remained the same as if he were operating the 

miner. 

Even more importantly to his case here, I believe that 

Mr. Burkhart brought up the majority of his complaints to Bailey 

after he was told to go and muck the belt line. I believe his 

pride was wounded and he was hurt by what he perceived to be 

"harassment." However, even giving him the benefit of the doubt 

as to the existence of some prior protected activity, as the 

complainant in this case, Mr. Burkhart has the burden of 

establishing by a preponderance of the evidence that he not only 

communicated safety complaints to mine management 1 or that 

management knew or had reason to know about safety complaints to 

MSHA, but that the adverse action he complains of was the result 

of the complaints and therefore discriminatory. In essence, 

Mr. Burkhart must prove a connection between the com-Plaints and 

the adverse action complained of. 

I conclude that the required connection has not been proven. 

I find the testimony of Bailey and Davis to be credible on the 

••quality of the coal" issue and furthermore, the Company's offer 

of other coal mine employment at no loss of pay demonstrates good 

faith in my opinion. Complainant was not given a "take it or 

leave it 11 ultimatum to muck the belt line. He was offered not 

one, but two alternatives to mucking the belt line. He chose to 

avail himself of neither and ~~it his job. 

1020 
Whether the respondent wisely chose to replace a more 

experienced miner operator with a less experienced one is not an 

issue properly before me in this case. My jurisdiction is 

limited to considering whether the respondent discriminated 

against the complainant for activity protected under the Federal 

Mine Safety and Health Act of 1977. I conclude that the evidence 

before me establishes that it did not. An employee's mere 

conjecture that the employer's explanation is a pretext for 

intentional discrimination is an insufficient basis upon which to 

base a successful claim of discrimination. 

ORDER 

In view of the foregoing findings and conclusions, and after 

careful consideration of all of the ·evidence and testimony 

adduced in this case, I conclude and find that the complainant 

here has failed to establish a prima f acie case of discrimination 

on the part of the respondent. Accordingly, the Complaint is 

DISMISSED, and the complainant's claims for relief are DENIED. 

~ 

Law Judge 

Distribution~ 

Mr. Melvin Burkhart, P. O. Box 292, Kenvir, KY 40847 (Certified 

Mail) 

Otis Doan, Jr., Esq., 119-A First Street, Harlan, KY 40831 

(Certified Mail) 

dcp 

1021 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUN 27 \99l 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION 

DISCRIMINATION PROCEEDING 

(MSHA), . . Docket No. WEST 90-271-D 

ON BEHALF OF LOUIS C. VASQUEZ, : 

Complainant 

v. 

WESTERN FUELS-UTAH, INC., 

Respondent 

DECISION 

Deserado Mine 

Appearances: Susan J. Eckert, Esq., Office of the Solicitor, 

U.S. Department,_of Labor, Denver, Colorado, 

for Complainant; 

Richard S. Mandelson, Esq., Baker & Hostetler, 

Denver, Colorado, for Respondent. 

Before: Judge Cetti 

This discrimination proceeding is before me upon the Complaint of the Secretary of Labor on behalf of Louis C. Vasquez 

under Section 105(c)(2) of the Federal Mine Safety and Health Act 

of 1977,,30 U.S.C § 801 et~ the "Act". ~he complaint alleges 

that Louis c. Vasquez, an underground coal miner was unlawfully 

transferred from the crew he had been working with to a differ1.:0nt 

crew on another shift at the same mine in retaliation for his 

safety complaints in violation of Section 105(c)(l) of the Acto l 

Section 105(c)(l) of the Act provides as follows~ 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any minerv representative of 

miners or applicant for employment in any coal 

or other mine subject to this Act because such 

mineru representative of miners or applicant 

for employmentu 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 such miner, representative of 

miners or applicant for employment is the subject of medical evaluations and potential trans1022 
The complaint requests a finding that Mr. Vasquez's transfer 

was the result of unlawful discrimination because he exercised 

his statutory rights under the Act and requests reinstatement, 

back pay plus interest, and the expungement of all matters relating to the transfer from Mr. Vasquez's employment records. The 

Secretary proposes a civil penalty of $2,000 for the alleged violation of Section 105(c} of the Act. 

Western Fuel contends that the transfer complained of was 

not motivated in any part by Complainant's protected activity and 

that, even had the Complainant established a prima facie case, 

a preponderance of the evidence established that Western Fuel had 

a valid business reason for transferring Complainant and for this 

reason alone transferred Complainant to the other crew. 

The hearing was held before me at Glenwood Springs, Colorado, on the merits of Mr. Vasquez's complaint. Helpful post-hearing briefs were filed by both parties which I have considered 

along with the entire record in making this decision. 

Stipulations 

At the hearing, the parties stipulated to the following: 

1. Western Fuels-Utah, Inc. is engaged in mining and selling of coal in the United States and its mining operations affect 

interstate commerce. 

2. Western Fuels-Utah, Inc., is the owner and operator of 

Deserado Mine, MSHA I.D. No. 05-03505. 

3. Western Fuels-Utah, Inc. is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977u 30 u.s.c. §§ 

801 et seg. ("the Act 11 ) o 

cont'd fn.l 

fer under a standard published pursuant to 

section 101 or because such representative of 

miners or applicant for employment has instituted or caused to be instituted any proceedings 

under or related to this Act or has testified or 

is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right 

afforded by this Act. 

1023 
4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The exhibits to be offered by respondent and the Secretary are stipulated to be authentic but no stipulation is made as 

to their relevance or the truth of the matters asserted therein. 

6. The proposed penalty will not affect respondent's ability to continue business. 

7. Western Fuels-Utah, Inc., is a large operator of a coal 

mine. The total production tons of the controlling company are 

1,375,174 tons per year. The total production tons of the mine 

are 1,375,174 tons per year, and it has 177 production workers. 

Complainant's Case 

Messrs. Louis Vasquez, Gary Belveal, Stanley Kretoski, and 

Roland Heath (as an adverse witness) were called to testify by 

the Complainant~ 

Mr. Louis Vasquez testified substantially as follows: 

LOUIS VASQUEZ began working for Western Fuels on December 13, 1985, as a continuous mine helper. Five or six months 

later, he became a continuous mine operator, and became a shear 

operator approximately seven months after that. (Tr. 13-15). 

In December 1988, Norm Wallace became the section boss or 

foreman on Vasquez's crew. To Vasquez's knowledge, Norm Wallace 

did not have any prior experience on the longwall, and at that 

time the crew was having problems with the methane gas on the 

wallo Beginning in August 1989u Vasquez and his fellow crew 

members began checJ<:ing for methane gas every 20 minutes during 

their shift because they were having more gas problemso These 

gas problems continued from August 1989 to December 1989u when 

Vasquez was transferred to a different crew on another shift. 

(Tro 19-20, 24-26)e 

Between August and December 1989, Vasquez talked to Rick 

Kendallu Norm Wallace 1 s immediate supervisor 1 nearly every day 

about the gas problems. Vasquez reported the gas problems to 

Roland Heathu the mine superintendent in early December 19890 

(TL 28-29) o 

On December 18, 1989, Rick Kendall picked Vasquez up in a 

company truck approximately an hour before the end of his shift. 

Kendall told Vasquez that he was being transferred to a different 

crew on another shift. Vasquez asked why he was being moved in1024 
stead of someone else, and Kendall replied that there were problems on the crew. Vasquez asked whether it was because he was 

causing trouble on the crew or on the shift. Kendall simply said 

that he was doing what the superintendent Roland Heath told him 

to do, and Vasquez would have to take up the details with Roland 

Heath. Vasquez believes that he had complained about gas problems that day at the beginning of the shift. {Tr. 31). 

The next day, Vasquez talked to Roland Heath because he did 

not want to be moved off of his shift, as a transfer would interrupt his carpool arrangements. Vasquez also asked Roland Heath 

why he was the one being transferred instead of someone else. 

Heath replied that there were problems on the crew and that he 

had to solve the problems. Vasquez asked whether he had been 

causing any problems. Vasquez testified that Heath stated that 

Vasquez was the problem and that was why he and Norm Wallace, the 

foreman, were being transferred off the shift. {Tr. 34). 

On the same day, Vasquez complained to Gary Belveal, the 

Union president in his district. Gary Belveal went to speak to 

Roland Heath on Vasqu~z's benalf, but the situation was not 

changed. Then Vasquez called the MSHA and spoke to Stanley 

Kretoski, because he did not think that the transfer was fair to 

him. Vasquez believed that he had been transferred off his shift 

"just because" he was following his "work procedures as operator" 

of shutting the wall down when the methane readings required it. 

(Tr. 3 5-3 6) • 

Vasquez remained a shear operator after he was transferred, 

and received the same rate of pay. However, he did not receive 

as much overtime on his new shift. (Tr. 36-38). 

Prior to the transfer he worked five days at the wall" 

the transfer he worked three days at the wall and two days 

1n the unminersu section11 0 CTro 35-36L 

Because of his transfer, Vasquez rotated to the graveyard 

shift instead of to the day shift with his old crew. As a resultu he had to drive himself to work the next two week period 

because he only had a carpool when he was on the day shift" (Tr" 

39L 

Vasquez stated that he is also claiming damages for wear and 

tear on his car based on oil changes and other things that he had 

to do himself" He is also requesting reimbursement for long distance telephone calls he made to the Bureau of Mines in December 

19890 {Tro 44)" 

1025 
Norm Wallace, Vasquez's former foreman, was transferred to a 

different "miner section" at the same time Vasquez was transferred. A man named John Claybaugh, who had a temporary shear 

bid at the time, replaced Vasquez on his old crew. Scott Nepp 

replaced the foreman Norm Wallace. (Tr. 45). 

Jon Hawkins, the other shear operator on Vasquez's former 

crew, shut down the longwall for gas problems more frequently 

than Vasquez did. Vasquez received training in MSHA regulations, 

and one of the items covered in the training is that continuous 

miners and shear operators are expected to shut down the longwall 

if there is a gas build-up. Vasquez was instructed to shut down 

the longwall anytime he had methane in tailgates or headgates--

1 percent on the returns and 2 percent on the bleeders. Vasquez 

was never disciplined under the collective bargaining agreement 

for reporting a gas build-up which resulted in shutting down the 

face. There were six people on his crew who had responsibility 

for gas readings. To Vasquez's knowledge, no member of his crew 

was disciplined for shutting down because of a gas build-up. 

(Tr. 50-53) • 

There is a 40-cent differential per hour for working the 

graveyard shift, and a 30-cent differential per hour for working 

the swing shift. Vasquez believes that he was told about his 

transfer the week before Christmas, and that he started working 

on his new crew the first week in January 1990. Under a normal 

rotation process, he would have been on the day shift the first 

two weeks of January 1990, but after his transfer he was on the 

graveyard shift instead. Because of the transfer, Vasquez received a 40-cent differential per hour for working the graveyard shift the first two weeks in January 1990, although he lost 

his carpool arrangements for those two weeks. Vasquez does not 

recall taking off the 40 cents extra per hour when he did the 

damage calculations on his damage report. (Tr. 56-63)0 

Vasquez had problems with Norm Wallace when he first became 

his crew foreman. Vasquez thought that Wallace was not doing his 

job, that he was not keeping a constant gas watch on the tailgates and bleeders, and that Wallace got upset whenever someone 

tried to explain anything to him. Vasquez believes the first 

time he talked to Norm Wallace about gas problems was in August 

or September 1989. Wallace did not write Vasquez up for complainingu nor did he consider Vasquez 8 s complaints to be insubordinationo The gas problems occurred from August to November 

1989v because a borehole that ventilates gas on the face of the 

longwall was not operating properly. (Tr. 64-70). 

1026 
Between June and December 1989, three other people asked to 

be transferred off Vasquez's old crew. One man, Dewey King, 

asked to be transferred because Vasquez gave him a hard time. 

Vasquez testified "we were on his (Mr. King's) case because he 

had the smell of liquor on his breath." (Tr. 74-76). 

Vasquez admitted he has no knowledge or information that 

Roland Heath used any criteria other than seniority in deciding 

whom to transfer off his old crew. Jon Hawkins had more seniority than Vasquez on his old crew. (Tr. 78). 

Vasquez had carpool arrangements during 1989 with a man who 

worked only day shifts. Thus, Vasquez only drove his car one 

week out of two when he was on the day shift. However, he drove 

by himself every day when he worked the swing and graveyard 

shifts. (Tr. 79-82). 

Petitioner's Exhibit P-1, showing Vasquez's damages, was 

prepared by Stanley Kretoski. Vasguez does not have copies of 

phone bills to substantiate the amount claimed for long distance 

telephone calls. Vasquez's c'laim for lost overtime is based 

solely on what another miner on Vasquez's old crew told him about 

how much overtime he was getting. (Tr. 83-84). 

Vasguez worked the swing shift during the middle two weeks 

of December 1989$ The mine was closed for Christmas week, and 

Vasquez began working the graveyard shift the first two weeks in 

January 1990. Vasguez worked the swing shift January 15 through 

January 28, 1990, (Tr. 89-92), and after that rotated back to the 

day shift. 

Vasquez's problem with his transfer to the new crew is the 

way the company went about doing itv and that Roland Heath called 

Vasquez a troublemaker" The transfer also cost Vasquez travel 

expenses when he lost his carpool for two weeks and a loss in 

overtime pay. Vasquez did not think he received as much overtime 

on his new crew assignmento (Tro 93-94). 

Mro Gary Belveal testified substantially as follows: 

GARY BELVEAL runs a roof bolter at the Deserado Mine and 

is President of Local 1984 of the United Mine Workers. He has 

been involved with the safety committee at the mine since mid1987" (Tro 99-100)" Belveal believes that Vasquez talked to him 

about gas problems on the longwall, but could not recall any specific conversations with Vasguez on this subject before he was 

transferred. Belveal refreshed his recollection about conversations with Vasguez by looking at his handwritten notes from 

1027 
December 1989. (Tr. 102-03). Belveal became aware that Vasquez 

was being transferred the week of December 20, 1989, when Vasquez 

spoke to him about the transfer. Vasquez told Belveal that he 

thought he was being transferred because of safety issues he had 

brought up on his old crew, and thought it was unfair that he was 

being singled out for the transfer. Other members of 

Vasquez's former crew, including Jon Hawkins, told Belveal that 

they felt Vasquez was being transferred because of his complaints 

about gas problems on the wall. (Tr. 104-05). 

Belveal testified that he spoke to Roland Heath about 

Vasquez's transfer, and Heath told him (Belveal) that the whole 

crew was insubordinate and that Vasquez was the cause, which was 

why he was being transferred. Belveal then went back to see 

Heath again with Al Payne, another miner's representative on the 

safety committee. Heath again stated that the entire crew had 

been insubordinate and that transferring Vasquez would take care 

of the problem. Belveal then .asked Roland Heath if the code-aphone call had anything to do with Vasquez's transfer, and 

Heath's response was "No, pa~_tly. " Bel veal had heard through 

word of mouth at the -mine that a code-a-phone call had occurred 

on December 8, 1989. (Tr. 106-08). 

Belveal discussed the situation with Jon Hawkins and Harold 

Putney after his conversations with Roland Heath. The first week 

in January 1990, Belveal called Stanley Kretoski to see if Vasquez had a justifiable discrimination complaint. (Tr. 109-lO)e 

Under Article 13 of the Collective Bargaining Agreement, 

Belveal understands that seniority and ability to do work govern 

who is transferred when a transfer needs to be made. Belveal 

feels that the company has a broad range in choosing who is 

transferred under these guidelines 0 and he did not raise 

Article 13 with Roland Heath when discussing Vasquez 0 transfero 

As far as Belveal knowsu vasquezvs transfer was made on the basis 

of seniorityo CTre 114-17)0 

Belveal's handwritten notes from December 1989 did not 

reflect that Roland Heath said "No, partlyu" in response to the 

question as to whether the transfer was based on the code-a-phone 

callo Al Payne, who was with Belveal at the time of Roland 

Heathvs statement, wrote that response in his noteso CTro 117)0 

Belveal remembers speaking to Bob Hanson, Director of Safety 

at the mine, and stating that they needed to do something about 

Vasquez's crew and its supervision prior to December 8, 1989u 

when the code-a-phone call occurred. (Tro 123). 

1028 
Belveal again told Bob Hanson that something had to be done 

about the crew and supervisor situation on Vasquez's crew after 

December 8, 1989. (Tr. 123-24). 

Belveal also talked to Mike Weigand, his manager, about the 

fact that Vasquez's crew and supervision needed to be changed. 

(Tr. 128). 

Although Vasquez complained to Belveal about gas problems on 

the longwall, the most vocal person on this subject was Jon 

Hawkins. Jon Hawkins is a member of the Safety Committee. No 

safety grievance was filed when the gas problems became acute in 

August 1989. (Tr. 129-31). 

MR. STANLEY KRETOSKI, a federal Coal Mine Inspector 

headquartered in Denver, Colorado, testified substantially as 

follows: 

Vasquez first called Kretoski in early January 1990 to discuss his transfer, and Kretoski told Vasquez that he had a right 

to file a discrimination claim. Kretoski conducted the actual 

investigation at the beserado mine. He spoke to Vasquez, Mike 

Yocum, Jon Hawkins, Roland Heath, and Rick Kendall during the 

investigation. (Tr. 137, 151, 152, 154). 

During his investigation, Kretoski learned that Vasquez had 

been transferred to a different crew and that he had a discrimination claim against management. This conclusion was based 

solely on a statement made by Heath to Belveal and Al Payne that 

the transfer was "partly" based on the code-a-phone call. (Tr. 

138-39). However, Kretoski did not interview or talk to Al 

Payne. He did not completely interview or take a statement from 

Gary Belveal. He did not ask Roland Heath or Rick Kendall 

whether the transfer was based on the code-a-phone call. (Tr. 

152v 154). 

Kretoski prepared Petitioner 1 s Exhibit 1, which itemizes 

Vasquez 1 s damages. Vasquez told him that his damages were the 

expenses of traveling to and from work four times a week, $200 

for wear and tear on his caru and $20 for long distance phone 

calls" Vasquez also said that he had lost overtime when he was 

transferred. Kretoski calculated the lost overtime based on five 

hours lost per pay period. He has no documentation for using 

five hours per pay period. Vasquez claims that during the first 

three quarters of 1990u the total lost overtime and interest 

totals $225.57. (Tr. 141-146). 

1029 
Kretoski did not look at any records from the Deserado Mine 

in compiling the overtime figures delineated in Petitioner's 

Exhibit 1. He is aware that management keeps records of overtime, but did not request to see these records when he was conducting his investigation at the mine, or in preparation for his 

hearing testimony. Kretoski spent one afternoon at the Deserado 

Mine in making his investigation. (Tr 155-56, 157). 

Respondent's Case 

MR. ROLAND HEATH the Mine Superintendent at the Deserado 

Mine for approximately one and one-half years testified substantially as follows: 

Heath was aware that there were gas problems in one section 

of the mine beginning approximately in August 1989. He does not 

specifically recall talking to Vasquez about the gas problems, 

but does recall discussing concerns about gas buildups with some 

of the crew members. He spoke to Norm Wallace many times about 

this problem--especially from late September to mid-November 1990. 

(Tr. 161-63). '·· . . .. 

Heath testified he thought that Norm Wallace was having problems with his crew from August through December 1989. Heath 

felt that Norm Wallace was generally ineffective with the crew in 

getting things accomplished. However, Heath left Norm Wallace on 

the crew for four months because he wanted Wallace to have the 

chance to work with the crew and solve the problems on his own. 

(Tr. 164-65). 

Both Rick Kendall and Norm Wallace mentioned to Heath that 

Vasquez's crew was giving them problems. The crew was not doing 

what it was toldu it was taking over and directing other workers 1 

and generally causing problemso The crew heckled Dewey King 8 and 

eventually it came to a point where King asked to be transferred 

to another crewo (Trs 165)0 

Vasquez and two other members of the crew, Jon Hawkins and 

Mike Yocum, were called the "cartel" by management because of the 

problems they were causingo (Tro 178)0 Heath testified that 00 these three guys were pushing people around 11 o They were VI doing 

things and kind of pushing Norm (their foreman) out of the way." 

They "bullied everybody else around and paid little attention to 

the foreman.~ (Tro 161). 

On December 12, 1989, there was a meeting between Roland 

Heath, Gary Belveal, Mike Weigand, Harold Putney (another member 

of the safety committee) and possibly a few others to determine 

1030 
what to do about the personnel problems on Vasquez's crew. Gary 

Belveal, UMW local 1984 President, made a strong push for changes 

on the crew because of the personnel problems. CTr. 166-67). 

After this meeting, Roland Heath spoke to Mike Weigand, his 

boss, and they decided to make some moves on the crews. They 

decided that the problems on the crew centered on the foreman 

Norm Wallace, Mike Yocum, Jon Hawkins and Louis Vasquez. 

Roland Heath met with his three shift supervisors (including 

Rick Kendall) on Monday, December 18, 1989, to decide what 

changes to make. (Tr. 167). 

The first decision made was to transfer Norm Wallace onto 

another crew. Roland Heath and the shift supervisors then decided to break up the "cartel" by transferring one of the members 

onto the other longwall crew. There are only two longwall crews 

in operation, so it made sense to transfer only one member of the 

"cartel," since two members of "cartel" would still end up together in any event. CTr. 169). 

Asked by the Solicitor "Why did you only move one man if you 

wanted to split up the crew?" Mr. Heath replied as follows: 

I'll go through it again. You got two crews 

that are very essentially all bid positions, in 

except for a few positions. But the guys that 

we're talking about have bid positions. Okay? 

You got three guys, you got two crews. All 

right? The only thing you can do, effectively 

--I mean you can 1 t--you 1 re moving two of them 

is crazy, so, because you got more people to 

move around. So really, the best thing to do 

is move one guyv leave the other two together. 

So itis--we just want a logical thing that 

helped to break this group upe We needed to 

move them. We can only move one. Now, we 

didn't go on discipline or anything like this. 

It was how to do this thing so that the foreman 

coming in donut have to contend with this group 

of three guys. 

(Tr o 17 9) • 

Heathis first choice was to move Mike Yocum, but he was the 00 papered man 11 on the shift and had to remain there to take over 

if the foremen were sick or there was an emergency. Having a 

papered foreman on each production shift is required by statute. 

(Tr. 168-69, 183-84). 

1031 
Because Mike Yocum could not be transferred, the only two 

other choices were Jon Hawkins and Louis Vasquez. From a seniority standpoint, Jon Hawkins had more seniority, and thus Vasquez 

was transferred to the other crew. (Tr. 168-69). 

A few days after Rick Kendall told Vasquez about his transfer, Belveal and another miner came in to speak to Heath. Heath 

explained that Belveal had already been aware that they were going to change the foreman and change the crew from the meeting on 

December 12, 1989. Sometime during this discussion, Vasquez 

stuck his head in the door and asked why he had been transferred. 

Heath tried to explain to him that he was not being singled out, 

but they were trying to split up the crew so that things would 

work out with the new foreman coming in. Heath did not tell 

Vasquez that he was the problem on the crew. He also did not say 

that Vasquez was transferred because of the code-a-phone call. 

(Tr. 175). 

After the transfer decisions were made, Heath wrote a letter 

to Norm Wallace explaining what he needed to do to improve his 

management skills. In this l~tter 1 Heath said that it was evident things weren't going very well down on the longwall face, 

and mentioned various problems which had been brought to his 

attention, including the code-a-phone call. (Tr. 177-78). 

Heath is aware that there was a code-a-phone call on 

December 8, 1989, but he does not know who made the call. (Tr. 

185-86}. 

Vasquez has never asked to be transferred back to his former 

crew. (Tr. 187). 

Heath had no objection to Vasquez's shutting down the longwall because of gas problems on his old crewo This was part of 

job and in accordance with company policyo Howeveru Vasquez 

would double check Norm Wallaceis safety checks as soon as 

Wallace had finished. This amounted to distrust of the foreman 

and this lack of respect and trust was one of the problems on the 

old crew. CTr. 193). 

It was part of Vasquez gs job as a shear operator to monitor 

and shut down the machine when it reached too high a methane gas 

levelo Vasquez was never disciplined for carrying out this portion of his job. (Tr. 195-96). 

GARTH CONDIE, Human Resources Director at the Deserado 

Mine, testified substantially as follows: 

1032 
Part of Candie's job is to maintain overtime turnsheets in 

order to try and equalize overtime among the employees in a particular department. The Collective Bargaining Agreement requires 

the mine to split up overtime among the workers. (Tr. 197-198, 

207). 

Condie's testimony was based upon the mine's records of 

overtime worked (or offered and refused by workers) from November 

1989 through the end of the third quarter of 1990. These overtime records were admitted as Respondent's Exhibit 4. (Tr. 205). 

The overtime worked (or offered to and refused) by Jon Hawkins 

and Vasquez is as follows: 

Period Ending Overtime Hours 

November 30, 1989 82 Hawkins 

72 Vasquez 

First Quarter, 1990 110 Hawkins 

96 Vasquez 

April 30, 1990 123.75 Hawkins 

107 Vasquez 

June 22, 1990 18.5 Hawkins 

12.5 Vasguez 

September 28, 1990 38 Hawkins 

71.5 Vasguez 

FINDINGS AND CONCLUSIONS 

In order to establish a prima facie case of discrimination 

under Section 105(c) of the Act 1 a complaining miner bears the 

burden of proving by a preponderance of the evidence that (1) he 

engaged in activity protected under the Act1 and (2) the adverse 

action complained of was motivated in any part by the protected 

activityo Secretary on behalf of Pasula v. Consolidation Coal 

Co.u 2 FMSHRC 2786u 2797-2800 {1980), rev'd on other grounds, sub 

nomo Consolidation Coal Co. v. Marshall 663 F.2d 6 1211 (3d Cir-o~ 

1981)9 Secretary on behalf of Robinette v. United Castle Coal 

Companyu 3 FMSHRC 803ff 817-818 (April 1980)u 

The mine operator may rebut a prima f acie case by showing 

either that no protected activity occurred or that the adverse 

action was in no part motivated by protected activity. If the 

operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also was 

1033 
motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected activity. Pasula, supra, Robinette, supra; see also Eastern Associated 

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

v. Stafford Construction Co., 732 F2d 954 CD.C. Cir. 1984); Baich 

v. FMSHRC, 719 F2d 194 (6 Cir. 1983) (specifically approving the 

Commission's Pasula-Robinette test). See NLRB v. Transportation 

Management Corporation, 462 U.S. 393 (1983}, approving a nearly 

identical test under the National Labor Relations Act. 

At the relevant time beginning about December 1988, Norm 

Wallace was the section boss or foreman of Complainant's crew. 

Complainant Louis C. Vasquez was the shear operator in that crew 

consisting of six underground miners working on a longwall face 

in the mine. Roland Heath, the mine superintendent, became aware 

of problems on the Complainant's crew when workers on that crew 

began complaining about personnel problems after Norm Wallace 

became the foreman. CTr. 160-61). These workers told Heath that 

there was a group of guys on the crew (including Complainant) who 

bullied crew members and pushed the foreman around. (Tr. 160-61). 

Three crew members asked to be Cand were) transferred off this 

crew after the personnel problems began. The personnel problems 

became so bad that mine management began calling Complainant and 

two of his co-workers, Jon Hawkins and Mike Yocum, the 11 cartel 11 

because of the problems they were causing. (Tr. 178). The "cartel" would double check the procedures and directions of their 

foreman as soon as he had finished. This showed a distrust of 

the foreman. 

Management also had another personnel problem on this crew. 

Superintendent Heath regarded foreman Norm Wallace as ineffective 

when it came to getting things accomplished with his crew. (Tr. 

163)0 Although Superintendent Heath became aware of escalating 

problems on the crew in August 1989q he left Norm Wallace on the 

crew for four more months in order to give him a chance to work 

things out and solve the problemso 

The personnel problems on Complainant's crew were also well 

known to the Union officials at the mine. Gary Belveal, president of Local 1984, discussed the problems on the crew with Bob 

Hansonf the Director of Safety at the mine on at least two occasions in early December, 1989. Belveal stated that they needed 

to do something about Complainant's crew and its supervision. 

(Tro 123)0 Belveal also told Mike Weigand, his manager, that 

something needed to be done to change the workers on Complainant 1 s crew and the supervisor. 

1034 
During the same time period as the personnel problems on 

Complainant's crew, there were also problems with methane gas on 

the section of the longwall where the crew was working. (Tr. 

24-5, 162-3). Complainant, in accordance with the operator's 

policy of complying with the methane safety regulations, would 

when the methane gas readings required it ask for all power on 

the longwall face to be shut down several times during his shift. 

Jon Hawkins requested shutdowns of the long wall because of this 

problem even more often than Complainant did. Neither was reprimanded or disciplined for doing this. It was a part of their job. 

From August to December 1989, Complainant talked to Rick Kendall, 

Norm Wallace's immediate supervisor, every day concerning the gas 

problems on the longwall. Jon Hawkins spoke to Gary Belveal, the 

Union president, about these gas problems during the fall of 

1989, but Belveal cannot recall Complainant's talking to him on 

this subject prior to December 18, 1989. No one on Complainant's 

crew was ever reprimanded for complaining about the gas problems 

to their foreman or other members of mine management. 

On December 12, 1989, Roland Heath decided to solve the personnel problems on Complainant's crew by transferring two people, 

the Complainant and foreman Norm Wallace, to different crews. 

(Tr. 166). The first decision was to transfer Norm Wallace to 

another crew because he had never overcome his problem in dealing 

effectively with Complainant's crew. The next decision centered 

on breaking up the "cartel" so that the new foreman would not 

have to walk into the same situation that Norm Wallace could not 

control. (Tr. 167). There are only two longwall crews, so the 

only solution was to move one of the three workers onto the other 

crew (because in any event, two members of the so-called cartel 

would still be on the same crew). 

Roland Heath and the shift supervisors wanted to move Mike 

Yocumv but Yocum was the 1'papered man" on the crew (the only one 

who could take over for the foreman in case of illness or an 

emergency o Thusv the only candidates for transfer were Jon Hawkins and the Complainant, and Complainant was chosen because he 

had less seniority than Hawkins. 

On December 8v 1989u someone from the mine made an anonymous 

"code-a-phonen call to MSHA to report a safety violation. Although Complainant alleges that members of the mine management 

connected him with the phone call, the uncontroverted evidence at 

the hearing established that Roland Heath did not, and still does 

not know who made the phone call and there is no evidence that 

anyone in management knows to this day who made the call. 

Complainant, as a result of the transfer, remained a shear 

1035 
operator at the same rate of pay. (Tr. 37). Although he claims 

to be getting less overtime than he did on his old crew, this 

claim is not entirely accurate. The overtime records for the 

mine (Respondent's Exhibit 4) indicate that although Complainant 

had slightly less number of overtime hours on his new crew 

through the third quarter of 1990 as Jon Hawkins had on the old 

crew (Tr. 203-05) during the period from May 5, 1990, through 

September 28, 1990, Complainant received 71.5 hours of overtime, 

while Jon Hawkins received only 38. It is also noted that Complainant has never requested, and is not now requesting, a 

transfer back to his former crew. (Tr. 208). 

On careful review of the evidence, I find there is no credible evidence linking the decision to transfer Complainant to another crew and any safety complaints or other protective activity 

in which he may have engaged. 

There is no reliable or credible evidence in the record to 

establish that Complainant was transferred to another crew because of protected activity ,§uch as complaining about gas problems on the longwall or because anyone thought that he may have 

made the code-a-phone call. I find no persuasive evidence on 

which to base an inference that Complainant's transfer was motivated by any protected activity. 

I credit the testimony of Superintendent Heath who made the 

decision to ,transfer Mr. Vasquez. He testified that the transfer 

was a business decision which had no relation to Complainant's 

safety complaints. The uncontroverted evidence at the hearing 

established that Mr. Heath did not know who made the code-a-phone 

call when he made the decision to transfer Complainant and still 

does not know who made the code-a-phone call. 

The sole reference to a possible connection between Complainant 0 s transfer and the code-a-phone call occurred when Gary 

Belveal used notes allegedly taken by another miner, Al Payne 

(who was not present at the hearing and did not testify), following a discussion between Belveal, Al Payne, and Roland Heath. 

However, these notes were not offered into evidence, and Gary 

Belveal did not testify that he had an independent recollection 

of what Roland Heath said at that meeting. 

I find Mr. Vasquez has failed to establish a prima facie 

violation of§ 105(c). He has not shown that his transfer was 

motivated in part by his safety complaints or other protected 

activity. There is no reliable evidence tending to show that 

Complainant was ever harassed or punished for his safety concerns, which everyone who testified agreed were part of his job 

1036 
duties. It is also noted that the uncontroverted evidence established that Jon Hawkins <who was not transferred) and not the 

Complainant, was the most vocal safety complainer on the crew. 

II 

Once a complainant has established a prima facie case of a 

violation of§ 105Cc), an employer may affirmatively defend by 

proving that although part of the motive in the discrimination 

was unlawful: (a) the employer was also motivated by the miner's 

unprotected activities: and Cb) the employer would have taken the 

same adverse action against the miner in any event for the unprotected activities alone. Pasula v. Consolidation Coal Co., 2 

MSHC at 1010. This affirmative defense must be established by a 

preponderance of the evidence and is known as the "mixed motive" 

test. Chacon v. Phelps Dodge Corp., 2 MSHC 1505, 1509 (1980). 

Once an employer establishes that it had a valid business reason 

for the alleged discrimination, then the court reviews only the 

credibility of the business decision--not its fairness. Id. at 

1511; Johnson v. Scotts Branch Mine, 4 MSHC 1631, 1632 (1987). 

Thus, the narrow issu~ is whe'ther the proffered reason was enough 

to have legitimately motivated the employer to have disciplined 

or as in this case transferred the miner. Chacon, 2 MSHC at 

1511. 

In Johnson v. Scotts Branch Mine, 4 MSHC 1631 (1987), a 

miner alleged he had been transferred to a less favorable position in retaliation for making safety complaints. Although safety complaints are obviously a protected activity under the Act, 

the Judge held that there was no evidence that the miner had been 

transferred for making them. In contrast, the evidence established that the miner was transferred as a part of a larger plan 

to eliminate problems on his former areas of complaints and lagging productiono The Judge dismissed the complaint, holding that 

the miner~s transfer was "well within the managerial and discretionary authority of mine management," and that mine management 

had sustained its burden of proof on its affirmative defense by 

establishing a valid business reason for the transfer. 

Like the Johnson case, mine management in the instant case 

had a valid business reason for transferring the Complainant. 

The evidence at the hearing established that mine management made 

a business decision to transfer the Complainant in order to solve 

the personnel problems on his crew. Further, Complainant was not 

singled out in any way--his foreman was also transferred to another (different) crew. These two transfers were made only after 

management decided that they were the best way to solve serious 

1037 
personnel difficulties on the crews (Tr. 166-69). In fact, the 

evidence also established that Complainant was not the first candidate for transfer-- but he was the final choice because the 

first choice was the "papered man" on the crew who had to remain 

because he alone could take over for an absent foreman, and the 

other member of the "cartel" had more seniority than Complainant. 

Because of this factual situation, Mr. Vasquez was the logical 

member of the cartel who could be transferred and the transfer 

would have occurred whether or not Complainant had made safety 

complaints or engaged in other protected activity. Thus, the 

transfer of Vasquez plus that of a supervisor was clearly part of 

a larger plan to solve a bad working situation on Complainant's 

former crew. 

western Fuels made a valid business decision in transferring 

the Complainant to another crew. Western Fuels has met its burden of proof under the mixed motive test by establishing that the 

transfer was based upon a valid legitimate, business decision. 

It was not a mere pretext. In Secretary of Labor/Chacon v. 

Phelps Dodge Corp. supra, the Commission in reversing the Administrative Law Judge's_ finding' of discrimination stated as 

follows: 

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 practice or on whether a particular adverse action was "just" or "wise." 

ORDER 

Based on the foregoing findings and conclusions, and on the 

basis of a preponderance of all of the credible testimony and 

most reliable evidence adduced in this case, I conclude and find 

that the Complainant has failed to establish that his transfer to 

another crew was discriminatory, or was motivated by the Respondent 1s intent to prevent him, discipline him or retaliate against 

him for exercising any protected rights with respect to his employment as a miner. Even had the Complainant established a 

prima facie case, I conclude that it was rebutted by the Respondent 1 s credible evidence which established that the transfer constituted a reasonable and plausible business-related and non-discriminatory effort by management to solve longstanding concerns 

1038 
about personnel problems on Complainant's former crew. It was a 

valid business decision. Accordingly, the complaint is 

DISMISSED. 

Distribution: 

st F. Cetti 

nistrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, co 80294 <Certified Mail> 

Richard S. Mandelson, Esq., WESTERN FUELS-UTAH, INC., 303 East 17 

Avenue, Suite #1100, Denver, CO 80203 (Certified Mail) 

Mr. Louis c. Vasquez, 628 Ft. Uncompahgre Street, Grand Junction, 

CO 81504 (Certified Mail) 

sh 

1039 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

CYPRUS EMPIRE CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

REVIEW ADMINISTRATION, 

Respondent 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

Intervenor 

DENVER, CO 80204 

JUN 271991 

: 

. . 

: 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 91-454-R 

Citation No. 3410886; 6/3/91 

Docket No. WEST 91-455-R 

Citation No. 3410887; 6/3/91 

Docket No. WEST 91-456-R 

Citation No. 3410889; 6/4/91 

Eagle No. 5 Mine 05-01370 

DECISION 

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll Professional corporation, Pittsburgh, Pennsylvania, 

for Contestant; 

Margaret A. Miller, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Respondent; 

Robert L. Jennings, Representative of United Mine 

workers of America, Price, Utah, 

for Intervernor. 

Beforeg Judge Morris 

This is a contest proceeding arising under the Federal Mine 

Safety and Health Actq 30 U.S.Co § 80lu et~ (the "Act")o 

An expedited hearing on the merits was held in Denver, 

Coloradou on June 11, 1991. 

The parties waived receipt of the complete transcript but 

filed post-trial briefs and further requested an expedited 

decision" 

ISSUE 

Whether striking employees who selected Dean Carey to represent them as a walk-around representative are considered to be 

"miners" as defined in § l03(f) 1 of the Act. 

1 Section 103(£) of the Act provides as follows: 

"Cf> Subject to regulations issued by the 

Secretary, a representative of the operator 

1040 
Enforcement activities: on June 3, 1991, MSHA Inspector 

Ervin St. Louis issued Citation No. 3410886 for a violation of 

§ 103Cf) of the Act. The text of the citation is set forth in 

paragraph 5 of the stipulation, infra. 

On the same day, approximately 40 minutes later, the inspector issued Order No. 3410887. The text of the order is set forth 

in paragraph 6 of the stipulation, infra. 

On June 4, 1991, the inspector issued Order No. 3410889. 

The text of the order is set forth in paragraph 11 of the stipulation, infra. 

fn. 1 continued 

and a representative authorized by his miners 

shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical inspection of any coal or other 

mine made pursuant to the provisions of subsectiort Ca), for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine. Where there 

is no authorized miner representative, the Secretary or his authorized repesentative shall 

consult with a reasonable number of miners concerning matters of health and safety in such 

mine. Such representative of miners who is also an employee of the operator shall suffer no 

loss of pay during the period of his participation in the inspection made under this subsection a To the extent that the Secretary or authorized representative of the Secretary determines that more than one representative from 

each party would further aid the inspection, 

he can permit each party to have the equal 

number of such additional representativeso 

Howeverq only one such representative of miners 

who is an employee of the operator shall be 

entitled to suffer no loss of pay during the 

period of such participation under the provisions of this subsection. Compliance with 

this subsection shall not be a jurisdictional 

prerequisite to the enforcement of any provision of this Act. 

1041 
The inspector later modified the order to state that Order 

No. 3410887 had not been modified, vacated, or terminated (with 

the exception of a time correction). 

STIPULATION 

At the hearing the parties stipulated as follows: 

1. Empire operates Eagle Number 5 Mine, I.D No. 05-01370, 

located in Craig, Colorado. It is an underground bituminous coal 

mine and is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977. 

2. The administrative law judge has jurisdiction over these 

proceedings under Section 105Ca) of the Act. 

3. The citations, orders, and modifications thereto were 

properly served by a duly authorized representative of the Secretary upon an agent of Empire at the dates and places therein, and 

may be admitted into evidence for the purpose of establishing 

their issuance. 

4. Citation No. 3410886 was issued on June 3, 1991, at 6:05 

a.m., pursuant to Section 104(a) of the Act, 30 u.s.c. 814(a), 

and alleged a violation of 103Cf) of the Federal Mine Safety and 

Health Act of 1977. 

5. Under the heading and caption, condition, or practice, 

Citation No. 3410886 alleges as follows: 

The representative of the miners requested at 

the mine off ice the right to accompany an MSHA 

authorized representative of the Secretary during an MSHA Triple A inspection. Mine management refused entry to the mine property. The 

miners are on strike and have pickets on the 

road to the mine outside of the mine property. 

Mine management denied the representative of 

the miners entry on mine property to accompany the authorized representative during the 

inspection conferenceo The citation was not 

designated significant and subtantial and the 

time for abatement was set of 6:45 a.m. 

6. The contest of Citation No. 3410886 is docketed at 

number WEST 91-454-R. After Citation No. 3410886 was issued, 

Order No. 3410887 was issued pursuant to Section 104(b) of the 

act for failure to abate Citation No. 3410886. Under the heading 

and caption, condition, or practice, Order No. 3410887 alleges as 

follows: 

1042 
Mine management would not allow the representative of the miners to accompany the authorized 

representative of the Secretary during the Triple 

A inspection of the mine. Cyprus Empire Corporation management refused admittance of the United 

Mine Workers of America, Local 1799, members to 

be present as miners representatives in the course 

of the Triple A regular inspection, and any MSHA 

discussion of actions during this period UMWA 

memberships is on strike. 

7. The miners on the job have elected Mr. Jim Shubin as 

their representative. 

8. A subsequent modification was issued, modification number 3, to the order amending the body of the order and putting 

the words at the beginning of the second paragraph. The company's position is that the miners on the job have elected Mr. Jim 

Shubin as their representative. 

9. The contest of Orde·r No., 3410887 is docketed at WEST 

91-455-R. 

10. Citation No. 3410889 was issued on June 4, 1991, pursuant to Section 104(b) of the Act for a failure to abate Citation No. 3410886. 

11. Under the heading and caption, condition, or practice, 

Citation No. 3410889 alleges as follows: 

The operator, Cyprus Empire Corporation, continues to refuse the miners' representative 

the right to accompany authorized representative of the Secretary during the Triple A 

inspection being conducted at the Eagle No. 

5 Mineu I.Do 05-013700 The operator continues to maintain the mine in operable condition 

and operates the long wall when needed to protect the tailgate and the long wall itself 

from adverse conditions. 

The inspector subsequently issued a modification and added 

that Order Noa 3410887 had not been modified, vacated, or terminated (with the exception of the time correction}" 

12. The contest of Citation No. 3410889 was docketed at 

WEST 91-456-R. 

1043 
13. On May 12, 1991, the collective bargaining agreement between Empire and its hourly employees expired. The hourly employees are represented by the United Mine Workers of America for 

the purpose of collective bargaining. There is presently no collective bargaining agreement in effect. The hourly employees 

commenced the strike on or about May 13, 1991, related to the negotiatons over a new collective bargaining agreement. Thereafter, Empire resumed mining operations utilizing its salaried 

employees. 

14. The mining operations include operation of the longwall 

mining equipment in order to move the long wall face forward to 

avoid adverse mining conditions. Other mining activities include 

mine maintenance-type work, including pumping and building of 

ventilation control. 

15. The employees working at the Eagle No. 5 Mine on June 3, 

1991, selected James A. Shubin as their representative for the 

purpose of accompanying MSHA inspector Irvin St. Louis during his 

AAA inspection of the Eagle No. 5 mine on those days and all 

subsequent days. Mr. Shubin accompanied Mr. St. Louis on his 

inspections. 

16. Prior to May 13, 1991, the following hourly employees, 

who are members of the United Mine Workers and who worked at the 

mine, were designated pursuant to 30 C.F.R. § 40.30 as representative of the employees: Dean carey, Eugene Vezie, and Chencho 

Salazar. such persons are currently on strike and, moreover, the 

persons who designated such persons as their representatives are 

currently on strike. 

170 On Monday, June 3, 1991, Inspector St. Louis arrived at 

the Eagle No. 5 Mine for the purposes of conducting a regular 

quarterly inspection. At that time he indicated that Dean Carey 

wished to accompany him as a walk-around. 

180 Empire refused to permit Dean Carey or any other UMW 

official or representaive to enter the mine and accompany Inspector St. Louis during the inspection. 

19. At the time of his inspection on June 3u 199lv Inspector 

St. Louis was informed of Empire 1 s position and that conversations with MSHAas District 9 office had been conducted 

previously. 

200 On June 3, 1991, Solicitor Margaret Miller informed 

Counsel for Empire, R. Henry Moore, that if Empire contested the 

citation, and requested an expedited hearing, MSHA would not 

implement Section llO(b) of the Act nor propose a civil penalty 

of up to $5,000 for each day that a failure to correct occurred. 

1044 
THE EVIDENCE 

The evidence is uncontroverted: IRVIN ST. LOUIS of Craig, 

Colorado, has been an MSHA inspector for 11 years. He is 

experienced in mine safety. 

On June 3, 1991, Inspector St. Louis intended to conduct an 

AAA inspection at Eagle No. 5 Mine. This was the first inspection since the miners, represented by UMWA, had gone on strike at 

the mine. 

On June 3, 1991, the inspector met Dean Carey of the UMWA 

and Bill Ivy, Mine Manager. Mr. Carey requested the right to 

travel with the inspector, but Mr. Ivy refused. Mr. Ivy stated 

that the miners had elected Jim Shubin as the miners' safety 

representative. 2 On previous occasions, Carey, Shubin, and Ivy 

had traveled with the MSHA inspector. 

After some discussion, the inspector wrote a 104Ca) citation. 

When the Company did not agree to let Mr. carey travel with him, 

a Section 104Cb) was issued~ (See Exs. S-1, S-2, S-3). 

Mr. Ivy gave no indication the Company would comply and the 

original citation remains in effect at the time of the hearing. 

On May 30, 1991, a UMWA picket line had been set up at the 

mine. 

Inspector St. Louis conducted his normal inspection on 

June 3, 4, and 5, 1991. 

DEAN CAREY, a person experienced in mining, is currently 

on strike at the Eagle Noo 5 Mine. 

Mro Carey is a bargaining representative of the UMWA and the 

chairman of the Mine Safety Committee. He has accompanied federal inspectors and has been the walk-around representative at 

the mine of nine years. 

The entire bargaining unit of the UMWA went on strike at the 

mine on May 130 No UMWA member has crossed the picket line. 

Mro Carey learned from the picket line that Mr. St. Louis 

was to conduct an inspection. He requested permission from 

Mro Ivy to accompany the inspector. Mr. Ivy refused the requesto 

2 Mr. Shubin is a safety inspector for Empire. 

1045 
The mine has been a strike four weeks and one day. The last 

bargaining session was May 10, 1991. Mr. Carey expects further 

bargaining sessions; further, he expects to resume work. 

A strike six years ago lasted 79 days. The striking miners 

receive compensation from the union strike fund. 

Mr. Carey wants to do a walk-around inspection to be sure 

the mine is safe when the miners return. As a miners' representative, Mr. Carey can request a Section 103Cg) inspection. 

JOHN CAYLOR, a person experienced in mining and safety, 

works for Empire's parent company, Cyprus Coal. 

After the citation and order were issued, Mr. Caylor contacted William Holgate, MSHA's District 9 manager. He was attempting to avoid additional failure to abate orders. He further 

advised Mr. Holgate that Empire intended to challenge the 

citations. 

The company has had good,"relations with MSHA and, if possible, he hoped that litigation could be avoided. 

The witness believed there was a principle involved. The 

safety of the miners was not at risk since they were not underground. Further, he felt a failure to abate order would indicate 

Empire was a recalcitrant operator. The company wanted to avoid 

such an impression. 

Mr. Caylor acknowledged that Mr. Carey had been designated 

as a walk-around representative by the UMWA. Mr. Shubin had been 

so designated before Inspector St. Louis and Mr. Carey arrived at 

the mine off ice. 

DALE IVYv the mine general managerv has been engaged in 

mining since 1969. 

The collective bargaining agreement expired on May 12, 1991. 

Since then, coal has been mined on a limited basis, one shift a 

day. The salaried workers underground are not members of the 

UMWA. The hourly employees have not been replaced. 

The underground workers have rock-dusted, conducted weekly 

examinations, and run the longwall once a week to prevent adverse roof conditiions from developing. 

On June 3, Mr. Ivy talked to Inspector St. Louis. He further read Section 103(f) of the Act and stated that Jim Shubin of 

1046 
the safety department had accompanied the MSHA inspector. He 

further decided Mr. Carey should not accompany the inspector because the UMWA was on strike. On June 3, and 4, Mr. Shubin in 

his walk-around was representing both the miners and the 

operator. 

When the citation was issued, Mr. Ivy told the inspector the 

company was complying with the Act. 

JERRY TAYLOR, an engineering coordinator for MSHA, 

processes all of the requests submitted to MSHA that require 

approval. 

In Mr. Taylor's opinion, Inspector St. Louis gave the 

operator a reasonable time to abate the citation. Abatement 

could be accomplished by the company's agreeing to Mr. Carey's 

request to accompany the inspector. 

For various reasons, MSHA does not allow a hearing on the 

merits before issuing a failure to abate order. 

The paperwork supporting Mr. Shubin as a walk-around representative was receivd by MSHA on June 10, 1991. 

It is MSHA's view that Mr. Shubin does not represent the 

miners. He represents the operator since he was chosen by 

salaried management employees and not miners. 

MSHA's policy manual and publications do not address situations where the miners are on strike. At the time of the hearing, the striking employees are not doing anything at the mine. 

DISCUSSION 

The issuev as set forth above 1 can be simply restated: 

Are striking employees entitled to walk-around rights under 

Section 103(f) of the Act? 

There is no exact precedent controlling in this factual 

situation but several cases have considered closely related 

issueso 

As a threshold matter: Section 3(g) of the Act defines a 

~miner~ as ~000 any individual working in a coal or other mine.H 

It is further uncontroverted that no union miners had worked 

underground since the strike had begun. 

In Westmoreland Coal Company, 11 FMSHRC 960 (1989), the Commission reviewed the issue of whether individuals who obtained 

1047 
training at their own expense during a layoff were entitled to 

reimbursement. The Commission held that individuals in a layoff 

status are not miners. 11 FMSHRC at 964. 

In Emery Mining Corporation v. Secretary of Labor, 783 F.2d 

155 CC.A. 10 1986), the operator refused to compensate its miner 

employees for training they received before they were hired. In 

ruling that the company's policy did not violate the Act, the 

Court noted that none of the Complainants therein were miners or 

employed by the operator at the time they took the training. If 

they were not "miners," they were not entitled to compensation, 

783 F.2d at 159. 

In Brock on behalf of Williams v. Peabody Coal Company, 822 

F.2d 1134 (D.C. Cir. 1987), the operator, in rehiring laid-off 

employees, passed over some individuals at the top of the list 

because they had not received safety training. In ruling against 

the Secretary's position, the Court determined that the miners 

were on layoff and not working in a coal mine. In sum, individuals in layoff status are not miners. See also the recent final 

decision of Commissiqn Judge'"Avram Weisberger involving miners on 

strike in Aloe Coal Company, 12 FMSHRC 2113 (October 1990). 

In support of their positions, the Secretary and the Intervenor rely on an oral order of Commission Judge James A. Broderick in Clinchfield Coal Company, 3 Va 89-67-R. 

In Clinchf ield the operator was contesting an MSHA closure 

order. Over the operator's objections, Judge Broderick permitted 

the UMWA to intervene as a representative of miners under Section 

3(g) of the Act. 

By way of analogyu Judge Broderick observed thatv under the 

Labor Management Actv striking employees are nevertheless treated 

as employees and are entitled to the protection afforded by the 

Labor Acto 

3 Judge Broderick 1 s decision, published at 11 FMSHRC 1568 

Cl989)u does not discuss his prior oral order. Further, the 

Commission in its review did not discuss the issue, 11 

FMSHRC 2120 Cl989)o The reference to the rights of the 

striking miners arises from a transcript containing Judge 

Broderick's order. The transcript was attached to Petitioner's brief. 

1048 
The Judge further observed in Clinchf ield that the UMWA and 

the company were engaged in bargaining efforts. In addition, a 

settlement of the strike could result in miners' returning to 

work. 

Judge Broderick distinguished those cases involving individual rights, claims for compensation, and training provisions. 

He indicated such cases are essentially different from those situations where miners are entitled to participate in challenges to 

closure orders. 

Judge Broderick's statement as to "training provisions" 

appears to be a reference to Emery Mining Corporation, supra. 

However, the training of miners can be just as critical as 

walk-around rights under Section 103(f) of the Act. 

On the basis of Clinchf ield, the Secretary presents a strong 

argument to distinguish five established cases. However, the 

Commission and the Appellate Court have not gone beyond the plain 

meaning of the statutory words in Section 3Cg). 

In short, the miners involved in this case were "not working 

in a coal or other mine." Hence, they do not qualify as miners 

under Section 103Cf). 

For the foregoing reasons, I enter the following: 

ORDER 

1. The contest of Citation No. 3410886 is SUSTAINED and 

the citation is VACATED. 

2o The contest of Order No. 3410887 is SUSTAINED and 

the order is VACATEDo 

3o The contest of Order Noo 3410889 is SUSTAINED and 

the order is VACATED. 

Law Judge 

Distribution: 

R. Henry Moore, Esq., BUCHANAN INGERSOLL, P.C., USX Tower 57th 

Floor, 600 Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

1049 
Margaret A. Miller, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1585 Federal Office Building, 1961 Stout 

Street, Denver, CO 80294 (Certified Mail) 

Robert L. Jennings, Representative of UMWA, P.O. Box 84501, 

Price, UT 84501 (Certified Mail) 

ek 

1050 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

May 29, 1991 

DONALD NORTHCUTT, GENE MYERS, 

AND TED EBERLE, 

Complainants 

v. 

IDEAL BASIC INDUSTRIES, INC., 

Respondent 

ORDER 

DISCRIMINATION PROCEEDING 

Docket No. CENT 89-162-DM 

Ada Quarry & Plant 

The Commission, after granting interlocutory review, has 

remanded the above ca;ie and drrected ·the Judge to consider the 

present Section 105(c)C3) complaint in light of the principles 

set forth in the Commission decision of Bradley v. Belva Coal 

Company, 4 FMSHRC 982 (June 4, 1982), ·2 MSHC 1729. The order 

of remand appears at 13 FMSHRC 327 (March 1991). 

The parties filed .briefs on the issues raised by the order 

of remand. 

It is necessary to analyze the question of whether the dismissal of the Northcutt, Myers, and Eberle counterclaim in the 

U.S. District Court (Case No. 88-186-C) precludes litigation of 

their Mine Act claim or issues arising under that claim. 

Since. this case arises under a federal statuteu the federal 

la;w of preclusionu rather than state law, must provide the criteria for analysis. Maher v. City of New Orleansv 516 F.2d 1051, 

1056 (5th Cir. 1975), cert. denied, 426 U.S. 905 (1976). 

Under the federal doctrine of ~ judicata, a judgment by a 

court of competent jurisdiction on the merits in a prior suit 

bars a second suit involving the same parties or their privies 

based on the same claim. Lawlor v. National Screen Service 

Corp., 349 U.S. 322, 326 (1955); Commissioner v. Sunnen, 333 U.S. 

591, 597 (1948). ~ judicata also forecloses litigation in a 

second action of grounds for, or defenses to, the first claim 

that were legally available to the parties, even if they were not 

actually litigated in the first action. Brown v. Felsen, 442 

U.S. 127, 131 (1978). Res judicata may be applied to the decision of administrative agencies acting in a judicial capacity. 

In this case, the crucial ~ judicata question is whether Complainants• state and federal claims action are identical; if they 

are not, ~ judicata is inapplicable. See Newport News Ship 

Building & Dry Dock v. Director, 583 F.2d 1273, 1278 <4th Cir. 

1978), cert. denied, 440 u.s. 915 <1979). 

1051 
ISSUES 

As specified in the Commission's order of remand, it appears 

that the Complainants' surviving allegations are that they were 

illegally discharged because they had engaged in two protected 

activities: 1) filing workers' compensation claims based on disabilities allegedly caused by hazardous conditions at the Ada 

Quarry and Plant; and 2) making safety complaints to supervisors 

and agents of Ideal, 13 FMSHRC at 329. 

The order of remand directed the Judge to analyze the issue 

of res judicata and its impact on matters arising under the Mine 

Act. 

RES JUDICATA 

Bradley v. Belva outlines the legal requirements necessary 

to support the doctrine. 

In part, Bradley requires the following: 

1. The party asserting the doctrine must prove all of the 

elements necessary to establish it. 

2. There must be an identity of claims or of issues. The 

Commission further defines a claim for res judicata purposes as 

one that looks not only to the operative facts, but also to the 

substantive legal protection that may be afforded a miner under 

different statutes. 

3. In cases of overlapping federal and state regulation, 

federal supremacy may, in effect, bar proceedings under a state 

law that conflicts with a federal statute. 

Exceptions to the applicability of. the preclusion doctrine 

include situations where there are reasons to doubt the qualityu 

extensiveness, or fairness of procedures followed in prior 

litigation. 

Section 105(c)(l) of the Federal Mine Act statute provides 

as follows~ 

No person shall discharge or in any manner discriminate against or cause to be discharg~d 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 

1052 
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 saf~ty or health violation in a 

coal or other mine, or because such miner, representative or miners or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to section 101 or 

because such miner, representative of miner or applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this 

Act or has testified or is about to testify in any 

such proceeding, or because of the exercise by such 

miner, repesentative or miners or applicant for employment on behalf of himself or others of any statutory right afforded by this Act. 

The counterclaim filed by Complainants in the U.S. District 

Court, and later dismissed, alleged as. follows: 

1. The Defendants incorporate by reference the 

jurisdictional allegations contained in the Complaint of Ideal Basic Industries, Inc., paragraphs 

1, 2 , 3 , and 4. 

2. The individual Defendants in this case have 

filed workers' compensation claims against the Plaintiff under the Workers' Compensation Act for the State 

of Oklahoma before the Workers' Compensation before 

Workers' Compensation Court. 

3o The Plaintiff, Ideal Cement Company, Inc.u 

has conducted a pattern of harassment and intimidation against the individual Defendants because they 

have maintained workers 1 compensation claims. 

4. The individual Defendants were employed by 

the Plaintiff corporation at cement plant in Ada, 

Oklahoma; a) that the Defendants, in good faith, 

have filed workers 6 compensation calims against the 

Plaintiff; b) that the Defendants retained a lawyer 

to represent them in the workers' compensation claims; 

c) that the Defendants instituted in-good faith a 

proceeding under Title 85 of the Oklahoma Statutes; 

d) that the Defendants have testified before the 

Workers 1 Compensation Court of the State of Oklahoma. 

Because of this, Defendants' employment with the 

Plaintiff has been terminated. The Plaintiff terminated the employment of the Defendants in violation 

of 85 o.s. Section 5, 6, 7. 

1053 
5. The Defendants, who have been wrongfully discharged in violation of the Workers' Compensation Laws 

of the State of Oklahoma, are entitled to a sum of 

money equal to the Defendants' loss of earnings, both 

past and future. 

6. Discharging the Plaintiffs [sic] in violation of 

the Workers' Compensation Laws of the State of Oklahoma, the Plainti.ff subverted the purpose of the Workers' Compensation Laws and has been guilty of oppression and malice for which the Defendants are entitled 

to punitive damages in the amount of $400,000.00. 

7. As a result of the discharge of the Defendants 

from the employment of the Plaintiff in violation of 

the Workers• Compensation Law of the State of Oklahoma, 

the Defendants have been caused pain, embarrassment, 

humiliation, and mental anguish, and have been damaged 

in the sum of $4,000,000.00. 

The counterclaim_ in the'U.S. District Court was dismissed on 

June 2, 1989. 

The Court's order .. :of dismissal provided as follows: 

2) Defendants Eberle, Myers, and Northcutt (the 

only Defendants with any presently pending counterclaims against the Plaintiff Ideal) voluntarily 

dismiss with prejudice their counterclaims heretofore raised and outstanding in this lawsuit against 

Plaintiff Ideal under 85 o.s. Sections 5, 6, and 7 

for workers' compensation retaliation wrongful dischargeo By this voluntary dismissal pursuant to 

Rule 4l{a) FoR.C.Po contained herein, Defendants 

Eberlyu Myersu and Northcutt make no admissions 

whatsoever regarding liability under, or regarding 

the validity of any claims heretofore raised or outstanding in ths action or hereby dismissed. 

The Oklahoma statute 85 O.S. § Su 6u and 7u under which the 

counterclaim was brought, provided as follows~ 

No person, firm, partnership or corporation 

may discharge any employee because the employee 

has in good faith filed a claim, or has retained 

a lawyer to represent him in said claim, instituted or caused to be instituted, in good faith, 

any proceeding under the provisions of Title 85 

of the Oklahoma Statutes, or has testified or is 

10 54 
about to testify in any such proceeding. Provided no employer shall be required to rehire or 

retain any employee who is determined physically 

unable to perform his assigned duties. 

Section 6 of Chapter 85 relating to damages provides as 

follows: 

§ 6. Penalties-~Damages 

Except as provided in Section 29 of this act, 

a person, firm, partnership or corporation who violates any provision of Section 5 of this title 

shall be liable for reasonable damages, actual and 

punitive if applicable, suffered by an employee as 

a result of the violation. An employee discharged 

in violation of the Workers' Compensation Act shall 

be entitled to be reinstated to his former position. 

Exemplary or punitive damage awards made pursuant 

to this section shall not exc.eed One Hundred Thousand Dollars ($100,(:f0.00). The burden of proof 

shall be upon the employee. 

Section 6.1 of· Chapter 85 of the Oklahoma Statutes addresses 

the liability of the State of Oklahoma and Section 7 thereof 

vests jurisdiction on the district courts of the State of 

Oklahoma. 

As the Commission noted in its order of remand, it is necessary to examine both the facts and the substantive legal protection afforded a miner under both statutes. 

DISCUSSION 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof in establishing that (1) he 

engaged in protected activity and (2) the adverse action complained of was motivated in any part by that protected activityo 

Secretary on behalf of Pasula Vo Consolidation Coal co., 2 FMSHRC 

2786u 2797-2800 (October 1980), rev 1 d on other grounds sub nom., 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); 

Secretary on behalf of Robinette v. United Castle Coal co., 3 

FMSHRC 817-818 (April 1981). 

In examining the respective statutes, I find there are 

several areas of difference in the legal protection afforded 

miners. 

1055 
A comparison of the Federal Mine Act and the Oklahoma stat~ 

utes indicates that under the Federal Act miners who make safety 

complaints to a company's supervisors and agents are generally 

protected in that activity. In its order or remand the Commission noted that the allegations by Messrs. Northcutt, Myers, and 

Eberle of such complaints survived in the instant case. 13 

FMSHRC at 329. 

On the other hand, the relevant Oklahoma statutes, cited 

above, deal with the filing of Workman's Compensation proceedings. 

The Oklahoma statutes and the cases annotated thereunder do not 

indicate that safety complaints are an activity protected under 

Oklahoma law. In enacting the Federal Mine Act, Congress considered the protection of miners making safety complaints to be an 

important facet of the Act. 

Ideal vigorously argues that the filing of the Workman's 

Compensation cases were not independent from the safety complaints. Rather, "their safety complaint was their Worker's 

Compensation claim. 11 I reject Ideal's. argument. There is no 

evidenciary record in, this case and as presiding judge, I must 

necessarily deal with the allegations of Complainants. 

A further dif f·erel}ce lies in the respective burdens of proof. 

The requirements for a miner to establish a prima facie case are 

outlined above. By way of a defense: 

The operator may rebut the prima f acie case by 

showing either that no protected activity occurred 

or that the adverse action was in no part motivated 

by protected activity. If an operator cannot rebut 

the prima facie case in this manner it may nevertheless affirmatively defend by proving that (1) it was 

also motivated by the miner 1 s unprotected activities, 

and (2) it would have taken the adverse action in any 

event for the unprotected activities alone. The operator bears the burden of proof with regard to the 

affirmative defense. Haro v. Magma Copper co., 4 

FMSHRC 1935u 1936-1938 (November 1982). The ultimate 

burden of persuasion does not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. See also 

Baich v. FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983); 

Donovan v. Stafford Const. Co., 732 F.2d 954, 958-159 

(D.C. Cir. 1984) (specifically approying the Commission1 s Pasula Robinette test); and Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 (December 

198 6) • 

On the other hand, the Oklahoma burden of proof was described in Buckner v. General Motors Corp., 760 P.2d 803 (Okla. 

1056 
1988). The Court stated, in reference to the rebuttal of a prima 

f acie case: 

the employer need not persuade the Court that it 

was actually motivated by the proffered reasons. 

The employer's burden is a burden of production 

of relevant and credible evidence, not a burden 

of persuasion .••• if the employer carries this 

burden of production, the presumption raised by 

the prima facie case is rebutted and the factual 

inquiry proceeds to a new level of specificity. 

760 P.2d at 807. 

A further difference lies in the remedy of temporary reinstatement of a miner. See Commission Rule 44, 29 C.F.R. 

§ 2700.44. The Oklahoma law contains no such remedy. 

A further difference lies in the remedy of attorney's fees. 

The Federal Mine Act authorizes such award but the Oklahoma statutes lack such a provision. 

, 

For the foregoing reasons, I conclude that the remedies 

under the Federal Mine Act are substantially different from those 

under the Oklahoma Statute. 

Ideal contends that the controlling case in this situation 

is the Supreme Court decision of Kremer v. Chemical Construction 

Corp., 456 U.S. 461 (1982) and on the basis of Kremer its motion 

to dismiss should be granted. 

I do not find Kremer to be controlling. Specifically, the 

Supreme Court decided that a federal court in a Title VII case 

snbuld give preclusive effect to a decision in a state court upholding a state administrative agency 1 s rejection of an employment discrimination claimo 

The EEOC complainant did not prevail in the state proceedings and he thereafter brought a Title VII action claiming discrimination on the basis of national origin and religion. 

In Belvav the Commission distinguished Kremer, 4 FMSHRC at 

987 fn, 5, It is not necessary for the undersigned to further 

restate the Commission ruling. 

For the reasons stated herein, the motion of Respondent to 

dismiss on the basis of res judicata is DENIED. 

1057 
The hearing will commence as scheduled on June 25, 1991, in 

Tulsa, Oklahoma. 

Distribution: 

o-71-,..._.--N 

rative 

rris 

~ 

Law Judge 

Tel. (303) 844-3912 

FAX (303) 844-5268 

Ben_A. Goff; Esq. 0 GOFF & MEADOR, 6301 Gaston Avenue, Suite 725u 

DalYasu TX 75214-6206 (Federal Express) 

Michael Towersu Esq." FISHER & PHILLIPS, 1500 Resurgens Plaza, 

945 East Paces Ferry Road, Atlanta, GA 30326 <Federal Express) 

J. Warren Jackmanu Esg.u PRAY, WALKER, JACKSON, WILLIAMSON & 

!'1ALLAR 0 Ninth Floor 9 Oneok Plazaw Tulsa, OK 74103 (Federal 

Express) 

ek 

1058 
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 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DON FRAZE, Employed by 

LITER'S QUARRY OF INDIANA, 

INCORPORATED, 

Respondent 

SECRETARY OF.LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RANDEE LANHAM, Employed 

LITER'S QUARRY OF INDIANA 

INCORPORATED, 

JUN 0 5 1991 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-63-M 

A.C. No. 12-00004-05530-A 

Atkins Plant 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-73-M 

A.C. No. 12-00004-05529-A 

Atkins Plant 

ORDER DENYING MOTIONS FOR SETTLEMENT 

On April 19 1991, these cases were scheduled for hearings 

to commence on June 12, 1991. On June 4, 1991, the Secretary 

filed a pleading captioned "Motion to Approve Settlement and to 

Dismiss'' regarding both cases. The Secretary seeks to waive the 

proposed civil penalty of $600 for Mr. Lanham's "knowing" 

violation of the cited standard based upon undisclosed 

"information received that he is no longer in the mining business 

and has serious financial problems." Without any factual support 

for the bald allegations however, they cannot provide a basis for 

any reduction in penalty. The Secretary is without authority, 

moreover, to "waive" a civil penalty for violations of a 

mandatory health or safety standard. See section 110 Federal 

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

The Secretary also seeks a 50 percent reduction for the $500 

penalty proposed against Mr. Fraze. The unchallenged assessment 

notice states in part as follows: 

1059 
on March 26, 1990, Section 107(a) Order 3441990 was 

issued to Liter's Quarry of Indiana, Incorporated, at 

the Atkins Plant. The mine operator was cited for a 

violation of 30 C.F.R. § 56.11001 because safe means of 

access was not provided for travel around the primary 

crusher or to its booth. The flooring had been removed 

and persons were required to work or travel near the 

opening around the crusher. 

The gravity of the violation was serious, and the 

violation could have contributed to a fall-of-person 

accident. 

Evidence developed during an MSHA investigation of the 

circumstances surrounding the issuance of the 107(a) 

Order indicates that you had been aware of the opening 

created by the removal of the flooring around the 

crusher but did nothing to prevent persons from working 

near the area while the crusher was in operation. 

In attempting to_ justify· the proposed reduction in penalty 

the Secretary does not deny that Mr. Fraze knew of the violative 

condition and that he did nothing to protect employees required 

to work in the area from falling into the operating crusher but 

states only that Mr. Fraze "wanted to observe how ... new 

bearings were working before putting back the flooring." I 

cannot accept this rationale for any reduction in penalty. If 

anything it is an aggravating circumstance. 

Accordingly, the Motion for Settlement is denied and the 

hearings previously set will proceed as sched~led. Secretary v. 

Wilmot Mining Co., 9 FMSHRC 684 (1987); Knox ctount Stone 

Ga y Melick 

ActIDinis5rative 1\· aw Judge 

103-756

1 1

6261 ! 

\ I " 

Distribution: V 

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 

(Certified Mail) 

Mr. Randy Miller, Mr. Don Fraze, Liter's Quarry, Inc., 6610 Haunz 

Lane, Louisville, KY 40241 (Certified Mail) 

/fb 

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