February 1982 

Commission Decisions 

2-04-82 Eastover Mining Co. VA 80-84 

2-05-82 Northern Coal Co. WEST 80-313-D 

2-16-82 Homestake Mining Co. CENT 79-27-M 

2-16-82 MSHA & Local 5024, United Steel Workers LAKE 79-202-M 

v. White Pine Copper Division, Copper Range Co. 

2-16-82 Climax Molybdenum Co. DENV 78-553-M 

2-25-82 U.S. Steel Corp. BARB 76-95 

2-25-82 Consolidation Coal Co. MORG 75-265 

Administrative Law Judge Decisions 

2-01-82 Cleveland Cliffs Iron Co. 

2-02-82 Sierra Blanca Milling &Processing Co. 

2-02-82 Massey Sand & Rock Co. 

2-02-82 Colorado Westmoreland, Inc. 

2-03-82 Ernie Brock 

2-03-82 SOL ex rel John Griffin v. Peabody Coal Co. 

2-03-82 Youngstown Mines Corp. 

2-03-82 Olga Coal Co. 

2-04-82 Metro Asphalt Co. 

2-04-82 United States Steel Corp. 

2-04-82 CF&I Steel Corp. 

2-04-82 Donald L Lund v. Anamax Mining Co. 

2~05-82 Mullin Creek Coal Co., Sol (MSHA) et al v. 

2-08-82 Consolidation Coal Co. 

2-09-82 Consolidation Coal Co. 

2-10-82 CF&I Steel Co~p. 

2-11-82 Atlantic Cement Co. 

2-12-82 Texas Industries, Inc. 

2-12-82 Valley Limestone Co. 

2-17-82 Keystone Coal Mining Corp. 

2-17-82 Union Carbide Corp. 

2-22-82 The Pittsburgh & Midway Coal Co. 

2-22-82 FMC Corp. 

2-23-82 Kentucky Carbon Corp. 

2-23-82 Sherman Lime & Rock Co. 

2-23-82 Franklin D. Johnson v. Eastern Associated 

Coal Corp. 

2-26-82 McDowell Quarry Co. 

2-26-82 Youghiogheny and Ohio Coal Co. 

LAKE 80-295-RM 

CENT 80-337-M 

WEST 80-94-M 

WEST 81-240-R 

KENT 81-192 

LAKE 81-159-D 

WEVA 81-379 

WEVA 81-380 

CENT 81-200-M 

PENN 81-146 

WEST 80-384-R 

WEST 81-193-DM 

KENT 81-17-D 

WEVA 81-222-R 

WEVA 82-11-R 

WEST 80-387 

YORK 80-101-M 

CENT 79-60-M 

LAKE 81-87-M 

PENN 81-46 

WEST 81-115-DM 

WEST 79-405 

WEST 81-80-M 

KENT 81-140 

LAKE 79-7-M 

WEVA 80-647-D 

CENT 80-247-M 

LAKE 80-387 

Pg. 123 

Pg. 126 

Pg. 146 

Pg. 155 

Pg. 159 

Pg. 163 

Pg. 168 

Pg. 171 

Pg. 177 

Pg. 188 

Pg. 194 

Pg. 201 

Pg. 204 

Pg. 208 

Pg. 218 

Pg. 228 

Pg. 234 

Pg. 244 

Pg. 249 

Pg. 292 

Pg. 336 

Pg. 339 

Pg. 344 

Pg. 347 

Pg. 352 

Pg. 357 

Pg. 361 

• 365 

Pg. 372 

Pg. 377 

Pg. 381 

Pg. 384 

Pg. 398 

Pg. 402 

Pg. 407 
Commission Decisions 
.FEBRUARY 

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

Secretary of Labor, MSHA v. A. H. Smith Stone, Docket No. VA 81-51-M. (Judge 

Koutras, December 30, 1981) 

Secretary of Labor, MSHA v. Roy Glenn, Employed by Climax Molybdenum Co., 

Docket No. WEST 80-158-M. (Judge Morris, January 5, 1982) 

Consolidation Coal Company v. Secretary of Labor, MSHA, Docket No. PENN 81-106-R. 

(Judge Melick, January 18, 1982) 

No cases were filed in which Review was Denied. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

EASTOVER MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 4, 1982 

Docket No. VA 80-84· 

DECISION 

This case arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (Supp. III 1979). The withdrawal order 

issued in this case, Order 0682886, charges a violation of 30 C.F.R. 

§ 75.507. This standard mirrors section 305(d) of the Mine Act which 

reads: 

Except where permissible power connection units 

are used, all power-connection points outby 

the last open crosscut shall be in intake air. 

30 U.S.C. § 865(d). At the hearing before the Administrative Law Judge, 

the parties stipulated: 

(6) The Pump control box, which is the subject 

of Order No. 0682886, was located in the last· 

open crosscut of the Right Section, which is 

a return airway. 

(7) The subject pump control box did not 

have permissible power connection points at 

the time the subject order was issued. 

The Administrative Law Judge found a violation and ordered payment 

of penalty. Although the judge found that the pump control box had not 

been energized, he reasoned that "whether or not the pump control box 

was ever energized is irrelevant to a determination of whether the 

regulation was violated." 2 FMSHRC at 3676. 

We agree with the judgeis conclusion that a violation was established. We do not, however, agree with his'broad construction of the 

regulation in this case. The judge's. construction of section 75.507 

would lead to the result that a violation of section 75.507 always 

occurs whenever nonpermissible power-connection points are located in 

return air regardless of the circumstances. 

The purpose of this regulation is to prevent methane gas explosions. 

In the presence of methane gas, a source of ignition, such as arcing 

from power connections, can cause an explosion. The arcing of power 

123 

82-2-1 
connection points, however, is only possible if equipment is energized. 

Thus, the hazard the regulation is designed to prevent is present only 

when equipment is energized or can be energized. However, merely 

finding a power-connection point in return air does not necessarily 

absolve the operator simply because it is non-energized. In such cases, 

a violation may occur if the equipment has been, is about to be, could 

be, or habitually was, operated in return air. Cf. Solar Fuel Co., 3 

FMSHRC 1384, 1385-86 (1981). 

We now apply the preceding principles to the facts of this case, 

based on the record as developed below. There is no question that the 

pump control box was not energized when the inspector issued the order. 

The foreman who placed the equipment in the return air during the shift 

prior to the one during which the inspection occurred testified that 

there was not enough cable to connect the pump to the power center. He 

also testified that he was familiar with the regulation and would not 

have left the control box in the return air if it were energized. 

In this case it is claimed that the unit was not in fact located in 

the return air but was simply placed there temporarily until it could be 

moved to intake air. In other words, it is contended that the location 

was merely an interrupted transit to another position where it would be 

located as required by the regulation. 

Nevertheless, the record does not contain a satisfactory explanation of why the control box was left in the return air. Nor has 

Eastover completely dispelled our concern that the only reason the pump 

control box was not energized in return air was because the connecting 

cable was too short--a "problem" which unfortunately suggests an original 

intent to energize in return air and a possible intent to "remedy" the 

situation by means other than moving the control box into intake air. 

We will not, however, indulge in speculative hypotheses. The record 

before us does not ~llow us to say with assurance that Eastover clearly 

showed that the equipment could not or would not have been energized in 

return air" Our concern is underscored by the undisputed facts that the 

mine had a history of methane liberation (the major danger in the event 

of arcing) and ol to ,2 volume percent of methane was found at the 

working place when the order was issued. 

For the 

the standard 

foregoing reasons, we affirm the judge's conclusion 

was violated, on the b~~~ z;·~ 

Rosemary M. Collyer, ~airman 

A. E. Lawson, Commissioner 

124 

that 
Distribution 

Karl S. Forester, Esq. 

Forester, Forester, Buttermore & Turner, P.S.C. 

P.O. Box 935 

Harlan, Kentucky 40831 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

125 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of MICHAEL J. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 5, 1982 

DUNMIRE and JAMES ESTLE 

Docket Nos. WEST 80-313-D 

WEST 80-367-D 

v. 

NORTHERN COAL COMPANY 

DECISION 

This discrimination case requires us to define further the scope of 

the right to refuse work under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et~· (Supp. III 1979). The case also raises 

questions concerning appropriate remedies for miners who have suffered 

discrimination. The administrative law judge concluded that Northern 

Coal Company discriminatorily discharged two miners, in violation of 

section lOS(c)(l) of the Mine Act, for engaging in a protected refusal 

to work. The judge assessed civil· penalties and awarded backpay and 

other relief. 1/ For the reasons that follow, we affirm the judge's 

decision. ]:_/ -

I. 

Many of the judge's essential factual findings are undisputed. 

The swing shift crew at Northern's Rienau No. 2 underground coal 

mine near Meeker, Colorado, consisted of six miners, including shift 

foreman Michael Morgan and the alleged discriminatees, Michael Dunmire 

and James Estle.· Estle operated the contiQuous miner, which mines the 

coal. Dunmire worked in support of Estle as a "miner's helper" responsible for setting support timbers and shoveling the ribs. 

1/ The judge's decision is reported at 3 FMSHRC 1331 (1981). 

2/ Former Commissioner Nease also voted to affirm, but resigned from 

the Commission before the decision was ready for signature. Chairman 

Collyer has taken no part in the consideration or decision of this case 

because of her prior association with Sherman and Howard, counsel for 

Northern Coal Company, at the time this case was tried. 

126 82-2-2. 
During the period from approximately December 1979 to March 1980, 

Northern was mining in the northeast main entries of the Rienau mine, 

an area referred to as "the slopes.tt ]_/ Although, as discussed in 

section II below, the witnesses varied somewhat in their specific 

descriptions of roof (or "top") conditions in the slopes during the 

December-March period, the record amply supports the judge's finding (3 

FMSHRC at 1333, 1336) that, in general, the roof was bad. Pieces of 

coal and rock of various sizes frequently fell from the roof during this 

period. The ribs were also sloughing. 

On the evening of Wednesday, February 27, 1980, the day before the 

key events in this case, the swing shift crew was working in the No. 1 

of the slopes. Material was falling from the roof and ribs, dust 

generated by operation of the continuous miner had reduced visibility to 

almost nothing, and ventilation was bad. We affirm the judge 1 s finding 

that Estle became concerned about the bad air and the possibility of 

injury from a roof fall, and suggested to Foreman Morgan that they stop 

mining until the roof could be crossbarred and additional air found. 3 

FMSHRC at 1333; Tr, 85-7, As discussed in the note, the 

record also shows that Morgan did not respond to Estle and that Dunmire 

also complained about the roof and air but was told by Morgan to keep 

working. !!_/ Mining continued and no member of the crew refused to work, 

The area was called the slopes because the coal seam there sloped 

side to side and also pitched downhill as entries were advanced, 

!ii We deem it necessary to clarify the record concerning the events of 

February 27 because it appears that some confusion has arisen. In 

finding that Estle complained to Morgan on February 27, the judge cited, 

in part, to Tr. 73. That portion of the transcript, however, is part of 

Estle's testimony about a series of different safety complaints that 

occurred earlier. Those complaints culminated in an incident in which 

both Estle and Dunmire successively complained to Morgan about working 

under crumbling roof, and Morgan agreed to stop the mining only after 

some roof material fell on him as well. Tr. 73-5. Morgan's testimony 

corroborates Estle's account. Tr.·273-4. In addition, the evidence 

establishes that on Monday, February 25, the start of the work week, 

Morgan allowed Dunmire to stop shoveling ribs because of bad rib and 

roof conditions. Tr. 160, 242, 275. Concerning the events of February 

27, Estle testified that Morgan did not respond to his complaint (Tr. 

86-7), and Dunmire testified that he too complained about the roof and 

air but was told by Morgan to keep working. Tr. 158-9, 172. On crossexamination, Morgan conceded that he did not remember if Estle and 

Dunmire had complained on February 27. Tr. 275. 

In li~ht of the foregoing, we believe that at some time in advance 

of February 27, Morgan agreed to stop mining, and on February 25, allowed 

Dunmire to stop shoveling ribs, on both occasions due to dangerous 

conditions. Because Estle and Dunmire were treated by the judge as 

credible witnesses and because their believable testimony is mutually 

corroborative and not contradicted by Morgan, we further conclude that 

Dunmire (as well as Estle) complained to Morgan on February 27 and that 

Morgan refused to act on the miners' complaints. Finally, Northern's 

assertion in its brief and at oral argument (Br. 12, 16, 19; Transcript 

of Oral Argument ("Tr. Arg. 11 ) 5, 8) that Morgan allowed Dunmire to stop 

shoveling the ribs on February 27 is not borne out by the record cited 

(Footnote continued) 

12? 
Over the previous several months, Estle and Dunmire had complained on a 

number of occasions to Morgan and other Northern supervisors about bad 

roof and the dangers of working under unsupported roof. ;!_/ 

Shortly before the start of the Thursday, February 28 swing shift, 

Estle and Dunmire were separately informed by Charles Daniels, the 

general mine foreman, that they were being transferred from the Morgan 

crew--Estle possibly to electrical work and Dunmire to the non-production graveyard shift. Daniels told Estle that the decision had been 

made "higher up" and for the reasons, among other things, that management believed the swing shift crew was too "close-knit" and was not 

keeping up with its safety duties for roof and ventilation control" 2 

FMSHRC at 1333; Tr. 90-3, 218-20" At the hearing~ Daniels testified 

that Morgan had not been meeting his supervisory responsibilities in 

these safety areas" 3 FMSHRC at 1333; Tr. 218-20 9 2380 Both Estle and 

Dunmire were upset and angry over the transfer (Tro 92, 170), and 

testified that they thought the reasons for the actions were their own 

safety complaints. Tro 92-3 9 160-lo 

After mee~ing with Daniels, Estle and Dunmire went inLo the slopes 

area of the mine to begin working on the February 28 swing shift. After 

completing some breakthrough work in the.No. 1 entry (where the swing 

shift crew had been working the night before), the Feburary 28 day shift 

crew had moved into the adjacent No. 2 entry and driven it in another 60 

feet or so before their shift ended" The Noo l and 2 entries were 

parallel~ about 60 feet apart, and connected by crosscuts. 3 FMSHRC at: 

1338; Tr. 187, 262-4, 309-10; Exh. P-3 (left side of map, area labelled 11Northeast Mains" (mining entries numbered from left to right)). 

In the mine, immediately prior to beginning his shift, Estle 

talked with Rod Shaw, the continuous miner operator from the previous 

shift. Estle asked Shaw about the roof, and Shaw said it was "just as 

bad" as last night arid was "blowing out"" 6/ Shaw indicated--and Estle 

understood, that he was referring to the roof in the No. 2 entry where 

the day shift crew had just been working. 3 FMSHRC at 1333; Tr. 94-5. 

footnote 4/ continued 

above (Tr-:- 158-9, 160, 172, 242, 275), which includes testimony from the 

two Northern supervisors involved. Dunmire emphatically testified that 

Morgan ignored his complaint on February 27. Tr. 158-9, 172. Dunmire's 

comment at Tr. 160 (relied on by Northern) that he was permitted to stop 

shoveling ribs "the night before" his discharge on February 28 appears 

to have been a loose reference to Monday, February 25; in his next 

answer he also referred to the date in question as "the first night 11 --

an apparent reference to the start of the work week. In any event, the 

testimony bf Morgan and Daniels clearly dates this incident February 25. 

Tr. 242, 275. . 

:J../ As the judge correctly found, Dunmire had complained previously on 

a number of occasions about safety problems. 3 FMSHRC at 1333, 1335; 

Tr. 69-70, 148-9, 151-4, 275-6. Northern states that Dunmire had raised 

only one other complaint. Br. 16. In the portion of transcript Northern 

relies on (Tr. 158-9), we read Dunmire's answer as a narrow statement 

that he had only once previously complained while underground to a 

Northern supervisor other than Morgan. There is no question that Estle 

had complained previously on a number of occasions. 

&_I "Blowing out" refers to chunks of coal or rock flying out under 

pressure from roof or rib. Tr. 82-3. 

128 
Estle then went over to the conveyor belt feeder (called "the Stamler"), 

where the swing shift crew, including Morgan, were gathered. The 

Stamler was located some distance from the face where the mining was to 

take place. 

Estle told the crew that he had talked with Shaw and that roof 

conditions were bad--as bad as they had been the night before. There 

was no response, and Morgan directed the crew to start work. Dunmire 

then said that he would not work as the miner's helper, but would be 

willing to shovel the conveyor's tail piece. Morgan replied that he 

lacked experienced employees to ,do the helper's work, and that Dunmire 

would have to be the helper. Morgan added that if Dunmire·did not want 

to do the helper's work, Dunmire knew what he could do. Estle jokingly 

interjected the explanation that Dunmire could get his bucket and go 

home. Morgan indicated that Estle was correct, and Dunmire left the 

work site. Estle told the crew that they should all leave with Dunmire. 

Morgan responded that if Estle went out, he would "be cutting [his] own 

throat." 3 FMSHRC at 1333, 1337 n. 3; Tr. 261. 7/ No one left, Estle 0 

who had a chronic lower back problem, told Morgan he was sick and then 

left the work site. ~/ 

The evidence shows that when Estle and Dunmire arrived on the 

surface several minutes later, they stopped off in the mine office where 

Dunmire separately asked Daniels, the general mine foreman, and Robert 

Pobirk, the mine superintendent, if either wanted to talk with him" 

Each responded that he did not. Tr. 100, 164, 221-2, 285-6. Daniels 

testified that although he "assumed [Dunmire had] quit," he did "not 

want to say anything" to Dunmire because he felt "it was no use talking 

to him or having an argument with him. 11 Tr. 222. !ii Estle and Dunmire 

then went to the showers. 

II Morgan first testified that he and Roy Petree, another member of 

the crew, made the "throat-cutting!' remark, and, when asked to clarify 

his answer, then attributed the comment to Petree alone. Tr. 261. The 

judge credited Morgan's initial testimonial version that he himself had 

made such a remark. · 3 FMSHRC at 1337 n. 3. At oral argument, Northern 

challenged this finding. The finding is a credibility resolution that 

seems to us based on the judge's observation of Morgan's demeanor while 

testifying. We will not ordinarily overturn such resolutions by the 

trial judge who observes the witnesses, and we affirm this one. 

~/ Estle testified that "regardless" of the roof conditions, he probably would have left that day anyway due to his back problem. 3 FMSHRC 

at 1334; Trr. 99. Estle saw a doctor the following day. 

9/ Pobirk may not have realized exactly what was going on when Dunmire 

first spoke with him. Tr. 285. Pobirk testified, however, that after 

Dunmire left, Daniels "made [him] aware that [Estle and Dunmire] had 

walked out •••• n Tr. 285-6. 

129 
After cleaning up, Estle and Dunmire returned to the office. 

Pobirk told them that since they had walked off the job, they had quit. 

3 FMSHRC at 1334; Tr. 100, 164-5, 222-4, 286, 291. Dunmire replied that 

he was not quitting or refusing to work, but was only refusing to be the 

miner's helper. Tr. 164. Dunmire also told Pobirk that he did not 

think the roof was safe and wanted the miner shut down while he set 

timbers, established ventilation, and shoveled the ribs. Tr. 164-5, 

222-4, 291. Dunmire and Pobirk argued, and finally Pobirk stated that 

Dunmire was terminated. Tr. 165. 10/ Estle told Pobirk that he was 

sick and was going to the doctor. Tr. 102. Estle and Dunmire left the 

mine. On the following Monday, March 3, when Estle attempted to 

his medical excuse to Troy Wills, Northern's area superintendant, Wills 

told him that Northern considered Estle's walk out to have been a quit. 

About three weeks later, Estle returned to the mine and told Wills 

that he would drop the discrimination complaint that he had filed with 

MSHA if Northern would rehire him. Wills responded that Estle could not 

be rehired because if anyone else wanted to walk out, they could do it 

and get away with it. 

II. 

We analyze first the central issue of whether Estle and Dunmire 

were unlawfully discharged for engaging in a protected refusal to work. 

We recognized in general terms the right to refuse work under section 

105(c)(l) of the Mine Act in Fasula v, Consolidation Coal Co., 2 FMSHRC 

2786 (1980), rev'd ,££other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981), and further developed the scope 

of the right in Robinette v. United Castle Coal Co., 3 FMSHRC 803 

(1981). We preface our analysis by briefly summarizing this area of 

law, particularly in light of the Third Circuit's Consolidation Coal 

decision. 11/ 

Under Pasula and Robinette, a miner may refuse to work if he has a 

good faith, reasonable belief that a hazardous condition exists. A 

miner's refusal may extend to "affirmative self-help", such as shutt 

off or adjusting equipment, so long as the self help is reasonable as 

well. Fasula, 2 FMSHRC at 2789-94; Robinette, 3 FMSHRC at 807-17. As 

we have previously indicated (Phelps Dodge Corp., 3 FMSHRC 2508, 2508 n. 

1 (1981)), the court of appeals reversed Fasula solely on evidentiary 

grounds, holding that the miner in question had been discharged for 

engaging in unprotected activity. Consolidation Coal, 663 F.2d at 1216-

21. We do not think that the Third Circuit's Consolidation Coal decision 

is inconsistent with our general holdings in Fasula and Robinette. On 

the contrary, we read the court's opinion as a cautious approval of the 

main outlines of the right to refuse work as developed in our decisions. 

10/ Daniels and Pobirk denied that Fobirk told Dunmire that he was 

fired, but the judge credited Dunmire's contrary account of the conversation (which Estle substantially corroborated (Tr. 100)), and we 

affirm his resolution of this conflicting testimony. 

In the decision under review, the judge did not discuss or apply 

our Robinette decision. However, his analysis is consistent with 

Robinette, and the parties have presented their arguments to us in light 

of that decision. Accordingly, there is no need to remand for express 

application of a Robinette analysis. 

130 
Certainly, if the court had thought that there was no right to 

refuse work under the Mine Act, it would not have analyzed (as it did) 

whether the miner was fired for unprotected activity for there could 

have been no claim that he was fired for protected activity. The court 

prefaced its evidentiary analysis by stating that it "found it unnecessary to define the perimeters of [the] right [to refuse work] under the 

Mine Act.'~ 663 F.2d at 1216 (emphasis added). The court's discussion 

of the right, in the detailed footnote Id. at 1216-17) that accompanies 

the passage just quoted, makes clear that it agreed there was such a 

right in general, but did not deem it necessary to define the specifics 

of the right: 

Thus, although we need not address the extent of such a right, 

the statutory scheme, in conjunction with the legislative history 

of the 1977 Mine Act, supports a right to refuse work in the event 

that the miner possesses a reasonable, good faith belief that 

specific working conditions or practices threaten his safety or 

health • 

• at 1217 n. 6. 

We note that the courtvs discussion of the right accords with 

Robinette's holding that a work refusal must be premised on a good 

faith, reasonable belief in a hazard--the chief areas of contention in 

the present case. Indeed, in approving our refusal in to defer 

to an arbitral decision regarding the miner's discharge FMSHRC at 

2794-96), the court described reasonable~ good faith belief in much the 

same manner as our Robinette decision (3 FMSHRC at 809-12): 

In this case, the considerations underlying the standards of 

gravity of injury in the Wage Agreement [between the operator and 

miners' representative] and in the statute are different. The Wage 

Agreement requires the arbitrator to determine whether the hazard 

was abnormal and whether there was inuninent danger likely to cause 

death or ser~ous physical harm. The underlying concern of the Mine 

Act, however, is not only the question of how dangerous the condition is, but also the general policy of anti-retaliation (against 

the employee by the employ~r). Because this is a major concern of 

the Mine Act, it requires proof merely that the miner reasonably 

believed that he confronted a threat to his safety or health. 

Those who honestly believe that they are encountering a danger to 

their health are thereby assured protection from retaliation by the 

employer even if the evidence ultimately shows that the conditions 

were not as serious or as hazardous as believed. Questions of 

innninence and degree of injury bear more directly on the sincerity 

and reasonableness of the miner 1 s belief. 

663 F.2d at 1219. 12/ We now apply the general principles controlling 

the right to refus-;-work to the issues in this case. 

12/ In Pasula, we concluded that the miner was fired primarily because 

of his refusal to work. Although we found that his discharge was also 

partly motivated by his conduct in shutting down the equipment about 

which he had complained (conduct that we emphasized was unprotected), 

we found that the evidence failed to show that the operator would have 

(Footnote continued) 

13l 
The judge concluded that Estle and Dunmire engaged in a protected 

refusal to work on February 28 and that their terminations over the 

incident therefore violated section 105(c)(l) of the Mine Act. On 

review, Northern raises three major objections to the judge's conclusion: (1) that a miner must ordinarily state a safety or health 

complaint in order to bring a work refusal within the protection of the 

Mine Act, and that Estle and Dunmire failed to articulate such complaints; (2) that the work refusal of Estle and Dunmire was per se 

unreasonable because they failed to examine the work area that was the 

subject of their refusal; and (3) that in any event the mining conditions in question were not unsafe. Although Northern conceded at oral 

argument that Estle and Dunmire "probably" had a "subjective good faith 

belief of (a] danger" (Tr. Arg. 14), a number of the arguments in 

Northern 1 s brief touch on good faith issues, and we therefore briefly 

address that subject as well. 

We note at the outset that this is not a motivation" discrimination case where the evidence shows that the operator's adverse 

action was motivated both by the miner 1 s protected activity and also by 

his separate unprotected conduct. Northern states that it terminated 

Estle and Dunmire solely for having "walked off their jobs," an action 

Northern "took as a quit on their part." Br. 3. Therefore, the only 

fn. cont d. 

terminated him in any event for this latter conduct alone. Under the 

discrimination analysis we developed in Pasula, these findings entitled 

the miner to relief. 2 FMSHRC at 2796-801. The court disagreed with 

our evidentiary determinations, and found that the "real" reason the 

miner was terminated was for shutting down the equipment and "refus[ing] 

to permit anyone else to operate it." 663 F.2d at 1219-21. The court 

concluded that this conduct was beyond the pale of the right to refuse 

work, and that the miner was therefore lawfully discharged for the 

conduct: 

There is no right in the- [Mine] Act to shut down an entire 

shift's work. An individual is protected by the Act from 

retaliation for asserting and acting on his real fear that conditions are unsafe or hazardous to his health; but no one has the 

right to stop others from proceeding to work if they so wish. 

Id. at 1219. 

We do not regard the court's disposition of the discrimination 

issue as a holding that a miner may never engage in affirmative self 

help such,as shutting off or adjusting equipment. The court obviously 

believed that the miner's actions were unreasonable and excessive. 

Robinette stressed that any affirmative seif help must be reasonable. 3 

FJ:-1SHRC at 812. Given the court's own emphasis on reasonableness, we 

doubt that it would have condemned a miner's reasonable action in, for 

example, temporarily shutting down a beltline to prevent a fire. Rather, 

we think that the court's opinion is entirely consistent with a case-bycase analysis of work refusals, including those that involve affirmative 

self-help, focused on the reasonableness of the miner's beliefs and 

actions. 

132 
conduct in issue is the walk off. If the walk off was a protected 

refusal to work, the termination over it was unlawful; if it was not 

protected, the termination was legal. We turn first to Northern's 

threshold argument that miners must state a complaint in order to 

trigger a protected refusal to work. 

Statement of a health or safety complaint 

We conclude that substantial evidence supports the judge's finding 

that safety complaints were in fact made, but we find it necessary to 

elucidate his treatment of the issue. Because the evidence surrounding 

these complaints is controverted and because the subject is important, 

we also address Northern's general argument that such complaints must be 

made. 13/ The judge concluded that a statement of a complaint is a 

prerequisite to a valid work refusal (3 FMSHRC at 1335) and, in his 

brief to us, the Secretary concurs. Br. 16. 

A complaint requirement accords with Rob e 1 s emphasis that a 

work refusal must be premised on a good faith, reasonable belief in a 

hazard, and is also consistent with sound safety practices and common 

sense. As we noted in both and Robinette, Congress intended to 

extend the right to refuse work under the Mine Act to "workers acting in 

good faith .•. as responsible human beings." 14/ In our view, it would 

not be the conduct of a "responsible human being" to walk off the job 

and, for no good reason, fail to inform anyone of a possible hazard that 

could imperil safety or health. We agree with Northern that stating 

such a complaint may permit the operator to correct the condition in a 

timely fashion and may protect others in the mine from harm. On the 

other hand, we made clear in Robinette that we will not adopt complicated work refusal doctrines that may be difficult to apply in practice 

or that could chill the right to refuse work. 3 FMSHRC at 810 n. 12. 

Balancing all the foregoing considerations, we therefore adopt the 

following requirement. 

Where reasonably possible, a miner refusing work should ordinarily 

communicate, or at least attempt to communicate, to some representative 

of the operator his belief in the safety or health hazard at issue. 

"Reasonable possibility" may be lacking where, for example, a representative of the operator is not present, or exigent circumstances require 

swift reaction. We also have used the word, "ordinarily" in our formulation to indicate that even where such communication is reasonably 

possible, unusual circumstances--such as futility--may excuse a failure 

to communicate. If possible, the communication should ordinarily be 

made before the work refusal, but, depending on circumstances, may also 

be made reasonably soon after the refusal. 

In Pasula, we solicited the "considered views" of the Secretary, 

miners, miners' representatives, and operators on "how [the right to 

refuse work] should be shaped." 2 FMSHRC at 2793. We thank Northern's 

counsel for their helpful discussion of the complaint issue in their 

brief and at oral argument. 

1!!._/ Pasula, 2 FMSHRC at 2792, and Robinette, 3 FMSHRC at 809 & n. 11, 

quoting Senate floor debate on S. 717, June 21, 1977, reprinted in 

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

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

Act of 1977, at 1089 (1978)("Leg. Hist."). 

133 
Not every miner involved in a work refusal need make (or attempt to 

make) such a complaint. A communication from one may be deemed to be on 

behalf of all concerned, even if not announced in such terms. As the 

judge correctly observed (3 FMSHRC at 1337), the Mine Act secures the 

right to concerted protected activity: section 105(c)(l) provides that a 

miner is protected in the "exercise ••• on behalf of himself or others 

of any statutory right afforded by this Act" (emphasis added). 

We stress that our purpose is promoting safety, and-we will evaluate 

communication issues in a common sense, not legalistic, manner. Simple, 

brief communication will suffice, and the "communication" can involve 

speech, action, gesture, or tying in with others' comments. We are 

confident that the vast majority of miners are responsible and will 

communicate such concerns in any event. In short, we believe that the 

practical effect of this .rule will be to assist in weeding out work 

refusals infected by bad faith--conduct that enjoys no protection under 

the Mine Act. We now apply these standards to the facts of this 

case. 15/ 

We conclude that the evidence summarized in the first part of this 

decision shows that Estle and Dunmire stated safety complaints both at 

the Stamler, before their work refusals, .and at the mine office after 

they had left the work area. At the Stamler, Estle informed the entire 

swing shift crew, including Morgan, that he had just talked with a 

continuous miner operator from the day shift and had been informed that 

roof conditions were bad--as bad as they had been during the previous 

night's swing shift, In our opinion, the plain meaning of these words 

would convey to any reasonable miner--if not any reasonable person~ a 

complaint concerning the roof under which the crew was about to work. 

15/ The judge, Northern, and the Secretary all cited our decision in 

Deskins Branch Coal Co., 2 FMSHRC 2803 (1980), as support for the proposition that a miner must state a safety or health complaint in 

connection with a work refusal. For purposes of clarity, we note that 

Deskins does not mandate the result reached in the present case. 

Deskins arose under the 1969 Coal Act, and involved only the right under 

section llO(b) of that Act to "notif[y] the Secretary or his authorized 

representative of any alleged violation or danger." In Deskins we 

concluded that stating a safety complaint to an appropriate individual 

(whether a representative of the operator or Secretary), was the essence 

of the "right to notify," and that failure to make such a communication 

would remove the miner from the protection of section llO(b) of the 1969 

Coal Act. 2 FMSHRC at 2803-4. What was required for a valid notification of the Secretary under the 1969 Coal Act does not necessarily 

determine what is required for a valid work refusal under the Mine Act. 

While there are similarities between section llO(b) of the 1969 Coal Act 

and section 105(c)(l) of the Mine Act, the latter section expanded the 

list of protected activities and was intended by Congress to be interpreted "expansively." S. Rep. No. 95-181, 95th Cong., 1st Sess. 36 

(1977), reprinted in Leg. Hist. 624. Accordingly, 1969 Coal Act 

precedent regarding protected activity, although often helpful, must be 

applied carefully. 

134 
In this regard, Estle's fairly extensive history of prior complaints 

about bad roof conditions, most particularly his similar complaint the 

night before, must have enabled Morgan to grasp his meaning. ~/ 

While we agree with the judge that under section 105(c)(l), Estle's 

statement (3 FMSHRC at 1337) may be deemed a concerted complaint on 

behalf of the rest of the crew, including Dunmire, we also conclude that 

Dunmire himself complained at the Stamler. Only a minute or so after 

Estle mentioned the bad roof, Dunmire told Morgan he would not work as 

the miner's helper, although he was willing to perform other tasks. We 

are satisfied that this was a readily understandable followup to Estle's 

statement. Dunmire meant that since the roof was bad, he preferred not 

to work under it. We agree with the judge (3 FMSHRC at 1335) that 

Morgan must have understood Dunmire, especi~:tlly since Dunmire had voiced 

the same concern to him the night before, as well as on other occasions. 

We think that the judge's statement that Dunmire made no complaint to 

Morgan (Id.) should not be read literally or in isolation. It seems to 

us that the judge merely meant that Dunmire'1 s words, while if judged 

standing alone might not appear to be a complaint, constitute an understandable complaint when examined in cont·ext--including the normal flow 

of conversation. 

There is no dispute that not long after leaving the Stamler, 

Dunmire (with whom Estle was standing) made it quite clear to Pobirk 

that they were complaining over roof conditions. Even were we to share 

Northern 1 s view of the evidence regarding the events at the Stamler 0 

this conversation would qualify under the standards announced in this 

decision as a complaint by Dunmire (on behalf of himself and Estle) made 

reasonably close in time to a work refusal. 

In sum, we conclude that, where reasonably possible, miners should 

ordinarily communicate their safety or health complaints in connection 

with a work refusal, and that the evidence shows that Estle and Dunmire 

did so. 

Good faith 

Northern's concession at oral argument that Estle and Dunmire 

"probably" had a good faith belief in a danger undercuts the suggestions 

in Northern's brief that they lacked good faith belief. When the 

judge's findings are viewed as a whole, it is clear that he found Estle 

and Dunmire credible witnesses who had acted out of a good faith fear of 

dangerous conditions. Although we agree with Northern that the two 

miners were also unhappy about their imminent transfer, we do not regard 

that as sufficient evidence that they acted in bad faith. Their respective 

histories of concern over roof conditions persuade us of their sincerity 

on February 28. 

];ii We reject Northern's argument that prior complaints cannot be 

examined in order to evaluate a miner's communications. Such history 

may shed light both on what the miner meant and on what a reasonable 

listener would have understood him to mean. 

135 
We also find misplaced Northern's specific attacks on Estle's 

motivations for leaving the mine. We agree with the judge (3 FMSHRC at 

1337 & n. 2) that Estle testified (Tr. 99, 107, 123) that he had left 

the mine partly because of safety concerns and partly because of his 

back problem, although he mentioned only the back problem when he told 

Morgan he was leaving. As discussed above (pp. 2-3 & n. 4 above), 

Morgan had ignored Estle's safety complaint just the night before, and 

we regard as credible Estle's explanation (Tr. 126) that he did not wish 

to pursue a safety complaint any further with Morgan. Estle's reluctance 

is perhaps even more understandable in light of Morgan's immediately 

preceding admonition that Estle would be "cutting his throat" if he left 

in support of Dunmire. Of course, as the judge and we have found, and 

as Estle himself also explained (Tr. ·123), Estle had articulated a 

general safety complaint only minutes before leaving. We deem that 

complaint sufficient indication of his good faith reason for leaving. 

Reasonable belief 

There is no dispute that before leaving, Estle and Dunmire did not 

personally examine the work area that was the subject of their concern. 

The judge found that "[i]t [was] not necessary to make such an examination" where the miners otherwise possessed a reasonable basis for 

belief in a danger, 3 FMSHRC at 1336. Northern urges us to adopt a per 

~ rule that failure to examine ordinarily removes a work refusal from 

the Mine Act's protection. Br. 22-4. We do not regard a se 

approach as appropriate in this area, but agree that the matter of 

personal examination may be relevant to a miner's good faith, reasonable 

belief. We think that personal examination should be one of the many 

possible surrounding circumstances that should be considered on a caseby-case basis in evaluating the validity of work refusals. Certainly, 

we decline adopting any approach that would require miners to expose 

themselves directly to hazards, because avoidance of injury is the very 

reason the right to refuse work exists. For purposes of resolving this 

case, we re-emphasize our rule that a miner's belief must be reasonable~ 

and hold that miners may rely on such indications of conditions as 

seemingly trustworthy reports from others and earlier conditions in the 

mine. 

17/ Since we agree with the judge that Estle was partially motivated by 

safety concerns, we view Estle's additional reliance on his back problem 

as largely 'irrelevant. Northern introduced no evidence rebutting his 

medical excuse, and nothing about the right ,to refuse work precludes a 

miner from also relying on non-safety related reasons for his actions, 

particularly where, as here, the miner is seemingly threatened with 

termination if he acts on safety related grounds alone. Finally, 

although.Northern does correctly point out that at one point in crossexamination Estle testified he left because of his "anger" and "tailbone" (Tr. 126), the rest of his testimony makes quite clear, and we 

believe, that his chief reasons for acting were his safety concerns and 

his back problem. 

136 
Estle and Dunmire based their February 28 walk out on an apparently 

believable report from a miner just finishing work that roof conditions 

where the swing shift was about to work were bad--as bad as they had 

been on February 27. Both Estle and Dunmire had be~n concerned over the 

roof on February 27, and had complained to no effect. They had been 

observing, and complaining about, bad roof conditions in the slopes for 

the previous several months. We agree with the judge (3 FMSHRC at 1336) 

that the combination of a first-hand report from another miner and their 

own immediately preceding first-hand experience supplied an acceptable 

basis for a reasonable belief in hazardous conditions. Thus, we cannot 

agree that this is a case where a failure to examine reveals either bad 

faith or lack of reasonable belief. 18/ 

Moreover, we are satisfied, as was the judge, that the minersv 

belief in dangerous conditions was quite reasonable" There is a great 

deal of credible evidence that roof and rib conditions in the slopes had 

been bad for some time, with considerable falling, 11flaking~ 11 and 

"blowing out" of coal and rock, and were bad on February 27 and 28. We 

affirm and incorporate by reference the j~dge s thorough analysis of 

this evidence (3 FMSHRC at 1333, 1336, 1338), and conunent only on a few 

salient aspects of the evidence. 

While there were differences among the witness' description of 

mining conditions (and while we suspect the truth lies somewhere between 

the most extreme accounts), virtually all the witnesses agreed that 

there were roof fall and rib sloughing problems in the slopes" For 

example, as the judge pointed out, Northern 1 s own witness Daniels, the 

general mine foreman, described the roof in the No. 2 entry where the 

swing shift was to work on February 28 as only "fair" (Tr. 223). At 

another point, Daniels conceded that the slopes top was, at times, "bad" 

(Tr. 241), and finally stated that the Rienau mine only "got out of .•. 

bad [roof] condition around the middle of March" (Tr. 250), some weeks 

after Estle 1 s and Dunmire's work refusal. As we found above (pp. 2-3 & 

n. 4), Morgan, not long before the crucial events in this case, had.also 

excused Estle and Dunmire from work when roof and rib conditions were 

particularly dangerous. Most tellingly, Gene Moore, a miner on the day 

18/ In its brief, Northern too narrowly interprets our use of the word~ 

"perception" in our discussion.of reasonable belief in Robinette. Br. 

21, 23. In Robinette, we used ."perception" in its general sense as a 

synonym for belief, not in its more narrow sense as referring to a 

direct sensory impression. 3 FMSHRC at 812. We did not mean to suggest 

that a min,er must necessarily become aware of an apparent danger through 

his own sensory impressions; we meant only _that his belief of a danger 

must be reasonable, regardless of how he arrived at his belief. Of 

course, often the miner's own direct observations will supply the basis 

of his belief in a hazard. Our intent is to suggest that, just as is 

the case in daily life, beliefs can rest on other sources of information 

as well. 

137 
shift ·provi-Oed ·a ~detailed-; first-hand aC:cotl!lt of blowing roof and 

sloughing_.:r;i.bs on ·February 28 ;,:., the No. 2 entry where Estle and Dunmire 

were scheduled to work. 3 FMSHRC at 1338; Tr. 187-90. 19/ As we pointed 

out in Robinette (3 FMSHRC at 812), a miner's reasonabl;-belief can be 

established through the kind of corroborative evidence present here. 

Thus, we agree with the judge that Estle and Dunmire had a good 

faith reasonable belief in a roof hazard on February 28. While perhaps 

Northern demonstrates that other reasonable reactions were possible on 

February 28, we stress that, because reasonable minds can differ, our 

Robinette test requires only~ reasonable belief. 3 FMSHRC. at 811-12 & 

n. 15. We also think that their reasonable belief is reflected by the 

reasonableness of certain aspects of Dunmire's conduct on February 28, 

Dunmire offered to Morgan to perfonn alternative work, As noted above 

(p. 4), Dunmire attempted to talk with Daniels and Pobirk when he arrived 

at the surface but was initially rebuffed. Dunmire later informed 

Pobirk that he was not quitting, but only refus to work under bad 

roof, and made clear he would work if the roof problems were resolved, 

The evidence shows that Estle was acting in support of his co-worker, 

This is not the behavior of individuals acting on bad faith or reckless 

impulse. 

In short, we conclude that Estle and Dunmire engaged in a protected 

work refusaL Because they were fired for this work refusal, the terminations violated section 105(c)(l) of the Mine Act. We now turn to the 

remaining issues in the case. 

III. 

There are three remaining issues: (1) whether the judge erred by 

refusing to consolidate an immediate hearing on the merits with Dunmire's 

temporary reinstatement hearing and whether the limited scope of the 

temporary reinstatement hearing comported with due process requirements; 

(2) whether the judge erroneously included vacation pay and hearing 

expenses in the back pay award for Estle and Dunmire; and (3) whether 

the judge erroneously calculated back pay on the basis of an incorrect 

back pay period for Estle. Northern has not complained about the judge's 

imposition of civil penalties, and therefore no penalty issue is before 

us. 

19/ Northern correctly observes that on February 28, the swing shift 

crew worked in the No. 2 entry of the slopes, a different location from 

the No. 1 entry where they had worked the previous night. Northern 

argues that therefore Estle and Dunmire, absent examination, could not 

have had a basis for a reasonable belief in, bad conditions in the new 

work area. However, the two parallel entries were located in the same 

general area of the slopes where roof and rib problems had been the 

rule, not the exception. We would find more force to Northern's argument had the new entry been located in an entirely different area of the 

mine. In any event, we affirm the judge's crediting of Moore's testimony 

that in fact conditions were bad in the No. 2 entry. 

138 
In the proceedings below, Dunmire sought temporary reinstatement 

pursuant to section 105(c)(2) of the Mine Act and our former Commission 

Rule 44, 29 C.F.R. § 2700.44 (1981), which implemented that section. ];QI 

Section 105 the Mine Act provides in relevant part: 

Any miner who believes that he has been 

interfered with, or otherwise discriminated against by any person 

in violation of [section lOS(c)] may, within 60 days after such 

violation occurs, file a complaint with the Secretary such 

discrimination. Upon receipt of such complaint the Secretary shall 

forward a copy of the complaint to the respondent and shall cause 

such investigation to be made as he deems appropriate. Such 

investigation shall commence within 15 days of the Secretary's 

receipt of the complaint, and if the Secretary finds that such 

complaint was not frivolously brought, the Corrnnission, on an 

basis upon application of the Secretary, shall .order the 

immediate reinstatement of the miner pending final order on the 

complaint. If upon such investigation, the Secretary determines 

that the provisions of this subsection have been violated, he shall 

immediately file a complaint with the Commission, with service upon 

the violator and the miner ••• alleging such discrimination 

or interference and propose an order granting appropriate relief, 

The Commission shall afford an opportunity for a hearing (in 

accordance with section 554 of title 5, United States Code, but 

without regard to subsection (a)(3) of such section) and thereafter 

shall issue an order, based upon findings of fact, affirming, 

modifying, or vacating the Secretary's proposed order, or directing 

other appropriate relief. Such order shall become final 30 days 

after its issuance. The Commission shall have authority in such 

proceedings to require a person committing a violation of this 

subsection to take such affirmative action to abate the violation 

as the Commission deems appropriate, including, but not limited to, 

the rehiring or reinstatement of the miner to his former position 

with back pay and interest. 

Our former Rule 44 provided: 

(a) Contents of application procedure: hearing. An application 

for reinstatement shall state the Secretary's finding that the 

complaint of discrimination, discharge or interference was not 

frivolously brought and the basis for his finding. The application shall be immediately examined, and, unless it is determined 

from the face of the application that the Secretary's finding was 

arbitrarily or capriciously made, an order of temporary reinstatement shall be immediately issued. The order shall be effective 

upon issuance. If the person against whom relief is sought requests 

a hearing on the order, a Judge shall, within 5 days after the 

request is filed, hold a hearing to determine whether the Secretary's 

finding was arbitrarily or capriciously made. The Judge may then 

dissolve, modify or continue the order. 

(footnote cont'd) 

139 
On May 22, 1980, the Commission's chief judge, acting on the Secretary's 

application for Dunmire's interim reinstatement pursuant to section 

105(c)(2) and our Rule 44, issued an order temporarily reinstating 

Dunmire. On May 30, 1980, Northern requested a hearing on the reinstatement order. The parties agreed to have the hearing held on June 6, 

1980. The order directing the hearing indicated that the scope of the 

hearing would be controlled by the terms of Rule 44(a). On June 5, 

1980, Northern moved for consolidation of a hearing on the merits with 

the hearing on the temporary reinstatement order, or in the alternative, 

for expedition of the hearing on the merits. 

The hearing on the temporary reinstatement order was held, as 

scheduled, on June 6, before the same judge who decided this case on the 

merits, and Northern renewed its consolidation/expedition motion. Tr. 

8-9. The judge denied the request for immediate consolidation on the 

grounds that at that time the issues had not been framed and the 

Secretary's complaint on the merits had not been filed. Tr. 12. The 

judge agreed, however, to expedite proceedings, and set the hearing on 

the merits for July 24, 1981. Id. The judge also indicated that 

although the merits of Dunmire ~discrimination case were beyond the 

scope of the temporary reinstatement hearing, evidence concerning the 

factual bases relied upon by the Secretary in applying for Dunmire 1 s 

reinstatement would be relevant. 3 FMSHRC at 1341; Tr. 18-22. 

Objecting to the scope of the hearing, Northern waived its right to 

proceed with it and requested that the parties "simply proceed" with the 

expedited July 24 hearing on the merits. Tr. 22-3. The judge granted 

Northern's request. Tr. 23. Northern indicated that it wished to 

preserve its due process objections concerning the temporary reinstatement hearing procedure. Tr. 25. The hearing on the merits took place 

as scheduled, and subsequent to the hearing, Dunmire voluntarily left 

Northern's employ. Permanent reinstatement for Dunmire was therefore 

neither sought nor ordered. 3 FMSHRC at 1341. 

fn. '!:QI cont'd. 

(b) Dissolution of order. If, following an order of reinstatement, the Secretary determines that the provisions of section 

105(c)(l) have not been violated, the Judge shall be so notified 

and shall enter an order dissolving the order of reinstatement. If 

the Secretary fails to file a complaint within 90 days, the Judge 

may issue an order to show cause why the order of reinstatement 

should not be dissolved. An order dissolving the order of reinstatement shall not bar the filing of an action by the miner in his 

own behalf under section 105(c)(3) of the Act and§ 2700.40 of 

these rules. 

As we explain below, we have determined that our former Rule 44 was 

legally inadequate; and have replaced it with a new Interim Rule 44. 

140 
At about the time the parties filed their briefs with us, we 

decided that our Rule 44 provided for temporary reinstatement hearings 

that were too "narrow and restrictive" in scope, and therefore deprived 

operators of the due process to which they were entitled. Kentucky 

Carbon Corp., 3 FMSHRC 1707, 1711-12 (1981). We have since promulgated 

a new Interim Rule 44 designed to cure the deficiencies of our former 

procedure. 21/ 

While Northern has not abandoned its due process objections, we 

conclude that our disposition of the discrimination question and the 

combination of events summarized above have mooted these issues •. Pursuant to Kentucky Carbon, we vacate the order of temporary reinstatement 

on the grounds that the hearing provided Northern was conducted under a 

procedure we have deemed legally inadequate. However, as in Kentucky 

Carbon (3 FMSHRC at 1712), we do not. remand.for any further proceedings 

because there is no need or reason for continuing interim relief. In 

the first place, we have determined that Dunmire was discriminatorily 

discharged--a conclusion that means he was entitled to temporary 

reinstatement. Furthermore, he has since ~eft Northern 1 s employ, and 

thus his reinstatement is not before us. Our vacation of the temporary 

reinstatement order makes it unnecessary to resolve Northernvs due 

process arguments regarding consolidation and the proper scope of 

hearings, and we reserve consideration of such issues to a case presenting a live controversy under our revised procedure. 

21/ We have amended only subsection (a) of Rule 44. The new language 

provides: 

§ 2700.44 Temporary reinstatement proceedings. 

(a) Contents of application; procedure; hearing. 

An application for temporary reinstatement shall state the Secretary's finding that the miner's complaint of discrimination, 

discharge or interference was not frivolously brought and shall be 

accompanied by a copy of the miner's complaint, an affidavit 

setting forth the Secretary's ·reasons for his finding, and proof of 

service upon the operator. The application and accompanying 

documents shall be examined upon an expedited basis, and, if it 

appears that the Secretary's finding is supported by the application and accompanying documents, an order of temporary reinstatement shall be immediately issued. The order shall be 

effective upon receipt or actual notice. If the person against 

whom relief is sought requests a hearing on the order, a Judge 

shall within 5 days after the request is filed, hold a hearing to 

determine whether the miner's complaint of discrimination, discharge or interference was frivolously brought. The judge may then 

dissolve, modify or continue the order., 

46 Fed. Reg. 39,137-38 (July 31, 1981). 

22/ We note in passing that, despite our disposition of this issue, we 

seriously doubt whether Northern preserved its right to complain on 

discretionary review about the scope of the temporary reinstatement 

hearing. As discussed above, Northern waived its right to proceed with 

the hearing, thereby avoiding a concrete test of the hearing's adequacy. 

We also think that the judge's commendable expedition of proceedings 

supplied Northern with the essence of the relief it sought through 

consolidation. 

141 
Back pay 

Northern objects to the judge's inclusion of vacation pay and 

hearing expenses in his back pay award for Estle and Dunmire. 3 FMSHRC 

at 1342-43. Before analyzing these specific questions, we discuss 

briefly the general subject of the Mine Act's remedies for discrimination. 

Section 105(c)(2) of the Mine Act empowers the Commission to remedy 

discrimination by "such affirmat_ive action to abate the violation as the 

Commission deems appropriate, including, but not limited to, the rehiring 

or reinstatement of the miner to his former position with back pay and 

interest." As we recently held, this broad remedial charge was designed 

not only to deter illegal retaliation but also to restore the employee, 

as nearly as possible, to the situation he would have occupied but for 

the discrimination. Kentucky Carbon Corp.;·4 FMSHRC (No. KENT 80-

145-D, January 6, 1982), slip op. at 2. 

As we also pointed out in Kentucky Carbon, the Mine Actvs provisions are modeled largely on section lO(c) of the National Labor 

Relations Act, as amended, 29 U.S.C. § 160(c). Id., slip op. at 2 & n. 

4. In applying that section's provision-for bac~pay awards, the National 

Labor Relations Board and the courts have long treated back pay as a 

term of art encompassing not only wages, but also any accompanying 

fringe benefits, payments, or contributions constituting integral parts 

of an employer's overall wage-benefit package. See, for example, NLRB 

v. Strong, 393 U.S. 357, 358-60 & n. 4 (1968); NLRB v. Rice Lake Creamery 

Co., 365 F.2d 888, 892 (D.C. Cir. 1966). In general, we believe that 

the same approach to back pay applies under the Mine Act. We also are 

of the view that so long as our remedial orders effectuate the purposes 

of the Mine Act, our judges and we possess considerable discretion in 

fashioning remedies appropriate to varied and diverse circumstances. 

See Glenn Munsey v. Smitty Baker Coal Co., Inc., 2 FMSHRC 3463, 3464 

(1980) (analogous approach with regard to relief under the 1969 Coal 

Act). _gf. NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 263 (1969)(explaining the NLRB's discretionary powers under section lO(c) of the NLRA). 

As the judge correctly determined (3 FMSHRC at 1343), the Mine Act's 

legislative history removes any doubt on these points: 

It is the Committee's intention that the Secretary propose, 

and that the Commission require, all relief that is necessary to 

make the complaining party whole and to remove the deleterious 

effects of the discriminatory conduct including, but not limited to 

reinstatement with full seniority rights, back-pay with interest, 

and recompense for any special damages sustained as a result of the 

discrimination. The specified relief is only illustrative. T~us, 

for example, where appropriate, the CoIJU11ission should issue broad 

cease and desist orders and include requirements for the posting of 

notices by the operator. 

S. Rep. No. 95-181, above, 37, reprinted in Leg. Hist. 625. In light of 

the foregoing principles, we affirm the judge's back pay award of 

vacation pay and hearing expenses. 

142 
Regarding vacation pay, it was stipulated below that Estle and 

Dunmire had accrued a right under Northern's benefit package to take a 

week's vacation with vacation pay. The judge reasoned that "vacation 

pay, as part of the employment contract, accrues and has a monetary 

value," and therefore included vacation pay amounts in each discriminatee's 

back pay award. 3 FMSHRC at 1342. Northern argues that because its 

policies prohibit employees from taking vacation pay in lieu of time off 

and because the two miners were paid back pay for the days in issue, the 

award constitutes a form of "double dipping." (Northern does not argue 

that, as a general matter, vacation pay may not be part of a back pay 

award). 

Our concern and duty is to restore the discriminatees, as nearly as 

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

of their illegal terminations. We hold that, in general, vacation pay 

may constitute part of a back pay award. The discriminatees in this 

case had earned a right to both vacation time and vacation pay and while 

we cannot turn back the clock to give them the lost vacation days, we 

can. and do, assign a value to what they lost. The award of vacation 

pay is intended to compensate them not only for the accrued vacation 

pay, but also for the vacations that they lost. Hence, we do not regard 

the award as a form of "double dipping," and we would also reject any 

suggestion that time off following a discriminatory discharge may be 

deemed the equivalent of a vacation. Within the framework of providing 

just compensation, however, we endeavor to make our awards as reasonable as possible. We therefore modify the judge 1 s award to give Northern 

the option, in the event Estle accepts (or has accepted) reinstatement, 

either (1) to pay the compensatory vacation pay as ordered by the judge, 

or (2) innnediately to off er Estle the opportunity to take his last 

week's paid vacation after reinstatement (in addition to the paid vacation 

time he otherwise accrues). Estle may accept either method of compensation. The second option would give Estle back his paid vacation and also 

avoid concurrent payment of regular wages and vacation pay. Because 

Dunmire has left Northern's employ, this additional option is unavailable 

and Northern is directed to pay h~ the vacation pay ordered by the 

judge; the same applies if Estle declines reinstatement or has also left 

Northern's employ since reinstatement. 

Regarding incidental, personal hearing expenses incurred by Estle 

and Dunmire in connection with their attendance, Northern argues that 

because section 105(c)(3) of the Mine Act expressly provides for hearing 

expenses, 23/ while section 105(c)(2) does not mention the subject, 

Congress must have intended that such expenses were outside the scope 

of a section 105(c)(2) remedial award. We agree with the judge that 

the differences in language between the two sections are not as significant as' Northern argues. Section 105(c)(2) expressly provides that 

23/ Section 105{c)(3) establishes procedures under which a miner may 

prosecute a discrimination case in the event that the Secretary declines 

to file a complaint on his behalf. In addition to authorizing back pay 

and reinstatement if the miner's complaint is sustained, the section 

also provides that he shall be reimbursed for his costs and expenses. 

143 
the relief it authorizes is not limited to the reinstatement and back 

pay mentioned. Furthermore, the "illustrative" nature of the relief 

listed in section 105(c)(2) is made clear by the legislative history we 

quoted above. Estle and Dunmire would not have b.orne such expenses (and 

inconvenience) but for Northern's discrimination. We therefore hold 

that reimbursement of their hearing expenses is an appropriate form of 

remedial relief. 

Finally, Northern objects t~ the back pay period used by the judge 

in calculating Estle's back pay. The judge found that Estle's back pay 

period extended from his loss of employment through to his reinstatement, 

less net interim earnings from a job he obtained with another employer 

on April 15, 1980. Northern argues that Estle is tied to the Secretary's 

pleadings, which sought back pay only to his resumption of full employment with another employer (that is, seemingly until April 13, 1980)0 

We affirm and incorporate by reference the judge 1 s thorough and scholarly analysis of this issue. 3 FMSHRC at 1343-45" 

We observe only that, as the judge indicated, back pay is ordinarily 

the sum equal to the gross pay the employee would have earned but fo~ 

the discrimination less his actual net interim earnings. See, for 

example, OCAW v. NLRB, 547 F.2d 598, 602 (D.C. Cir. 1976).---wh.ile back 

pay may be reduced in appropriate circumstances where an employee incurs 

a Hwillful loss of earnings" (fails to mitigate damages) (OCAW v, NLRB, 

547 F.2d at 602-3), we are satisfied that Estle made reasonable efforts 

to mitigate his loss of income. He unsuccessfully sought rehire from 

Northern (p. 5 above); he was not required under the Mine Act to seek 

temporary reinstatement; and, in fact, he found employment in a reasonably short time. We also agree with the judge's refusal to exalt form 

over substance in holding that Estle was not responsible for, and was 

not necessarily limited by, the relief sought in the pleadings. Cf. 

Rule 54(c), Federal Rules of Civil Procedure. Our concern is to make 

miners whole, and technical problems in the pleadings can fairly be 

cured, as they were here, at trial. 

For the foregoing reasons, we vacate the order of temporary reinstatement for Dunmire and, on the basis articulated herein, affirm the 

judge's decision in all other respects. The vacation pay award is 

modified as discussed above. 

144 
Distribution 

Nancy S. Hyde, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Charles W. Newcom, Esq. 

Sherman & Howard 

2900 First of Denver Plaza 

633 Seventeenth St. 

Denver, Colorado 80202 

Joseph F. Furay, Esq. 

Northern Coal Company 

P.O. Box 17583, Tenminal Annex 

Denver, Colorado 80222 

Administrative Law Judge John Morris 

FMSHRC 

333 West Colfax Avenue 

Denver, Colorado 80204 

145 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HOMESTAKE MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 16, 1982 

Docket Nos. 

DECISION 

CENT 79-27-M 

CENT 79-28-M 

CENT 79-206-M 

CENT 79-207-M 

CENT 79-208-M 

CENT 79-332-M 

CENT 80-167-M 

This penalty case arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq.(Supp. III 1979), and 

involves alleged violations of mandatory safety standards. The 

administrative law judge found that the operator had not violated 

30 C.F.R. § 57.12-82 and vacated the underlying citations. However, 

he found violations of other safety standards and assessed penalties. 1/ 

The Secretary of Labor and Homestake Mining Company filed petitions 

for discretionary review which we granted. For the reasons that 

follow, we affirm the judge. 

I. 

The first series of citations alleges violations of 30 C.F.R. 

§ 57.12-82. That standard provides: 

Powerlines shall be well separated or insulated from 

waterlines, telephone lines, and air lines. 

1J The judge's decision is reported at 2 FMSHRC 2295 (1980). 

146 82-2-15 
The parties stipulated that the power cables at issue were hung 

from the back or ribs and were directly in contact with air or water 

or telephone lines. They also agreed that there was no insulation 

between the outer jacket of the cables and the metal lines. Three 

types of power cables are involved here: one has three conductors 

individually insulated with polyethylene, wrapped in filler and 

covered with polyvinyl chloride jacketing; another has three conductors individually insulated with polyvinyl chloride. filler, 

and polyvinyl chloride jacketing; and the third has two conductors 

individually insulated with polyvinyl chloride and one bare ground 

wire, all separated from one another and suspended in polyvinyl 

chloride which forms the jacketing. All the cables are rated by 

the manufacturer at 600 volts, but normally carry only 110 volts 

at Homestake. 2:_/ 

The judge offered alternative reasons for holding the standard 

had not been violated. He first found that these insulated and 

jacketed power cables are not "powerlines" under the standard. 

That term, the judge held, refers to single conductor wires 0 which 

are usually exposed (such as trolley wires). The judge then found 

that, even if these power cables are "powerlines" subject to 30 C.F.R. 

§ 57.12-82, they are insulated in compliance with that standard. The 

judge looked to the definition of insulated in section 57.2 and found 

the cables were "insulated in a manner suitable for the conditions to 

which they were subjected.n 2 FMSHRC 2306. He stated that the poly~ 

vinyl chloride insulation protects the cables from physical abuse 0 as 

does the jacketing of the same substance on all three cables. Id. 

He noted that all the cables are insulated by the manufacturer to 

"withstand ••• more than three times the voltage that actually 

passes through them" and that the jacketing is "tough". Id. The 

judge also concluded, "[T]he plain language of the·standard does not 

require Respondent to provide additional insulation." 2 FMSHRC 

2307. 

The parties argue extensively about the precise definition of 

"powerlines." Expert testimony in this case reveals that the term 

"powerline" is not commonly used as a term of art by those trained 

in electricity, and does not have a modern technical meaning. Nor 

does either party convincingly demonstrate a common usage of the 

term. 3/ We believe this case can be resolved, however, by focusing 

on the-purpose of the standard without an exhaustive analysis of the 

meaning of the term "powerlines". The cables in this mine contain 

conductors that transmit electricity, and thus can be considered 

powerlines; therefore, the standard applies to them. 

!:./ The manufacturer's insulation rating is the amount of current 

a manufacturer guarantees can be run through a cable without damage 

to the cable. 

~./ Further, as another administrative law judge has stated, "Trying 

to ascertain [the meaning of the term "powerlines"] by analyzing other 

standards in which it appears is not helpful since words are not used 

with much precision in the regulations." White Pine Copper, 3 FMSHRC 

481, 484 (1981). 

147 
From its wording, it is apparent that the regulation's purpose 

is to assure that conductors of electricity are either "well separated 

or insulated" to prevent the energizing of air or water pipelines, or 

telephone lines. It follows that the standard seeks to protect miners 

from the hazard of electrical shock and electrocution resulting from 

contact with an energized air or water pipe, or telephone line. The 

question in this case, then, is whether the power cables involved, 

which transmit electric current, were so insulated as to prevent 

the energizing of potentially electrically conductive metal pipes, air 

or telephone lines. 

The standard at 30 C.F.R. § 57.2 provides: 

"Insulated" means separated from other conducting surfaces by 

a dielectric substance permanently offering a high resistance to 

the passage of current and to disruptive discharge through the 

substance. When any substance is said to be insulated, it is 

understood to be insulated in a manner suitable for the conditions 

to which it is subjected. Otherwise, it is, within the purpose of 

this definition, uninsulated. Insulating covering is one means for 

making the conductor insulated. 

In arguing that these power cables are not sufficiently insulated, the 

Secretary relies on an interpretive memo concerning section 57.12-82 

issued on February 21, 1975, by the then Assistant Administrator for 

Metal and Nonmetal Mine Health and Safety. This memo stated in part: 

Jacketing as provided on a powerline by the manufacturer is 

not adequate for the insulating purposes of Federal mandatory 

standard 55, 56, 57.12-82. Additional insulation or separation 

must be provided. 

* * * * * 

Additional insulation means that insulation in 

addition to the jacketing shall have a dielectric 

stre,ngth at least equal to the maximum applied 

voltage on the cond~ctor. l!t_/] 

* 

The amount of additional insulation that would be required by this 

memo is not only minimal but, in terms of the power transmitted and 

dielectric resistance, essentially meaningless. The power cables 

involved in this case would be required to have additional polyvinyl 

chloride insulation approximately 1/3 mil (1/3000 inch) thick. 5/ 

Moreover, the interpretive memorandum imposes a blanket require-;ent 

that additional insulation be placed between power cables and metal 

pipelines, regardless of the cable's existing insulation, dielectric 

strength, the conditions under which the cable is to be used, or the 

composition or design of the cable and its insulation. We recognize 

4/ The dielectric strength or resistance of a substance is the 

ability of that substance to resist the passage of electricity through 

it. Dielectric strength is measured in volts per mil. 

5/ The cables carry 110 volts, thus insulation with a dielectric 

resistance of 110 volts would be required under the 1975 interpretive 

memo. Unrefuted testimony indicates that polyvinyl chloride has a 

dielectric resistance of 375 volts per mil. Polyvinyl chloride 

insulation that is one-third mil thick (1/3000 inch) presumably has 

a dielectric resistance of 125 volts per mil. 

148 
that enforcement of the standard would be simpler if an inspector 

merely has to visually determine whether extra insulation has been 

added where power cables and pipelines meet. We fail to see, however, 

how this superficial examination bears any relationship to the purpose 

of the standard. Rather, in order to make a bona fide determination 

that insulation adequate to prevent the transmission of current to 

adjacent pipelines is present, the adequacy of the added insulation 

must be evaluated, and this determination must be based on the 

objectively determinable character of the powerline and the existing 

insulation. In order to achieve the purpose of the standard, enforcement should not turn on the subjective evaluation of an inspector, 

without the objective evaluation of whether a hazard is or may be 

present. Further, section 57.12-82 does not state that "additional 

insulation" must be placed between "powerlines" and pipelines; it 

merely requires separation or insulation. 6/ 

Thus, we reject the Secretaryvs interpretive memorandum. The 

regulation does not require "additional" insulation, the amount of 

additional insulation required by the interpretive memorandum is, as 

we have noted, so minimal as to be not only essentially meaningless, 

but such as to engender a false and possibly hazardous sense of security. 

The purpose of the standard, as written, can more accurately be achieved 

by an examination of the suitability of the insulation that is present 

at crossover points where water, telephone or air lines are in proximity 

to powerlines. 

Accordingly, the insulation on the cables here involved at the 

points where they contacted pipelines must be examined to determine 

whether section 57.12-82 has been violated. The definition of "insulated" 

in section 57.2 includes a requirement that the insulation be "suitable for the conditions to which it is subjected." The judge noted 

the cables in this case are insulated to withstand more than three 

times the voltage that passes through them. In addition, he noted 

that the jacketing, which also has insulating qualities, is "tough" 

and that unchallenged manufacturer's specifications sheets "contain 

impressive claims of resistance to abuse." 2 FMSHRC 2306. The 

Secretary did not rebut Homestake's evidence. The judge concluded, 

"The insulation and the jacket are sufficient to protect the cables 

against normal hazards in the Homestake Mine." Id. The judge's 

findings are supported by substantial evidence and are therefore 

affirmed. 

6/ If the Secretary intended to require that a particular kind or 

amount of insulation be added to that supplied by the manufacturer, 

he has that authority and could have so stated in the regulation, 

and can do so now through rulemaking. Indeed, we strongly suggest 

that he do so--and promptly. 

149 
II 

This portion of Homestake involves three violations of mandatory 

safety standards. The administrative law judge found that Homestake 

violated these standards. For the reasons that follow, we affirm 

the judge. 

Citation No. 328789 

On November 15, 1978, an MSHA inspector cited Homestake for an 

alleged violation of 30 C.F.R. § 57.3-22. This mandatory standard 

provides in part: 

Miners shall examine and ·test the back, face, and rib 

of their working places at the beginning of each shift and 

frequently thereafter .••• Loose ground shall be taken down 

or adequately supported before any other work is done •••• 

The facts underlying this citation are disputed. The inspector testified that he noticed two miners slushing or preparing to slush muck 

on a slusher machine located outside and immediately opposite the 

entrance to the stope. The inspector also testified that he observed 

two miners inside the stope. Homestake admitted the existence of the 

loose rock. However, Homestake asserted in defense that the presence 

.of a muck pile at the entrance to the stope created a more dangerous 

situation. It argued that the miners would have had to climb onto 

the dangerous muck pile in order to bar down the rock. It asserted 

also that its miners did not go inside the stope. 

The judge rejected Homestake's defense. The judge noted that in 

MSHA v. Asarco, 2 FMSHRC 920, 924 (1980), another administrative law 

judge held that "miners are not required to bar down while standing 

on a muck pile." The judge found that the facts in Asarco were 

distinguishable from the facts here. He held that Homestake 1 s failure 

to establish the size and location of the muck pile failed to bring 

the facts within the Asarco decision. Accordingly, the judge found 

that Homestake had violated the standard and assessed a penalty. 

Before us, Homestake again argues that compliance is not required 

where checking for loose rock would itself create a hazard, and also 

that the judge erred in finding that the muck pile did not create a 

hazard. We reject both arguments. Assuming that Asarco establishes 

a permissible defense to the violation at issue, we concur with the 

judge's finding that Homestake failed to prove the defense. We note 

that the testimony of Homestake's witness was ambiguous; he did not 

expressly state that barring down loose rock required him to climb 

on top of a dangerous muck pile. By contrast, the inspector 

explicitly denied that he saw a muck pile constituting a hazard; nor 

had other miners mentioned the presence of dangerous conditions. The 

judge credited the inspector's testimony over that of the operator, 

a credibility determination we see no reason to overturn. Thus, we 

150 
hold that substantial evidence supports the judge's conclusion that 

Homestake violated the standard. ]_/ 

Citation No. 328928 

On November 8, 1978, an MSHA inspector issued a citation alleging 

a violation of 30 C.F.R. § 57.11-1, because Homestake failed to provide a safe means of access inside a manway. There was only a 13-

inch clearance between the manway ladder and the timbers of the manway 

for a distance of six vertical feet. The cited standard provides: 

Safe means of access shall be provided and 

maintained to all working places. 

The judge found that the stope was a working place within the 

meaning of 30 C.F.R. § 57.2, because one or more miners were working 

there. 8/ He also found that the manway was the only access to and 

from the stope. The judge held that Homestake violated the standard 

because it permitted men to work in a stope that had no safe means of 

access. 

On review, Homestake asserts that the constricted manway led to 

a stope which was not a working place; the only work underway was 

repair of the binline which, together with the manway, constitutes 

the chimney. Therefore, it contends, the stope was not used as a 

means of access to a working place. The inspector testified that 

miners worked only part-time at repairing the binline, when they 

had no work to do in the stope. Homestake's supervisor testified 

that a miner was slushing in the stope above the stope nearest to the 

constricted portion of the manway. Tr. 525-530. In this regard, 

although he stated that he did not believe it was necessary for the 

miner to use the constricted manway, he could not say whether the 

miner had in fact used it. Id. Thus, in our view, substantial 

evidence supports the judge'S-finding that the manway was used as a 

means of access to a working place. 

Homestake next argues that the judge erred in finding that the 

manway was the only access to and from the stope. This error, if any, 

is immaterial. In Hanna Mining Co., 3 FMSHRC 2045, 2046 (1981), we 

considered an identically worded standard, and held that "the standard 

requires that each 'means of access' to a working place be safe." 

(Emphasis adde~ An operator may demonstrate that a cited area is 

not a means of access by proving that no "reasonable possibility" exists 

that a miner would use it to enter or leave a working place. Id. Here 

Homestake failed to establish that the manway was not used as a-means of 

access to the working place; for example, it presented no evidence that 

the manway had been dangered-off to prevent employees, other than those 

engaged in repair, from using the constricted manway. Accordingly, we 

affirm the judge's finding of a violation. 

7/ Homestake's argument that its miners did not actually enter the 

stope and consequently were not exposed to the hazard is without 

merit. The standard requires that miners examine the working place 

for loose ground before commencing work. The judge found that the 

stope was a working place. Homestake admits the existence of the 

loose rock. The presence of the loose rock in the working place 

establishes the violation regardless of whether the miners were 

actually exposed to the danger posed by the rock. 

§_/ 30 C.F.R. § 57.2 provides in part: "'Working place' means any 

place in Or about a mine Where W0r1]_ ~lbeing performed. II 
Citation No. 328953 

On March 1, 1979, an MSHA inspector cited Homestake for an alleged 

violation of 30 C.F.R. § 57.17-1. That mandatory standard provides in 

part: 

Illumination sufficient to provide safe working 

conditions shall be provided in and on all surface 

structures •.•. 

The citation stated: 

Illumination was not sufficient for safe working 

conditions in servicing the sheave wheel ••• and motor 

components of the Otis elevator located at the floor 

level on top of the elevator compartment. Light 

emitted from the warehouse windows located below the 

elevator floor made a blinding effect to observe the 

floor and equipment mounted on the compartment floor, 

The shaft of the Otis elevator was contained in a separate box-like 

structure located above the top floor level and below the warehouse 

ceiling, The sheave wheel, which powered the elevator, was on top 

of the box-like structure, 

The judge found that, although a flashlight or auxiliary light was 

needed to repair the sheave wheel, additional light was also necessary; 

improper lighting could have caused injury. He concluded that Homestake 

violated the standard. 

Homestake argues on review that the standard was satisfied by 

using portable or auxiliary lighting. The operator also asserts 

that the Secretary did not meet his burden of proof because he relied 

solely on the inspector's subjective opinion as to the sufficiency of 

the illumination. 

In Capitol Aggregates, Inc., 3 FMSHRC 1388, 1389 (1981), pet. 

for review filed, No. 91-4278 (5th Cir., July 22, 1981), we held that 

flashlights and auxiliary lights alone could satisfy the standard 

"where such lighting is accessible, its use is feasible and safe, 

and it provides adequate light under the circumstances." In our 

view, Homestake has failed to establish that flashlights or auxiliary 

lights provided adequate illumination here. Nor did it show that 

auxiliary lighting was always used, in addition to flashlights, 

during maintenance and repairs. The judge's finding that the portable or auxiliary lighting was inadequate is supported by substantial 

evidence. Moreover, the judge properly credited the inspector's subjective opinion as to the sufficiency of the illumination in these 

circumstances. Capitol Aggregates, 3 FMSHRC at 1390. J../ Therefore, 

we affirm the judge's finding of a violation. 

2./ See also Clinchfield Coal Co. 1 BNA MSHC 2027 (1979) aff 'd sub 

~.,-crincli'field Coal Co. v. Secretary of Labor, No. 79-1306 (4t~ 

Cir., April 8, 1980) (unpublished), and J.P. Burroughs and Son, Inc., 

2 FMSHRC 3266, 3269 (1980). 

152 
In sum, we affirm the judge's decision as to each of the 

citations. 

Rosemary M. Collyer, Chairman, Concurring~ 

I did not participate in the consideration or ition of Part 

I of this case because of prior representation of the Climax Molybdenum 

Company at a time when the Climax cases dealing with identical issues 

and decided by the Commission today 9 4 FMSHRC --- (DENV 78-553-M 

et al. February 1982) were being tried and argued on I 

concur in the disposition of the citations in Part II. 

153 
Distribution 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Leslie J. Canfield, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

154 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 2000t> 

February 16, 1982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

AND 

LOCAL 5024, UNITED STEELWORKERS 

OF AMERICA, 

v. 

WHITE PINE COPPER DIVISION, 

COPPER RANGE COMPANY 

Docket Nos. LAKE 79-202-M 

LAKE 80-24-M 

DECISION 

This case involves the interpretation of 30 C.F.R. § 57.12-82, 

a mandatory standard under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 !:.!_~· (Supp. III 1979). Section 57.12-82 

provides: 

Powerlines shall be well separated or insulated 

from waterlines, telephone lines, and air lines. 

For the reasons that follow, and for those expressed in our decision 

in Homestake Mining Co., 4 FMSHRC (CENT 79-27-M et al., February 16, 

1982), issued today, we reverse the judge and hold that White Pine 

Copper Division did not violate the standard. 1/ 

Three citations were issued in this case when an inspector 

observed power cables, which were suspended from the back (roof), in 

contact with metal air lines and with a support chain for an air line. 

The cables involved carry 440 or 480 volts. All have three 

individually insulated conductors and three grounding wires surrounded 

};./ The judge's decision is reported at 3 FMSHRC 481 (1981). 

155 82-2 
by a neoprene (synthetic rubber) jacket. They are approved by MSHA 

under 30 C.F.R. § 18.36 for use as trailing cables on mobile equipment. 

The judge held that "powerlines" is not a term of art in electricity and that the "ordinary meaning" of the word includes the 

entire cable--conductors, insulation and jacketing. He found it 

"unlikely that the electrical cables would energize the metal 

lines". 3 FMSHRC 483. Nevertheless, because in his view the 

standard refers to the entire cable, the judge concluded that 

it requires additional insulation between the outer jacket of 

the cable and water, air or telephone lines. 

As we noted in Homestake, the cables involved in these cases 

contain conductors that transmit electricity, and thus can be considered 

powerlines; therefore, section 57.12-82 applies to them. That standard 

must be read in conjunction with 30 C.F.R. § 57.2. ];:./ The purpose of 

these standards is to prevent injury to miners as a result of contact 

with energized air, water or telephone lines. The Secretary relied on 9 

and the j accepted, a blanket "rule" that section 57.12-82 requires 

additional insulation at crossover points without for the suitability of the insulation that in fact was present. We rejected this 

interpretation of the standard in Homestake. Under the standards, the 

insulation present in the cable must be examined in order to determine 

whether there has been a violation. 

The judge found that the cables at issue here, which carry 440 

or 480 volts, "have a maximum voltage rating of between 600 and 2,000 

volts and have at least 25,000 volts of dielectric resistance." 3/ 

3 FMSHRC 483. Further, undisputed evidence indicates that the 

neoprene jacket not only resists abrasion and flame (Tr. 215), but 

also has insulating qualities. Tr. 92, 232. The jacket was 

developed to withstand mine conditions and, as we noted above, 

these identical cables were approved by MSHA for use on the mine 

floor as trailing cables. The Secretary failed to prove that the 

insulation on the cables at issue was unsuitable or otherwise 

insufficient; therefore, he did not prove a violation of section 

57.12-82. 

'l:..J Section 57.2 defines insulated as follows: 

"Insulated" means separated from other conducting surfaces 

by a dielectric substance permanently offering a high resistance 

to the passage of current and to disruptive discharge through 

the substance. When any substance is said to be insulated, it 

is understood to be insulated in a manner suitable for the conditions to which it is subjected. Otherwise, it is, within the 

purpose of this definition, uninsulated. Insulating covering 

is one means for making the conductor insulated. 

3/ The dielectric strength or resistance of a substance is the 

ability of that substance to resist the passage of electricity 

through it. 

156 
Accordingly, the decision of the judge is reversed, and the 

penalties assessed are vacated. !!./ 

Commissioner 

!!_/ Chairman Collyer did not participate in the consideration or 

disposition of this case because of her prior representation of the 

Climax Molybdenum Company at a time when the Climax cases dealing 

with identical issues and decided by the Commission today, 4 FMSHRC 

(DENV 78-553-M et al., Feb. 16, 1982), were being tried and 

argued on appeal. - -

157 
Distribution 

Ronald E. Greenlee, Esq. 

Clancey, Hansen, Chilman, Graybill & Greenlee, P.C. 

Peninsula Bank Building 

Ishpeming, MI 49849 

Leslie J. Canfield, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Harry Tuggle, Esq. 

United Steelworkers of America 

Five Gateway Center 

Pittsburgh, PA 15222 

Administrative Law Judge James A, Broderick 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

158 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

CLIMAX MOLYBDENUM COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

CLIMAX MOLYBDENUM WORKERS, 

LOCAL NO. 2-24410, OIL, 

CHEMICAL AND ATOMIC WORKERS 

INTERNATIONAL UNION 

February 16, 1982 

DECISION 

Docket Nos. DENV 78-553-M 

DENV 78-554-M . 

WEST 79-340-M 

This case involves the interpretation of 30 C.F.R. § 57.12-82, a 

mandatory standard under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 ~· (Supp III 1979). For the reasons that follow, 

and for those expressed in our decision in Homestake Mining Co., 4 

FMSHRC (CENT 79-27-M et al, Feb. 16, 1982), issued today, we 

reverse the judge's decision and hold that the Secretary of Labor failed 

to prove a violation of the cited standard. ];./ 

The relevant facts were stipulated. An inspector issued citations 

after observing power cables, which were hung in haulage drifts, in 

contact with air or water lines. The cables carry voltages of 110 to 

440 volts and were in satisfactory condition. The cables never carry 

voltages greater than the manufacturer's insulation rating. The identical 

type of cable involved is also used as trailing cable and is approved by 

MSHA for that use 1.lllder 30 C.F.R. § 18.36. As a general rule at the 

Climax Mine, air and water lines are on the opposite side of drifts from 

power cables. It is, however, sometimes necessary to locate air or 

water lines, or power cables, across a drift to transmit air, water or 

power to a specific location. Air lines, water lines, and power cables 

frequently cross at the intersections of drifts. 

The judge noted that the term "powerlines" in section 57.12-82 "is 

not susceptible to a precise definitionn and concluded that it encompasses "all constituent parts of the cables." 2 FMSHRC 3695. 

1:./ The judge's decision is reported at 2 FMSHRC 3681 (1980). 

159 82-2 ... 13 
As a result the judge concluded that section 57.12-82 requires insulation 

in addition to that provided by the manufacturer between the outer 

jacket of power cables and air, water, or telephone lines. The judge 

reasoned that, because the standard refers to the entire power cable, 

which itself contains insulation, it must require added insulation. The 

judge also cited the "harsh environment" in underground metal and nonmetal mines in reaching his conclusion. 

Section 57.12-82 requires: 

Powerlines shall be well separated or insulated 

from waterlines, telephone lines, and air lineso 

As we noted in Homestake, the cables involved in these cases contain 

conductors that transmit electricity, and thus can be considered powerlines; 

therefore, this standard applies to themo A powerline is not "insulated11 

unless it is insulated "in a manner suitable for the conditions to which 

it is subj ectedo" J:j The judge concluded that these cables, as they 

come from the manufacturer, are not insulated in a manner suitable for 

the conditions at the Climax Mineo He noted the possibility of damage 

to cables from fly rock, rubbing by haulage equipment, and dragging over 

sharp rock or metal edges. 2 FMSHRC 3699. Although consideration of 

the specific conditions to which the cables are subjected is appropriate, 

indeed necessary, we do not believe that the mere speculative possibility 

that they could sustain some externally caused damage is sufficient to 

render the cables "uninsulated"o ]_/ 

In order to prove a violation of section 57.12-82 the Secretary 

must show that the "powerlines" are not insulated from pipelines. In 

this case, he failed to prove that. The parties stipulated that these 

cables were in satisfactory condition. They are approved for use on the 

mine floor as trailing cables. In addition, the judge made several 

findings indicating that the cables are "substantially overdesigned"o !±_/ 

He found that the insulation in the cables has a dielectric resistance 

]:__/ 30 C.F.R. § 57.2 provides in part: 

"Insulated" means separated from other conducting surf aces by 

a dielectric substance permanently offering a high resistance to 

the passage of current and to disruptive discharge through the 

substance. When any substance is said to be insulated, it is 

understood to be insulated in a manner suitable for the conditions 

to which it is subjected. Otherwise, it is, within the purpose of 

this definition, uninsulated. 

]_/ We note that add~d insulation would also be subject to damage from 

these factors. 

!±_/ The judge stated, "The testimony of Dr. Fred Leffler, Associate 

Professor of Electrical Engineering at the Colorado School of Mines, 

supports Climax's contentions that the cables ••• are substantially 

overdesigned in terms of their dielectric properties." 2 FMSHRC 3698. 

160 
of between 7,500 volts and 23,750 volts, depending on the composition of 

the particular cable. 2 FMSHRC 3698. (The cables carry 110 to 440 

volts.) He also noted that the cables' neoprene jacketing not only 

"protect[s] the insulation from outside forces such as oils, acids, 

alkalies, water or moisture, flame and abrasion", but also "has an 

insulating capability". Id. The judge's conclusion that these cables, 

which we emphasize were iU-satisfactory condition, are not sufficiently 

insulated whenever they· contact air, water or telephone lines is not 

supported by the evidence. 

Accordingly, the decision of the administrative law judge is 

reversed and the penalties he assessed are vacated. 2./ 

Connnissioner 

2_/ Chairman Collyer did not participate in the consideration or 

disposition of this case because of her prior representation of the 

Climax Molybdenum Company at a time when these cases were being tried 

and argued on appeal. 

161 
Distribution 

Charles W. Newcon, Esq. 

Sherman & Howard 

633 Seventeenth St. 

Denver, Colorado 80202 

Richard W. Manning, Esq. 

Climax Molybdenum Company 

1707 Cole Boulevard 

Golden, Colorado 80401 

Leslie J. Canfield, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Edwin Matheson, Chairman 

International Brotherhood of Electrical Workers 

Local 1823 

P .0. Box 102 

Minturn, Colorado 81645 

Ms. Sylvia Balltrip 

Office & Professional Employees International Union 

Local 410 

P.O. Box 1179 

Leadville, Colorado 80461 

Mr. David Jones 

Oil, Chemical & Atomic Workers International 

Local 2-24410 

P.O. Box 949 

Leadville, Colorado 80461 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

U.S. STEEL CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 25, 1982 

Docket No. BARB 76-95 

IBMA 77-1 

DECISION 

This case arises under the Federal Coal Mine Health and Safety 

Act of 1969. 1/ United States Steel Corporation (U.S. Steel) challenges an administrative law judge's decision holding it responsible 

for a violative condition created by an independent contractor working for U.S. Steel. For the reasons that follow, we affirm the judge's 

decision. 

U.S. Steel contracted with American Drilling and Boring Company 

to perform drilling services at U.S. Steel's Lynch No. 37 Mine. 

American extracted cores from the earth to determine the strata and 

coal seams. On September 17, 1975, an MSHA inspector conducted a 

special inspection of the drilling operation under section 103(g) 

1/ 30 U.S.C. § 801 et seq. (1976)(amended 1977). On March 8, 1978, 

this case was pending-On appeal before the Department of Interior's 

Board of Mine Operations Appeals. Accordingly, it is before the 

Commission for disposition. 30 U.S.C. §_961 (Supp. III 1979). 

The Mine Safety and Health Administration (MSHA) has been substituted 

for its predecessor agency, the Mining Enforcement and Safety 

Administration (MESA). 

163 82-2-25 
of the Act. The inspector issued a section 104(a) imminent danger 

withdrawal order to U.S. Steel. l:_/ The order stated in part: 

The No. 1 Acker Core drill ••• was not maintained in safe operating condition in that 

the clutch assembly was broken, and there 

was no possible way for the drill operator 

to stop the drill in case of an emergency 

(section 77.404). 

U.S. Steel filed an application for review of the order. The 

administrative law judge upheld the order and dismissed the application for review. U.S. Steel raises three issues on review: (1) 

whether it was properly cited for a condition created by its independent contractor; (2) whether the judge erred in finding an imminent 

danger existed at the time the order was issued, and (3) whether 

the judge erred in ruling that the order was legally issued. 

The liability argument raised by U.S. Steel is identical to the 

argument rejected by the Commission in Republic Steel Corporation, 

1 FMSHRC 5 (1979), and Kaiser Steel Corporation, 1 FMSHRC 343 (1979). 

Accordingly, based on our decisions in Republic and Kaiser, we affirm 

the judge's holding that U.S. Steel was properly cited for the condition created by its independent contractor. See also Cyprus Industrial 

Minerals Co. v. FMSHRC, 664 F.2d 1116 (9th Cir. 198l)(quoting Republic 

decision with approval), and Harman Mining Corp. v. FMSHRC. No. 81-1189 0 

4th Cir. (December 24, 1981). 

We also reject U.S. Steel's argument that an imminent danger did 

not exist at the time the order .was issued. The judge found that 

"principles of common sense and reason support the inspector's 

determination that the operator of the machine could be seriously 

injured in the event that he could not disengage the clutch and 

stop the machine." Raving carefully reviewed the record, we find 

that the evidence amply supports .the judge's finding that an 

imminent danger existed at the time the order was issued. See 

Pittsburgh & Midway Coal Mining Co., 2 FMSHRC 787 (1980). Thus, 

the judge's finding is affirmed. 

:l:.J Section 104(a) provided: 

If, upon any inspection of a coal mine, an 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. 

164 
U.S. Steel's final argument is that the order was void because 

neither American nor U.S. Steel was served with a copy of the Union's 

complaint as provided for in section 103(g) of the Act. 1/ The only 

evidence on this issue is the inspector's testimony that he did not 

know whether U.S. Steel had been provided a copy of the complaint. 

This testimony falls short of establishing that U.S. Steel in fact 

was not served with the complaint. Also, U.S. Steel has not 

demonstrated how it was prejudiced by the alleged failure of service. 

Accordingly, we affirm the judge's finding that the order was validly 

issued. 

For the above reasons, 

]./ Section 103(g) provided in part: 

Whenever a representative of the miners has reasonable grounds 

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

exists, or an imminent danger exists, such representative shall have a 

right to obtain an immediate inspection by giving notice to the Secretary or his authorized representative of such violation or danger. 

Any such notice shall be reduced to writing, signed by the representative of the miners, and a copy shall be provided the operator 

or his agent no later than at the time of inspection, •••• Upon 

receipt of such notification, a special inspection shall be made as 

soon as possible to determine if such violation or danger exists in 

accordance with the provisions of this title. 

165 
Collyer, Chairman concurring: 

Although my personal views on the issue of an owner-operator's 

liability for contractor violations under the 1969 Coal Act may be 

more in accord with the views expressed.by Commissioner Backley in 

his dissent in Republic Steel, I concur with the result reached by 

the majority here. The 1969 Coal Act, under which the violation 

at issue arose, was amended during the pendency of this appeal. 

In previous cases construing the Coal Act, a majority of the 

Commission resolved the question presented adversely to U.S. Steel's 

position. Republic, supra; Kaiser, supra. I believe that no useful purpose would be served by re-examining this issue in the context 

of the 1969 Act. Accordingly, I vote to affirm. 

Backley~ Commissioner dissenting: 

Again, for the reasons expressed in my dissenting opinion in 

Republic Steel, 1 FMSHRC at 12-19, I must disagree with my colleagues. 

I believe it clear that U.S. Steel was cited improperly for the 

violations committed by its independent contractor. 

Richard 

/ 

V. Backley, Commissioner ~ 

166 
Distribution 

Billy M. Tennant, Esq. 

Louise Q. Symons, Esq. 

U.S. Steel Corporation 

600 Grant Street 

Pittsburgh, PA 15230 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

167 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

February 25, 1982 

Docket Nos. MORG 75-265 

~· MORG 75-377-P 

CONSOLIDATION COAL COMPANY 

IBMA 76-69 

ORDER 

On January 4~ 1982, the Secretary of Labor filed a motion for 

voluntary dismissal of this caseo We issued an order on February 11 0 

1982 1 reserving ruling on the motion for 10 days from the date of 

our order so as to afford the participants in this proceeding the 

opportunity to file a response to the Secretary's motion. No 

responses have been filed with the Commission. Accordingly, the 

Secretary's motion for voluntary dism· al of this case is granted. 

168 82-2-23 
Distribution 

Leslie J. Canfield, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Alan B. Mollohan, Esq. 

Corcoran, Hardesty, Ewart, Whyte & Polito, P.C. 

1575 Eye Street, N.W. 

Suite 510 

Washington, D.C. 20005 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Stephen B. Jacobson, Esq. 

Decastro, West & Chodrow, Inc. 

18th Floor 

10960 Wilshire Blvd. 

Los Angeles, California 90024 

169 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CLEVELAND CLIFFS IRON COMPANY, 

Contestant 

SECRETARY OF LABOR, 

Respondent 

SECRETARY OF LABOR, 

Petitioner 

v. 

CLEVELAND CLIFFS IRON COMPANY, 

Respondent 

DISTRICT 33, UNITED STEEL WORKERS 

OF AMERICA, 

Representative 

of the miners 

fEB 1 \982 

Contest of Citation 

Docket No. LAKE 80-295-RM 

Citation No. 286910; 4/10/80 

Empire Mill 

Civil Penalty Proceeding 

Docket No. LAKE 80-417-M 

A.C. No. 20-01012-05066V 

Empire Mine or Mill 

DECISION 

Appearances: Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill 

& Greenlee, Ishpeming, Michigan, for Cleveland Cliffs Iron 

Company; 

Before: 

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for th~ Secretary 

of Labor; 

Ernest Ronn, Marquette, Michigan, and Paul S. Gravedoni, 

Negaunee, Michigan, for the Representative of the Miners. 

Judge Broderick 

STATEMENT OF THE CASE 

; 

The above cases were consolidated for hearing and decision. Th~y invqlve 

a challenge to the propriety of a citation issued charging a violation of the 

mandatory safety standard contained in 30 C.li'cR. § 55.15-6, and a proposal 

for a civil penalty based on the same citation. The citation charges that 

50 gallons of fluid containing polychlorinated biphenol (PCB) spilled at the 

Empire Mill of Cleveland Cliffs Iron Company (CCI) on April 10, 1980, and that 

employees assigned to contain and clean up the spill were not provided with 

proper protective clothing. 

171 
A hearing was commenced on May 13, 1981, and continued on August 11 and 

12, 1981, in Marquette, Michigan. Anthony Maino, John Elvetici, Kenneth 

Holmes and Martin Sather, all employees of CCI, testified on behalf of the 

Secretary. William Carlson, Supervisor in the MSHA Marquette Michigan Field 

Off ice and Richard Vik, District Manager of the MSHA North Central District 

Office Duluth, Minnesota, also testified on behalf of the Secretary. Kenneth 

Blau, an Industrial hygenist, and Leslie Jennings, both with the company's 

Central Safety Department; Jerry Oja, Mine Superintendent at the Empire Mine, 

Terry Steen, foreman, Francis B. Laurila, electrical shift supervisor, Dennis 

Laituri, operating engineer, and James Tonkin, Safety Coordinator, all at the 

Empire Mine; and Richard Walcott, an Industrial Hygenist with the Clayton 

Environmental Consultants, all testified on behalf of CCI. 

Post-hearing briefs have been filed by each partyo I have considered 

the contentions made in the briefs and based on the record and the contentions 

of the parties, I make the following decisiono 

REGULATORY PROVISION 

30 C.F.R. § 55.15-6 provides as follows~ 

Special protective equipment and special protective 

clothing shall be provided, maintained in a sanitary and 

reliable condition and used whenever (1) hazards of process 

or environment~ (2) chemical hazards~ (3) radiological 

hazards, or (4) mechanical irritants are encountered in a 

manner capable of causing injury or impairment. 

FINDINGS OF FACT 

1. Cleveland Cliffs Iron Company was, at all times pertinent to this 

proceeding, the operator of the Empire Mine or Empire Mill located in 

Marquette County, Michigan. 

2. The Empire Mill is a large operation employing over nine hundred 

workers which produces products which enter interstate commerce. 

3. On April 10, 1980, at approximately 6:50 p.m., a transformer on the 

fourth level of the mill exploded resulting in a spill of 40 to 50 gallons 

of askerel transformer oil. 

4. The transformer oil contained a mixture of polychlorinated 

biphenyls (PCB's) and trichlorobenzine. The PCB's constituted from 55 to 

70 percent of the oil. 

5. The oil ran down to the control room located on the third level, 

through the grating to the second level, the main floor and the basement. 

6. The basement contained launders (floor drains or ditches) designed 

to drain the overflow water in the milling process. 

172 
7. The company had experienced a PCB spill in December 1979 at its 

Tilden Mine. 

8. Following the December, 1979 spill there were discussions between 

MSHA and company officials concerning the procedures to be followed in 

handling PCB spills. The company's Central Safety Office began preparing a 

clean-up procedure including a training program for employees. 

9. A written clean-up plan entitled "PCB Handling and Disposal," 

introduced in evidence as GX-3, was prepared and distributed to the mines in 

early April 1980. Among other things it provided that the first priority in 

the event of a spill is to control its spread by damming or diking the leak. 

It required in the event of a major spill that non-porous clothing, including 

rubber or vinyl gloves, jacket, pants and boots, be worn to prevent skin 

contact; that face shields and breathing apparatus be worno 

10. The company also prepared an employee training program including a 

slide show. It was sent first to the Tilden Mine and was at the Tilden Mine 

on April 10, 1980. 

11. The written plan (GX-3) was received by the Empire Mine about 

April 8 or 9, 1980. It had not been implemented as of April 10. None of 

the employees had received training in the handling and disposal of PCB's 

prior to April 10. 

12. Within 10 minutes of the spill on April 10, 1980~ one employee was 

sent to the warehouse to get rags, and a cart was dispatched to obtain bags 

of "oil dry" which were located on the second floor about 1/16 of a mile from 

the site of the spill. 

13. Six or seven employees were engaged in spreading rags and oil dry 

on the control room floor in an attempt to contain the spill. Oil was 

present on the walls, the control cabinets and an area approximately 10 feet 

square on the floor. Thereafter a fan was placed in the doorway to remove 

fumes. The employee lunch room was a short distance away on this level. 

The employees were wearing ordinary work clothes including ordinary work 

shoes. One employee became nauseous from the fumes. 

14. The employees then went to the basement and spread additi~"..,l oil 

dry on the floor and attempted to prevent the oil from getting in the 

launders. They were still wearing regular work clothing. There was oil 

on the handrailing to the basement, on the walls, dripping down the pipe and 

on the basement floor. The employees got oil on their clothing including 

their boots. One employee got some oil on his forearm and later developed 

an itch. 

15. After about 1 hour, the oil dry was all spread and the employees 

were directed to remove their contaminated clothing and to shower.. The 

affected areas were roped off. 

173 
16. MSHA Supervisory Inspector Carlson took dust and smear samples which 

were sent to the MSHA laboratory in Denver, Colorado. The dust sample was 

negative and the smear sample positive for PCB. 

17. On April 25, 1980, a citation was issued charging a violation of 

30 C.F.R. § 55.15-6. 

18. On April 11, 1980, the company began to clean up the spill which 

had been contained. The employees involved in this operation wore 

disposable rubber clothing including boots and gloves and face shields with 

respirators. MSHA officials were present at the mine during the cleanup. 

19. Following the April 10, 1980 oil spill the company plan for 

handling P9B spills was discussed at hourly employee safety meetings. 

Protective clothing was obtained and placed in a newly installed cabinet on 

Mill Line 15. 

20. PCB is a toxic substance and can cause damage to a person if 

inhaled, ingested, or contacted dermally. Exposure to PCB can cause damage 

to internal organs, especially the liver. A single short term exposure would 

not ordinarily cause serious damage, however. 

ISSUES 

lo Are the terms of 30 C.F.R. § 55.15-6 impermissably vague? 

2. Do the fa'cts show that CCI failed to provide and use special 

protective equipment and special protective clothing on encountering hazards 

in a manner capable of causing injury or impairment? 

3. If a violation is shown to have occurred, was it caused by the 

unwarrantable failure of CCI to comply with the regulation? 

4. If a violation is shown to have occurred, what is the appropriate 

penalty therefor? 

CONCLUSIONS OF LAW 

A. The Regulation 

Respondent challenges the regulation as vague on the ground that it 

fails adequately to advise mine operators "of the type of special protective 

clothing needed for compliance with the regulation." If Respondent's argument 

were accepted, it would require the regulations to spell out in detail the 

equipment and clothing required in the event of an infinite number of possible 

adverse employment exposures. The regulation is clear and as specific as it 

can reasonably be. The fact that (as Respondent argues) MSHA failed to 

provide specific guidance beyond the terms of the regulation does not make it 

impermissably vague. In fact the record clearly shows that prior to the 

violation alleged herein, Respondent had prepared a specific plan for dealing 
with PCB spills which included the requirement of non-porous clothing to 

prevent skin contact. However it acquired the awareness, there is no doubt 

that Respondent was aware of the requirements of the mandatory standard as 

related to PCB spills. 

B. The Violation 

Respondent asserts, and I concur, that the first priority irt the event 

of a PCB spill is to prevent the fluid from entering water courses. This 

does not negate a requirement that workers engaged in the containment 

activity be protected from exposure. The requirements are in no way incompatible and there is nothing inherently impossible about their being observed 

simultaneously. Specifically related to the situation under consideration? 

there is no reason why the employees who were sent for rags and oil dry could 

not also have obtained protective equipment and protective clothingo In fact 

they were not directed to obtain the latter. The evidence is clear that 

protective equipment and protective clothing were not provided for or used 

by the employees engaged in the containment of the PCB spill on April 10~ 

1980. The evidence is also clear that the exposure to the PCB caused at 

least two injuries: one worker experienced nausea from the fumes and one 

worker suffered a temporary dermatitis from skin contact with the oil. The 

record further indicates that the spill resulted in hazards to workers 

capable of causing further injury or impairment. Therefore a violation of 

30 C.F.R. § 55.15-6 is established. 

C. Unwarrantable Failure to Comply 

Respondent was aware in July, 1979 that PCB was used in transformers 

at its mines. In December 1979 a spill occurred, and Respondent was aware 

of the need to establish a procedure to be followed to contain future spills 

and to train employees in implementing it. It was aware of the danger of 

PCB contamination of water courses and of the hazards of employee exposure 

to the substance. It had in fact prepared a written procedure to handle PCB 

spills and was in the process of training its employees. But ·the plan was 

not implemented; the employees involved were not trained, despite a 4-month 

period following the December, 1979 incident. Does this constitute an 

"unwarrantable failure to comply" with the standard? If a violation results 

from an operator's failure to correct conditions or practices which it knew 

or should have known existed, the violation is the result of its unwarrantable 

failure to comply. Zeigler Coal Company, 7 IBMA 280 (1977). Based on that 

standard, I conclude that the violation found herein resulted from CCI's 

unwarrantable failure to comply with the regulation. 

D. Penalty 

The parties have stipulated that CCI is a large operator, that it has a 

moderate history of previous violations, and that the imposition of a 

reasonable penalty will not affect its ability to continue in business. 

Based upon my analysis of unwarrantability, supra, I conclude that the violation was caused by ordinary negligence of CCI. Injuries resulted from the 

175 
violation, but were minor. More· serious injuries could have resulted, but 

the evidence as to their nature and seriousness is inconclusive. I conclude 

that the violation was moderately serious. 

The citation was not issued for this violation until April 25, 1980. 

Prior to that date, CCI picked up the contaminated clothing and directed 

affected employees to shower. On April 11, 1980, the clean-up program was 

begun and the employees involved were provided with special protective equipment and special protective clothing. The written program for handling PCB 

spills was implemented following the April 10 spill and was discussed at 

employee safety meetings. Protective clothing was placed in a special area 

for employee use. These facts show that CCI demonstrated good faith in 

attempting to achieve rapid compliance after notification of the violation. 

I conclude that an appropriate penalty for the violation is $7500 

ORDER 

Based upon the above findings of fact and conclusions of law~ IT IS 

ORDERED: 

1. The contest of the citation is denied and the 

citation is AFFIRMED. 

2o CCI shall pay the sum of $750 as a penalty for 

violation of 30 C.FoRo § 55015-6 within 30 days of the date 

of this decision. 

Distribution: By certified mail 

J(i,HU<l' Af!lzx~t~ James A. Broderick 

Administrative Law Judge 

Ronald E. Greenlee, Esq., Attorney for Cleveland Cliffs Iron Company, 

Clancey, Hansen, Chilman, Graybill & Greenlee, Peninsula Bank Building, 

Ishpeming, MI 49849 

Stephen P. Kramer, Attorney, Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Mr. Harry Tuggle, United Steelworkers of America, AFL-CIO-CLC, Five Gateway 

Center, Pittsburgh, PA 15222 

Mr. Ernest Ronn, Safety and Health Coorditator, District 33, United 

Steelworkers of America, 706 Chippewa Square, Marquette, MI 49855 

176 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

.FEB 2 t982 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, 

v. 

SIERRA BLANCA MILLING & PROCESSING 

Respondent. 

co.,) 

) 

) 

) ~~~~~~~~~~~~~~~~~~~-

DOCKET NO. CENT 80-337-M 

A/C No. 29-01796-05002 

MINE: Sierra Blanca Mill 

DECISION AND ORDER 

Appearances: 

Allen Reid Tilson, Esq., Office of the Solicitor 

United States Department Labor, 555 Griffin Square, Suite 501 

Dallas, Texas 75202 

For the Petitioner 

Billy D. Thomas, President 

Sierra Blanca Milling & Processing Company 

Ruidoso, New Mexico 88345 

Pro Se· 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

Petitioner filed a petition pursuant to the Federal Mine Safety and 

Health Act of 1977 (the "Act") requesting the assessment of a civil penalty 

against the respondent for alleged violation on January 16, 1980, of 30 

C.F.R. § 55.15-6 l_/ 

1/ The pertinent part of the regulation states as follows: 

Mandatory. Special protective equipment and special protective 

clothing shall be provided, maintained in a sanitary and reliable condition 

and used whenever (2) chemical hazards, ..• are encountered in a manner 

capable of causing injury or impairment. 

177 
By way of answer respondent alleged that the land on which any 

violation occurred had been subleased to two other mining companies and 

that the employees "who were in violation" had not worked for respondent 

since September 16, 1979. 

At the commencement of the hearing an additional issue was added by 

the respondent. Respondent contended that it had also intended to contest 

seven other citations which had also been served on respondent for alleged 

violations occurring on January 16, 1980, and January 17, 1980. 

The petitioner contends that the Office of Assessments had duly 

notified respondent that the forms which were sent to it were the ones on 

which it should make notice of contest; and that since respondent properly 

completed only one of the forms, it did not contest the other citations 

issued. Thus, having failed to contest those citations in accordance with 

the rules of procedure, the proposed penalties became the final order of 

the Conunission and were not subject to review. 

The petitioner agreed that ruling on whether or not all eight 

citations were at issue instead of just the one alleged by the petitioner 

would be reserved until evidence on all citations were received at the 

hearing. Accordingly, evidence was presented as if the complaint had 

alleged all eight citations along with proposed penalties applying thereto, 

Findings and Conclusions in Regard to Ruiing Reserved at the Hearing 

After the proposed assessment forms on all eight citations had been 

sent to the respondent by the Office of Assessments of MSHA, respondent, 

within the 30 days allowed, wrote on one of the cards which had been sent 

to him, the following words: 

"None of the penalties applied to our operation! No mining 

operations since August 1979. 11 

Respondent had also marked an "X" on the card by the following printed 

words: 

"I wish to contest and have a formal hearing on al 1 the 

violations listed in the proposed assessment." 

The card was signed "Billy D. Thomas, Pres." 

The card was stapled to the other cards which respondent had received, 

and all the cards were returned to and date stamped by the Office of 

Assessments on June 23, 1980. However, none of the other cards had any 

notations on them indicating whether or not any further citations were 

being contested. Respondent had also sent a letter which was received by 

the same Office of Assessments on June 16, 1980, in which respondent listed 

all eight citation numbers. In the letter respondent alleged that the 

citations did not apply to it. Since only one card had been specifically 

marked, the petitioner filed a "Complaint Proposing Penalty", alleging only 

one citation, No. 173872. 

178 
I. find that respondent did intent to contest all eight citations. 

Although each card returned to the Office of Assessments by the respondent 

was not signed separately, they were all sent together in one letter. The 

notation by "Billy D. Thomas, Pres~~', showed that he did not believe any of 

the "penalties" applied to his corporation. Thus, all of the 

citations were placed in issue. 

I find that respondent was in substantial compliance with procedural 

rule 25 in that the petitioner received the return cards and the letter 

within the required 30 days. Therefore, all eight citations were properly 

at issue at the hearing. 

Additional Findings and Fact: 

1. There is no history of previous violations by the respondent. 

2. Respondent is a small operator. 

3. The assessment of penalties proposed will not affect respondents 

ability to continue in business. 

4. Respondent demonstrated good faith in attempting to achieve rapid 

compliance after notification of the alleged violations. 

CITATION NO. 173877 

Petitioner alleges that the operator in charge of the mill had not 

given the required notice to MSHA pursuant to 30 C.F.R. 55.26-1 2/, 

before commencement of construction of its mill, and that the mill had been 

under construction for approximately four months prior to the inspection on 

January 16, 1980. Responrlent contends that it was merely landlord of the 

property which it had subleased to two other companies, namely, Eagle Peak 

Mining Company and Double Eagle Mining Company, and, that, therefore, 

respondent was not responsible for the alleged violations. 

The MSHA inspector testified that when he arrived at the site there 

was "beginnings of what was required to construct a mill. 11 There was a 

corrugated metal building under construction with dimensions of approximately 30 feet by 60 feet. There was a partly submerged tank in place to 

hold fluid and an earthern tank at the rear of the building with a drain 

from the building to the tank. There was a house trailer also located on 

the site. Three persons were in the metal building disassembling the 

fittings on a large vat which was not in operation. Electrodes had not 

2/ The pertinent part of the regulation states as follows: 

Mandatory. The owner, operator, or person in charge of .any metal and 

non-metal mine shall notify the nearest Metal and Nonmetal Mine Safety and 

Health Subdistrict Office of the Mine Safety and Health Administration 

before starting operation of the approximate or actual date mine operation 

wi 11 connnence • • • • 

179 
been installed and as yet there was no electrical power wired to· the 

building. One of the three persons in the metal building who was an 

employee of the respondent told the MSHA inspector that the mill was under 

construction and that ore would be milled by a mill located nearby until 

such time as construct'ion of the. mill on which they were working was 

.completed. The minerals to be milled or processed were ~oming from the 

Jicarilla Pit, a location owned by the respondent. 

Since the facility and equipment were to be used in the milling of 

minerals, the location inspected constituted a mine and was subject to the 

jurisdiction of the Act, according to the definition contained in section 

3(h)(l) of the Act. The pertinent .part of that section defines a mine as 

11 ••• lands, structures, facilities, equipment, •.• or 

other property ••• to be used in the milling of such 

minerals ••• 

The cited regulation, 30 C.F.R. 55.26-1, does not require that the 

facility be in any particular stage of completion before the required 

notification must be given to MSHA. The regulation requires that notice be 

given of the approximate or actual date the operation will commence. 

Since no notice had been given as required, there was a violation of the 

regulation. 

The question then is, who was the 11 owner, operator, or person in 

charge" who should have given the notification to MSHA? By way of defense 

respondent has denied that it was the operator, but was merely "landlord" 

of the property where the mine facility was located. 

The definition of "operator" is set forth in section 3(d) of the Act, 

and includes: 

11 • • • any owner, 

or supervises a 

lessee, or other person who operates, controls, 

. • • mine •.• ". 

To control is to "exercise restraining or directing influence over" a 

matter. 3/ The conduct of the respondent must be examined in order to 

determine whether or not respondent exercised control over the mine 

facility. If respondent did exercise control, then respondent is an 

operator; but if respondent did not exercise control, then by definition 

respondent is not an operator. It should also be noted that the definition 

of operator in the Act does not mention that the control or the supervision 

of the operator must be exclusive. 

3/ Black's Law Diet ionary defines to control as to "exercise restra1n1ng 

or directing influence over; regulate; restrain; dominate ••. 11 • 

180 
Billy Thomas, the President of the respondent corporation, testified 

that on behalf of respondent, he leased six acres of land from American 

Mineral Recovery, Inc., (hereinafter, "American") which had a mill on land 

contiguous to the six acres. The respondent leased the property because 

American wanted respondent to set· up a refinery in order to refine the ore 

processed through the mill at American. The ore would come from respondent's Jicarilla pit to the mill at American. After it was processed 

there, it would go to respondent's refinery located on the six acres of 

land leased from American. The refined concentrate would then be sent to 

the smelter. When respondent leased. the acreage from American there were 

no improvements on the property. Respondent had moved a house trailer onto 

the property in preparation for pursuing refinery operations, 

Billy Thomas testified further that the six acres leased was then 

subleased to two entit , namely, Eagle Peak Mining Company and Double 

Eagle Mining Company. Dale Runyon was the apparent owner of Eagle Peak 

Mining Company. A contract introduced into evidence showed that American 

was planning to mill respondents ore and also ore supplied by Mr. Runyon. 

Billy Thomas testified that his agreement with Mr. Runyon was that when Mr. 

Runyon finished using the building that Double Eagle Mining Company and Mr. 

Runyon were constructing on the six leased acres, they would vacate it, and 

respondent would then become owner of the building. It was anticipated 

that Mr. Runyon and Double Eagle Mining Company would use the building 

about six.months. The sublease between these parties was never signed and 

no copy of it was into evidence. 

Assuming the facts as to be as stated by respondent, it is apparent 

from a review of all the testimony and exhibits that respondent had 

exercised substantial control over the operation of the facility. This 

conclusion is reached based on the following facts: 

1. Although the site had been subleased to Eagle Peak Mining Company 

and Double Eagle Mining Company respondent exercised control over the 

property by moving the house trailer onto the property November, 1979, 

approximately two months before the inspection. 

2. When the MSHA inspector arrived at the site on January 16, 1980, 

three persons were disassembling fittings on a large vat. Two of those 

persons were employed by Double Eagle Mining Company, but the third person 

was employed by the respondent. 

3. Two persons employed by Double Eagle Mining Company at the s 

told .the MSHA inspector that Billy Thomas, President of the respondent, 

frequented the te to give them instruction and to supervise, guide, or 

direct the operation. 

4. The MSHA inspector observed that three persons may have been in 

contact with cyanide while working on the vat. When Billy Thomas was 

contacted by the inspector in regard to the presence of cyanide, Thomas 

181 
indicated he did not approve its use, but he would provide "the people" 

with protective clothing. After Thomas found out about the use of cyanide 

on the property he directed the owner to remove it. 

5. At some time prior to January 16, 1980, Billy Thomas had sent his 

son, who was employed by the respondent, along with another employee of the 

respondent, to the leased property with instructions to help the three 

persons who were working there on the construction of the building to 

install the roof trusses. Of the three persons already working on the 

building, two were employees of Double Eagle Mining Company and one was an 

employee of the respondent. These were the same persons who were present 

at the time of the inspection on January 16, 1980. 

6, Respondent had operated a mill in another location prior to the 

time the six acres were subleased from American. After the inspection the 

MSHA inspector contacted Billy Thomas by telephone, and Mr. Thomas informed 

the inspector that he thought he had already informed the Federal Government of his change of location by showing it on a quarterly employment 

form. This indicates that respondent intended to change his business 

·location to the new site prior to the inspection. 

7. On January 17, 1980, the son of Billy Thomas who was employed by 

the respondent corporation went to the mill site to remove some furniture 

from the mobile home, While he was there he encountered the MSHA inspector 

and the three persons who had been working there. The MSHA inspector 

informed Mr, Thomas 9 son that he had closed down the building temporarily 

due to some problems. Thomas' son told the three persons who had been 

working, two employed by Double Eagle Mining Company and one employed by 

the respondent, to keep out of the building until "we get everything 

straight". The MSHA inspector gave the citation to Thomas' son and he took 

them to Billy Thomas. 

8. When the MSHA inspector contacted Billy Thomas to ask him who was 

in charge at the work site, Thomas said that Ted Zamora was in charge and 

that Thomas would send Zamora a letter to that effect. At that time Zamora 

was being paid as an employee of Double Eagle Mining Company. 

If respondent had merely leased the six acres and exercised no further 

control over the improvements being constructed, respondent would not be 

classified as the operator according to the definition. However, 

respondent's conduct shows that the sublease to Double Eagle Mining Company 

and Eagle Peak Mining Company was not an "arm's length" transaction. 

Respondent continued to exercise some control over the operation even 

though two of the employees present when the inspection took place were 

employed by Double Eagle Mining Company. 

Accordingly, I conclude that there was a violation of 30 C.F.R. 55. 

26-1, that respondent was the "operator or person in charge" within the 

meaning of the regulation, and that Citation No. 173877 should be 

affirmed. 

182 
CITATION NO. 173872 

Petitioner alleges that on January 16, 1980, special protective 

clothing was not provided to employees in violation of 30 C.F.R. 

55-50.6. _!_ Employees were observed working on a chemical vat that had 

previously been used in a cyanide milling process. The liquid solution of 

cyanide liberated from the vat was observed as having saturated an area of 

sand approximately 10 feet by 10 feet. The employees were required to work 

over and walk through the sand and liquid material. The employees were 

wearing leather boots with neoprene soles. One employee was wearing 

leather gloves~ and one was not. Thus, the employees were wearing no 

special protective clothing. 

When the samples, taken from the liquid solution and sand that was 

directly under the vats where workers were standing, were analyzed by a 

laboratory, it was found that they contained quantities of cyanide. The 

testimony was undisputed that the workers could have become ill from 

contact with the cyanide while using no special protective clothing, 

Pet it ioner has shown by preponderance of the evidence that there was a 

violation of the cited regulation. The Citation should be affirmed. 

CITATION NO. 173873 

Petitioner alleges that hazardous material was being stored in the 

corrugated metal building in an open 55 gallon drum which was not labeled 

to indicate the hazardous material contained therein, namely, ore concentrate material containing cyanide. A violation of 30 C.F.R. 55. 

16-4 4/ was alleged, · 

'The evidence is undisputed that the drum was not la be led. A sample 

taken from the drum was analyzed by a laboratory and it was found to 

contain cyanide. Petitioner's witness testified without rebuttal that had 

the material been picked up by an employee, the cyanide could have been 

absorbed into the skin and could have caused illness. 

Since the material allegations of Petitioner have been proven by a 

preponderance of the evidence, the Citation should be affirmed. 

4/ Mandatory. Hazardous materials shall be stored in containers of a type 

approved for such use by recognized agencies; such containers shall be 

labeled appropriately. 

183 
CITATION NO. 173874 

Petitioner alleges that at the time of the inspection a competent 

person was not designated by the mine operator or was not in attendance at 

the mine site to take charge in case of an emergency, in violation of 30 

C.F.R. 55.18-9._2/ 

The MSHA inspector testified that when none of the three persons at 

the site would admit to being in charge, the inspector telephoned Billy 

Thomas, President of the respondent, and Thomas said that Ted Zamora, an 

employee being paid by Double Eagle Mining Company, was in charge and that 

he "always had been". Thomas also stated that he would send Zamora a 

letter to that effect. 

Based on the testimony of Billy Thomas, I find that Ted Zamora was 

designated as a competent person in charge, and that he was in attendance 

at the time of the inspection. 

Accordingly, the Citation should be vacated, 

CITATION NO. 173875 

Petitioner alleges a violation of 30 C.F.R. 55.15-1 .. §/ The 

Citation alleges that water or neutralizing agents were not available for 

employees to use in the event of contact with corrosive chemicals and 

harmful substances being stored at the mill. 

There was a 55 gallon drum of ore concentrate on the property and an 

analysis of the material in the drum showed that it contained some 

cyanide. Petitioner's witness testified that absorption of the cyanide 

into the unprotected skin of a worker could cause illness. There was also 

cyanide present in the sand under the vat on which the employees were 

working. 

Water was available on the adjacent property at American, but there 

was no evidence to show that this water would have been available at all 

times while persons were working on respondent's property. 

5/ Mandatory. When persons are working at the mine, a competent person 

designated by the mine operator shall be in attendance to take charge in 

case of an emergency. 

6/ The pertinent part of the regulation states as follows: 

Mandatory •••• water or neutralizing agents shall be available 

where corrosive chemicals or other harmful substances are stored, handled, 

or used. 

184 
Consequently, a violation of the regulation was proven a by preponderance of the evidence and the Citation should be affirmed. 

CITATION NO. 173876 

Petitioner alleges that adequate first aide material including 

blankets were not provided at the mill site. Further allegations are that 

the three employees working at the mill stated that they had not seen or 

been informed as to the location of any first aid material at the mill, all 

in violation of 30 C.F.R. 55.15-1. !_/ 

Respondent presented no evidence that adequate first aid materials 

were provided. Thus, the petitioner has proven by a preponderance .of the 

evidence that the cited regulation was violated. The Citation should be 

affirmed. 

CITATION NO. 173879 

Petitioner alleges that records of examination of each working place 

that were conducted by a competent person designated by the operator and 

conducted at least once each shift were not available for review by an MSHA 

representative •. ~/ 

The evidence shows that the improvements on the property were still 

under construction and development, and that there was no production nor 

any particular designated work place or shift for the three employees ... 2/ Under these circumstances I find that no violation has been 

proven by preponderance of the evidence. The Citation should be vacated. 

7/ The pertinent part of the regulation states as follows: 

Mandatory. Adequate first aid materials, including stretchers and 

blankets, shall be provided at places convenient to all working areas. 

8/ The pert inert part of the regulation stat.es as follows: 

Mandatory. A competent person designated by the operator shall 

examine each working place at least once each shift for conditions which 

may adversely affect safety or health ••• (b) a record that such examinations were conducted shall be kept by the operator for a period of one 

year, and shall be made available foi review by the Secretary or his 

authorized representative. 

9/ A shift is defined as the "number of hours or the part of any day work. 

Also called tour." U.S. Department of the Interior, Bureau of Mines, a 

dictionary.of Mining, Mineral, and Related Terms. Page 1000 (1968). 

185 
CITATION NO. 173889 

Petitioner alleges that the 7000-2 quarterly employment report was not 

retained at the immediate mine site office and made available for review by 

an MSHA representative in violation 30 C.F.R~ 50.30(a). l!}_/ 

At the time of the inspection on January 16, and 17; 1980, there was 

no Form 7000-2 at the mine site. According to the requirements of the 

regulation the quarterly report for employees who worked in January, 1980, 

would not be due until 15 days after the quarter ended on March 31, 1980. 

The lease agreement in which the six acres were subleased from American was 

dated October 16, 1979. Although an individual may have worked at the mLne 

during the quarter of October, November, and December, there was no 

evidence presented to show what took place during that period of time. 

Thus, the petitioner failed to present evidence that any individual worked 

at the mine during a calendar quarter which would have required that Form 

7000-2 be filed. 

The petitioner having failed to present a pr1ma facie case, the 

Citatfon should be vacated, 

In regard to al 1 cit at ions whi.ch should be affirmed, I find that the 

gravity 6f the violations was not serious, and that the operator is 

chargeable with ordinary negligence. 

CONCLUSION OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parties and subject matter of these proceedings. 

2. The Petitioner hits proven by preponderance of the evidence that 

the Resp6ndent violated the regulations *s cited in Citation Nos. 173877, 

173872, 173873, 173875, and 173876. 

3. The Petitioner has failed to prove by a preponderance of the 

evidence that Respondent violated regulations as cited in Citation Nos. 

173874, 173879, 173889. 

10/ The pertinent part of the regulation states as follows: 

(a) Each operator of a mine in which an individual worked during any 

day of a calendar quarter sh al 1 complete a MSHA Form 7000-2 in accordance 

with the instruction and criteria in section 50.30-1 and submit the 

original to ••• MSHA .•. within 15 days after the end of each calendar 

quarter. 

186 
ORDER 

Citation Nos. 173874, 173879, and 173889 and the penalties therefor 

are vacated. The following Citations are affirmed and the respondent is 

ordered to pay civil penalties assessed in the total sum of $578.00 within 

30 days from the date of this Decision. 

CITATION NO. 

173877 

173872 

173873 

173875 

173876 

TOTAL 

CIVIL PENALTIES 

ASSESSED 

$ 20.00 

240.00 

240.00 

44.00 

34.00 

$578.00 

Jon D. Bo tz "- _, 

.Administrative Law Ju 

Distribution: 

Allen Reid Tilson, Esq, 

Office of the Solicitor 

United States Department of Labor 

555 Griffin Square, Suite 501 

Dallas, Texas 75202 

Mr. Billy D. Thomas, President 

Sierra Blanca Milling & Processing Company 

Box 2943 

Ruidoso, New Mexico 88345 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

MASSEY SAND AND ROCK COMPANY, 

Respondent, 

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Appearances: 

JEB 2 1982 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-94-M 

A/C No. 04-10854-05003 

MINE: Indio Pit & Mill 

Linda R. Bytof, Esq., Office of Daniel W. Teehan, Regional Solicitor, 

United States Department of Labor, San Francisco, California 

Jack L. Corkill, Esq, 

Indio, California 

For the Petitioner 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

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

Administration, (MSHA), charges respondent Massey Sand and Rock Company~ 

(Massey), with a violation of 29 C.F.R. 56.11-1, }_/ a regulation 

adopted under the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq. 

Respondent denies that a violation occurred and further contests the-ap--~ 

propriateness of the penalty. 

After notice to the parties a hearing on the merits was held in Indio, 

California. 

1/ The cited regulation provides as follows: 

§ 56.11 Travelways, 56.11-1 Mandatory. Safe means of access shall be 

provided and maintained to all work places. 

188 
ISSUES 

The issues are whether 30 C.F.R. 56.11-1 is unduly vague and thereby 

violates constitutional due process. Further, did a violation occur, atid 

if a violation is found, what penalty, if any, is appropriate. 

FINDINGS OF FACT 

1. In April, 1979, Randall Thompson was employed by Massey as a 

mechanic welder and loader operator (Tr. 9). 

2. Thompson's duties included servicing equipment and routine maintenance (Tr. 10). 

3, His duties also involved greasing the head pulley above the sand 

silo. 

4. The head pulley is 35 to 40 feet above the ground (Tr, 15), 

5. On April 27~ 1979~ as he had on other occasions, Thompson walked 

up the conveyor belt to reach the head pulley (Tr. 15-18), 

6. There was no walkway, handrail, ladder, or work platform (Tr, 

16-17, Exhibit R-u). 

7. As he began to grease the head pulley the conveyor started and 

threw him into the bottom of the silo (Tr, 15, 22), 

8. Thompson had never been told not to climb the conveyor belt (Tr. 

18-19). 

9. Massey abated by installing a ladder to reach a work platform 

equipped with handrails (Tr. 42, 149). 

10. In January 1979, prior to Thompson's fall an MSHA inspector 

discussed workers climbing conveyors. The inspector indicated a crane and 

cage could be used to provide safe access if the cage itself complied with 

MSHA regulations (Tr. 142, Exhibit P-3). 

11. Massey has safety programs and frequent tool box safety meetings 

(Tr. 110, Exhibit Rl-RS). 

12. All .of Massey's other conveyors have work platforms at the head 

pulleys. These platforms can be reached by ladder or stairway (Tr. 22), 

DISCUSSION 

The threshold question is whether the regulation in issue can 

withstand respondent's attack of vagueness. 

A statute which either forbids or requires the doing of an act in 

terms so vague that men of common intelligence must necessarily guess at 

its meaning and differ as to its application violates the first essential 

189 
of due process of law. Connally v. General Construction Co., 269 U.S. 

385, 391 ( 1925). This principle of law also applies to industrial and 

connnercial safety standards that can result in the imposition of civil 

penalties for their violation. Cf Brennan v. OSHRC, SOS F. 2d 869, 872 

(10th Cir. 1974); Diebold, Inc. V-: Marshall, 585 F. 2d 1327, 1335-1336, 

(6th Cir. 1978); Longview Refining Co. v. Shore, 554 F. 2d' 1006, 1114 

(Temp Emer., Ct. App. 1977), cert denied 434, U.S. 836 (1977). 

In deciding whether a safety standard satisfies the principle of due 

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

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

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

(1963). 

The appellate courts have considered the vagueness argument in 

connection with regulations promulgated under the Occupational Safety and 

Health Act (OSHA), 29 U.S.C. 651 ~seq. 

·One line of cases dealing with the personal equipment ions have 

applied an objective 11 reasonable 11 test. That is, whether a reasonably 

prudent person familiar with the circumstances of the industry would have 

protected against the hazard. American Airlines, Inc. v. Secretary of 

Labor 578 F. 2d 38, (2nd Cir. 1978); Voegele Co. v. OSHRC 625 F. 2d 1075, 

1079 (3rd Cir, 1980); Bristol Steel & Iron Works, Inc. v. OSHRD, 601 F. 2d 

717 1 723 (4th Cir. 1979) Ray Evers Welding Co. v. OSHRC, supra, 625 F, 2d 

at 731-732; Arkansas Best Freight's System Inc. v. OSHRC 529 F. 2d 649$ 655 

(8th Cir. 1976); Brennan v. Smoke Craft, Inc., 530 F. 2d 843, 845 (9th Cir, 

1976). The First Circuit explained that "knowledge of the existence of a 

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

an industry, but that the extent of precautions to take against· a known 

hazard is that which a conscientious safety expert would take" General 

Dynamics v. OSHRC, 599 F. 2d 453;464 (1st Cir. 1979). 

On the other hand, the Fifth Circuit, by contrast, has linked the 

reasonableness standard to the custom and practice of the industry. In 

Ryder Truck Lines, Inc. v. Brennan 497 F. 2d 230, 233 (5th Cir. 1974) the 

Court said the general industry safety standard was not unconstitutionally 

vague as loQg as it "affords a reasonable warning of the proscribed conduct 

in the light of common understanding and practices", B & B Insulation, 

Inc. v. OSHRC 583 F. 2d 1364 (5th Cir. 1978). See also Cotter & Company v. 

OSHRC 598 F. 2d 911 (5th Cir. 1979); Power Plant Division, Brown & Root, 

Inc. v. OSHRC 590 F. 2d 1363 (5th Cir. 1979). 

The other circuits have not followed the Fifth Circuit in limiting 

reasonableness to the custom and practice of the industry because, as the 

First Circuit explained, such a ruling "would allow an entire industry to 

avoid liability by maintaining inadequate safety training." General 

Dynamics supra. supra 2d at 464, accord Voegele Co., supra at 1078. The 

190 
Sixth Circuit said that industry standards and customs should not be 

determinative of reasonableness because there may be instances where a 

whole industry has been negligent in providing safety equipment for its 

employees" Ray Evers Welding, supra at 732. 

Under either line of cases Massey cannot complain that the regulation 

is vague. The photographs show that Massey maintains an extensive conveyor 

system (Exhibit R-6, photographs 2 and 3). All of Massey's conveyors, with 

the single exception of where Thompson was injured, have work platforms at 

the head pulleys. The platforms are reached by ladder or stairways. From 

these facts I conclude that Massey, as its own consc ious safety expert 

recognized the hazard by providing work platforms for all but one head 

pulley. 

Massey's post trial brief argues that MSHA regulations do not prohibit 

its employee from walking on the conveyor belt. Masseyis argument 

overlooks the thrust of the regulation. The regulation requires safe 

access to all working place. One method of safe access could be the 

installation of a ladder, and a work platform with handrails, Another 

method of safe access could have been the use of the crane and man cage, 

In this case Massey abated with the former and failed in the proof of the 

latter. 

The cases cited by Massey are not inopposite this In ana 

Vineyard Division of New Bedford Gas v. OSHRC 512 F. 2d 1148 (1st 

1975) the Court stated: 11 an appropriate test whether a reasonable 

prudent man familiar with the circumstances of the industry would have 

protected against the hazard." As previously stated here Massey recognized 

the hazard. 

In Diebold, Incorporated v. Marshall, 585 F. 2d 1327 (6th Cir. 1977), 

the Court held that a point of operation guarding of power presses was 

properly applied to press brakes. However, the Court would only apply the 

standard in the future. This was based on the view that a portion of the 

standard was unartfully drafted, that there was a connnon industry understanding regarding the guarding of press brakes, and that there was 

administrative enforcement indicating that the safety regulation was 

inapplicable to press brakes. None of the above situations obtain here. 

The standard is clear and concise. There is no connnon industry 

understanding that work platforms should not be provided, Further, there 

is no showing that MSHA ever considered the regulation inapplicable. 

In Kent Nowlin Construction v. OSHRC 593 F. 2d 368 (10th Cir. 1979) 

the Court reversed the finding of a violation of 29 C.F.R. 1926. 652(h) 

The Court ruled that Kent Nowlin "should not be penalized for deviating 

from a standard the interpretation of which, in relation to kindred 

standards cannot be agreed upon by those responsible for compelling 

compliance with it and with oversight of the procedures for its enforcement." 

191 
The fact that Massey provided work platforms at all other of its head 

pulleys which were reached by ladder or stairways would clearly indicate 

that the cited doctrine is inapplicable. Massey's also relies on Fleutic 

v. Rosenberg 302 F. 2d 652 (9th ~ir. 1962); Jordan v. DeGeorge 341 U.S. 223 

(1951); and Rodine-Becker Co. Docket No. 75-651 but those cases are not 

applicable to these facts. 

CIVIL PENALTY 

Section 110 of the Act, (30 U.S.C. 820(i)), provides as follows: 

(i) The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Commission shall consider the operator's history 

of previous violations, the appropriateness of such penalty to 

the size of the business of the operator charged, whether the 

operator was negligent, the effect on the operator 1 s ability 

to continue in business, the gravity of the violation, and the 

demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. In 

proposing civil penalties under this Act, the Secretary may rely 

upon a surnmary review of the information available to him and 

shall not be required to make findings of fact concerning the 

above factors. 

Concerning the Massey's history; there have been four violations in 

the previous 24 months (Tr. 4). Massey is a small to medium size operator: 

the company operates 40,098 man hours per year. The Indio pit and mill 

operates 18,250 man hours per year (Tr. 4). The assessment of a penalty 

will not affect Massey's ability to continue in business (Tr. 4). 

The company was negligent since the lack of a work platform was 

apparent. The gravity of the violation was severe since an employee was 

working in an unguarded position at the head pulley 35 to 40 feet above the 

ground. Massey rapidly complied and installed the necessary.platform and 

safe access. 

The Secretary proposed a special assessment of $2,500.00 (Exhibit 

P-2). I disagree. The Secretary's proposal overly concentrates on the 

gravity of the violation. The remaining favorable statutory criteria 

cannot. be ignored. Considering the statutory criteria I assess a civil 

penalty of $500.00. 

192 
Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

1. Citation 379052 is affirmed. 

2. A civil penalty of $500.00 is assessed. 

Distribution: 

Linda R. Bytof, Esq. 

Office of the Solicitor 

. United States Department of Labor 

11071 Federal Building, Box 36017 

450 Golden Gate Avenue 

San Francisco, balifornia 94102 

Jack Corkill, Esq~ 

43-850 Monroe Street 

Indio, California 92201 

193 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 602.04 

COLORADO WESTMORELAND, INC., 

Contestant, 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

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DECISION 

Appearances: 

FEB 2 1982 

CONTEST OF CITATION PROCEEDINGS 

DOCKET NO. WEST 81-240-R 

Citation No. 789250 

DOCKET NO. WEST 81-241-R 

Citation No. 789251 

(Consolidated) 

MINE: Orchard Valley 

'Charles W. Newcom, Esq.~ Sherman & Howardi 2900 First of Denver Plaza 

633 Seventeenth Street, Denveri Colorado 80202 

For the Contestant 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

For the Respondent. 

Before: Judge John A. Carlson 

STATEMENT OF THE CASE 

These consolidated cases, heard under the provisions of the Federal 

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

arose from an inspection of contestant's underground-Coal mine. The 

Secretary of Labor's inspector issued two citations alleging violations of 

contestant's (Westmoreland's) approved roof control plan. The standard 

published at 30 C.F.R. § 75.200, requires compliance with such a plan. The 

violations were designated "unwarrantable" under section 104(d)(l) of the 

Act, and the second citation was coupled with a withdrawal order under 

section 104(d). 

Westmoreland duly contested the citations and the order and a full 

hearing on the merits was had. No jurisdictional issues were raised. 

Extensive post-hearing briefs were filed by both parties. 

194 
SUMMARY AND DISCUSSION OF 

THE EVIDENCE 

CITATION 789250 - DOCKET NO. WEST 81-240-R 

The Secretary's inspector made. his .inspection on April 15, 1981. The 

approved roof control plan (joint exhibit 1) requires that entry widths be 

cut to 20 feet or less, and that roof bolts be installed on 5 by 5 foot 

centers. It also provides that where" .•• the distance between outer bolts 

and the rib exceeds five feet, additional bolts or timbers will be installed." JJ 

Westmoreland witnesses did not dispute the inspector's testimony that 

the entryway between rooms 7 and 8 measured approximately 26 feet wide at 

its widest point at the time of inspection. Witnesses for both parties 

agreed that rib sloughage had occurred. Beyond that point, however 9 

witnesses for the two parties differed sharply on most material facts • 

. The inspector insisted, first of all, that the roof control plan 

requires that "roadways" be 20 feet or less in width. Westmoreland 

correctly contends, however, that the plan contains no such injunction. It 

requires only that entryways (which may also serve as haulageways) may not 

be cut to a width greater than 20 feet. Although the citation was written 

in.terms of a 11 roadway11 violation the inspector ultimately acknowledged 

that the plan speaks only to the width of the original cut (Tr. 37 0 38), 

The essence of Westmoreland' s de·fense is this: that all cuts were 

within the prescribed 20 foot limits, but that on the morning of the 

inspection a phenomenon known as "bounce" caused a sudden sloughage from 

the ribs and a consequent widening of the entry area; and that miners were 

already at work setting additional timber along both sides of the area in 

question when the inspector arrived. 

1/ The pertinent part of the citation reads: 

The approved roof control plan was not complied with in the 8 crosscut, the numbers 7 and 8 rooms of 5 east pillar section as 

the width of the entries measured from 25 to 30 feet and additional support such as posts were not installed to limit the 

roadway to 20 feet~ and in the entrance the number 8 room the 

distance from the last roof bolt to the rib measured in excess of 10 feet. 

195 
Thus, throughout the hearing wit~esses addressed much of their 

testimony to the questions of when and how the admitted sloughage occurred, 

when the operator took steps to correct it, and what those steps were. 

Westmoreland's section foreman claimed that timbering was already in 

progress at the end of the previous shift at a point near room 7, and that 

timbers were set near the ribs as a routine precaution against rib sloughage (Tr. 81). He maintained that he put two men to work continuing the 

timbering with the beginning of the morning shift; and that at 7:15 a.m. he 

had measured the width of the entryway and found it to be 18 feet. 

According to this witness, a severe "bounce" or sudden shifting of the mine 

strata, occurred early in the shift, causing extensive rib sloughage 

between rooms ·7 and 8 and widening the roof (Tr. 62-63). A second bounce, 

shortly thereafter, caused more sloughage. The bounc , he claimed, was 

also severe enough to knock down the tubing between the 7th and 8th 

crosscuts (Tr. 63). 

The inspector, however, was convinced that the sloughage was the 

product of a gradual process (squeeze or heave) (Tr. 4~-49 1 145-146), He 

based this opinion on his general experience in underground mining coupled 

with specific expertise gained from tutelage under a now-retired inspector 

who was an acknowledged MSHA authority on bouncing. Bouncing was unlikely, 

he said~ at depths above 1,500 feet (the area in question here was 700'); 

and was also unlikely except in proximity to the face. Moreover~ the size 

of the coal pieces were too large to be typical of bounce. 

Westmoreland points out, however, that the inspector had paid but few 

visits to this particular mine, and that all of its witnesses substantiated the sect-ion foreman 1 s claims. Two roof bolters and the underground 

supervisor testified that bouncing, an almost daily phenomenon in the mine, 

had indeed occurred that morning. These witnesses and the operator's 

safety coordinator further pointed to rock dust as evidence of the abrupt 

and recent character of the sloughage. The undisputed evidence established 

that the ribs, roof and faces had been fully rock dusted at the end of the 

previous shift. Had the sloughage occurred gradually over a period of 

several days, as the inspector inferred, sloughed materials would have been 

dust-covered. The inspector made no effort to contradict the uniform 

testimony of Westmoreland's employees that all sloughage areas on the 

morning of the inspection were dust-free. 

I am convinced that the sloughage occurred in the way described by the 

operator -- abruptly on the morning of the inspection. The direct evidence 

of Westmoreland's several employees 1s far more persuasive than the 

inferences drawn by the inspector. 

It is nevertheless true, of course, that when the inspector arrived 

the area betwe2n rooms 7 and 8 was not in compliance with the literal 

requirements of the roof control plan. The roof was too wide and was not 

yet supported. Does this, without more, signify violation? Given all the 

196 
circumstances, I think not. Read in its entirety, the roof control plan 

appears to contemplate situations where mined areas widen owing to natural 

causes beyond the operator's control. At page 17 for example, it provides: 

Where pillar corners have sloughed off ~xcessively, more than .five feet from the 

nearest support, they will be supported with 

additional bolts or timber posts. 

This implies, certainly, that the operator has a reasonable time in 

which to correct roof support deficiencies arising from sloughage. 

Generally, under the Act, operators may not successfully defend 

against a violation of a mandatory standard on the basis that it occurred 

without negligence or fault. United States Steel Corp, I FMSHRC 1306 

(1979); Heldenfels Brothers, Inc. 2 FMSHRC 851 (1980)~ aff'd 636 F. 2d 312 

(5th Cir. 198li unpublished), 

That general rule cannot apply here, however, The standard demands 

compliance with the roof control plan; but the plan itself contemplates 

remedial measures for sloughage. It would follow, then, that if the 

operator takes those measures, and does so with dispatch and in conformity 

with procedures established elsewhere in the standards for setting of 

additional supports and for cleaning up rib sloughage 1 no liabili 

ensues. 

I would view the matter differently had Westmoreland been dilatory or 

had it proved indifferent to the hazards resulting from the sudden creation 

of unsupported roof areas. The credible evidence shows, however, that 

after the bounce no mining occurred ~n or beyond the sloughage area and 

crews set to work quickly to clean up the loose material from the floor and 

to set additional supports.I/ Also, the record allows no inference 

that the means used to remove the sloughage and set the additional timber 

did not accord with other parts of the plan which dictate safe and 

acceptable procedures for those tasks. (See, for example, page lOA, Roof 

Control Plan). On the contrary, the inspector acknowledge that no one was 

working under an unsupported top (Tr. 21). 

Accordingly, the evidence does not show a failure by Westmoreland to 

2/ Subsequent discussion in connection with citation 789251 will show that 

bolters were in room 8 during a part of the time in question, but they, 

too, were engaged solely in roof support activities. 

197 
comply with its roof control plan. Citation 789250 should therefore be 

vacated. ]../ 

CITATION 789251 - DOCKET NO. WEST 81-241-R 

Later the same morning the inspector issued his second citation which 

he coupled with a withdrawal order under Section 104(d)(l).4/ This 

citation and order concern alleged conditions and miners' conduct in room 

8 immediately located around the corner, so to speak, from the entryway 

discussed earlier. According to the inspector, the outer edges of the 11T11 

bars (the ATRS System) which furnished temporary protect ion to roof bolting 

personnel while bolting was in progress were more than 5 feet from the ribs 

of the room. Thus, under the terms of the roof control plan, no one could 

be under the unsupported portion of the roof between those outer edges and 

the rib. Westmoreland's witnesses did not dispute that the measured 

distances between the rib and the outer edges of support system were 

approximately nine feet to ten feet (Tr. 31). 

·These witnesses sharply challenged the inspector is testimony, however 

that he saw the two roof bolters standing outside the protection furnished 

by the machine. According to the operator's witnesses, the bouncing which 

affected the entryway width had also widened room 8, leaving sloughage, and 

causing them to clean up the outer corner of the room before the bolter 

could be positioned in the room. A subsequent bounce caused them to pull 

the bolter out because of additional sloughage. According to both members 

3/ As the testimony went forward, the inspector stressed the unsupported 

Ticorner 0 of the entryway which the subject of citation 789250 and room 8, 

which is the subject of citation 789251. The inspector appeared unclear as 

to which citation covered the corner. It appears to be mentioned in both 

citations. For the purposes of this decision it makes little difference, 

but I specifically hold that the unsupported area on the corner was more 

properly covered in the initial citation since additional timbers were 

installed there rather than additional bolts (Tr. 96, 115-117). This was 

the method of correction selected by the operator for the areas between 

rooms 7 and 8. 

4/ As pertinent, the citation and withdrawal order read: 

The approved roof control plan was not complied with in the No. 8 roof 

of the 5th east sect ion as Larry West and Larry Rogers, roof bolters, were 

observed installing roof bolts to the left and right of the outer contact 

point of the ATRS system was [sic] 9 feet and 10 feet to the rib, and 

temporary roof supports were not install~d, the entry width was 27 feet. 

Th.e No. 8 roof where roof bolting was being done, [Technically this second 

action may be classifiable simply as a withdrawal order, but is described 

in this decision as a citation since the parties routinely referred to it 

as such in the pleadings, trial and briefs•] 

198 
of the bolting crew, they had positioned the machine and were beginning to 

drill and place the first center bolts when the inspector first appeared at 

room 8. Both men emphatically denied being anywhere but under the ATRS 

system (Tr. 121, 126, 130). According to the bolters, had they not been 

interrupted by the inspector, they would have installed the center bolts, 

would then have backed the machine, moved it back in at a different angle, 

and then proceeded to set the outer bolts on one side. This procedure 

would have been repeated to bolt the other side. The two men admitted that 

they could have swung the booms on the bolter out beyond the protection of 

the ATRS to bolt nearer the rib, but asserted they did not do so. They 

maintained that that procedure was never followed if the distance between 

the edge of the ATRS and the rib line exceeded five feet (Tr. 128, 136). 

Westmoreland'i safety coordinator and its underground supervisor, both of 

whom were present during this phase of the inspect ion, claimed that neither 

bolter stepped outside the ATRS system (Tr. 88, 98). The second of these 

witnesses also stated that neither during the inspection nor the closing 

conference did the inspector mention that bolters were beyond the 

protection of the ATRS. 

The only issue here is whether the bolters~ or either of them, were 

outside the protection afforded by the ATRS system • .2/ For the reasons 

which follow, I hold they were not. First, I am somewhat impressed by the 

uniformity of the testimony of the four Westmoreland witnesses on this 

issue, Ordinarily, the testimony of that many witnesses will reveal some 

inconsistency. Of far greater importance$ however were certain weaknesses 

in the inspector's testimony. 

The inspector testified with particularity concerning where he saw the 

two bolters, marking their positions on exhibit 3, and claiming with 

certitude that both were standing on the mine floor while operating the 

bolter (Tr. 147, 154-156). That all of the operator's witnesses testified 

to the contrary does not necessarily carry the day for Westmoreland; 

credibility may not be measured by a mere witness count. The content of 

5/ At one point the inspector testified that he should have issued two 

citations: one for the breadth of the unsupported roof, another for the 

presence of the men outside the ATRS (Tr. 30). During the inspection he 

required that the men leave the machine and set temporary supports (Tr. 

30). But he later clarified his position, stating that no violation would 

have occurred had the men remained under the ATRS (Tr. 52-54). 

199 
the bolters testimony:, however, throws substantial doubt upon the accuracy 

of the inspector's observations. The design of the machine, they claimed, 

does not permit its operation from floor level because the boom controls 

are mounted too high. Rather, bolting operators must stand in boxes or 

cages mounted on the booms, since these boxes contain all controls and 

cannot be reached from floor level (Tr. 127, 128, 163). Westmoreland's 

underground supervisor likewise insisted that ground operation was 

impossible with this machine (Tr. 159). I believe it unlikely that these 

witnesses would have testified untruthfully on so easily verifiable a 

matter. I consequently accept Westmoreland's version of the facts and find 

the inspector was mistaken. The bolters were within the protection of the 

ATRS system, and no violation occurred. Citation 789251 and the accompanying withdrawal order will therefore be vacated. 

ORDER 

In accordance with the findings and conclusions contained in the 

narrative portion of this dee ion: 

. (1). Citation 789250 docketed as WEST 81-240-R is ORDERED vacated 

(2). Citation and withdrawal order 789251 docketed as WEST 81-241-R 

is ORDERED vacated, and 

(3) These consolidated proceedings are smissed. 

Carlson 

Administrative Law Judge 

Distribution: 

Charles W. Newcom, Esq. 

Sherman & How·ard 

2900 First of Denver Plaza 

633 Seventeenth Street 

Denver, Colorado 80202 

Robert J. Le$nick, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

200 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE I.AW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 3 1982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ERNIE BROCK, 

Respondent 

Docket No. KENT 81-192 

A.O. No. 15-05120-03027A 

Ken No. 4 North Mine 

ORDER DISMISSING PROCEEDING 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty 

filed by the petitioner against the respondent on September 22, 1981, 

pursuant to section llO(c) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. 820(c). The proposal seeks a civil penalty assessment 

in the amount of $300 against the respondent for an alleged violation 

of mandatory safety standard 30 CFR 75.200. 1/ The alleged violation 

is based on certain conditions and practices-detailed in an imminent 

danger order no. 0795972 issued pursuant to section 107(a) - 104(a) 

of the Act on May 21, 1979. The order was issued to Peabody Coal 

Company for the alleged violation which petitioner asserts took place 

at the above captioned mine, and petitioner asserts that the named 

respondent in this case was employed at the mine as a foreman. Petitioner 

further alleges that on or about May 21, 1979, and for a period of 

approximately one week prior thereto, respondent, acting as an agent 

of Peabody Coal Company, knowingly authorized, ordered, or carried out 

Peabody's violation of the cited section(s). 

Respondent filed his answer to the proposal on October 7, 1981, 

denying any violation of section llO(c) on his part. He does admit 

to the fact that the mine is subject to the Act, that he was employed 

lf Although the proposal filed by the petitioner makes reference to 

section 75.200, a copy of the supporting citation attached to petitioner's 

proposal reflects that the "part and section" cited by the inspector 

was changed from section 75.200 to section 75.202. 

201 
as a mine foreman at the time the citation issued, and does not dispute 

the fact that the citation was issued and served on Peabody Coal Company. 

Motion to dismiss 

By motion filed January 20, 1982, respondent's counsel moves for a 

dismissal of this case on the grounds that the respondent has been 

prejudiced by the extreme delay between the time the citation was issued 

on May 21, 1979, and the service of MSHA's proposed civil penalty assessment 

on the respondent on July 20, 1981. In support of the motion to dismiss, 

counsel states that after the citation was issued, Peabody Co.al Company 

filed an application for review of the citation and an expedited hearing 

was held on this application on June 13-14, 1979. Counsel further states 

that respondent Brock testified in Peabody's behalf at the hearing, and 

while Peabody was represented by counsel, respondent Brock was not 

as he had not been charged with any violation, Since Mr, Brock testified 

to the events surrounding the issuance of the citation, counsel maintains 

that his participation in those events has been well-known to MSHA 

since at least June 13-14, 1979. 

In further support of his motion, respondent 1 s counsel points to 

the fact that when MSHA served its proposed assessment on the respondent 

July 20, 1981, more than two years had passed since the citation was 

issued and since the hearing where all the facts surrounding the event 

in question were laid open to MSHA. Since it is now January, 1982, 

some three years after the citation issued, counsel asserts that MSHAis 

delay in bringing this case is completely inexcusable and inherently 

prejudicial to the respondent. 

In support of the claim of prejudice, respondent's counsel states 

that the Ken No. 4 North Mine last produced coal on October 12, 1979. 

Its entrance has been sealed since November 19, 1979. All reclamation 

activities associated with this mine, including covering the mine entrance 

with earthen material, has been concluded since January, 1980, and not 

until a year and a half following closure and sealing of this mine had 

passed did MSHA propose to assess a penalty against respondent Brock. 

The sealing of the mine is supported by an affidavit by Peabody's VicePresident of Underground Operations, Eastern Division, Henderson, Kentucky. 

With regard to the instant case filed against the respondent Brock, 

counsel states that the condition of the roof in the mine in question 

would be the central issue to be resolved in this penalty proceeding. 

Since the mine is available to no one, and since the evidence "has long 

been literally covered up", counsel maintains that a proper defense 

cannot be prepared on respondent Brock's behalf, and he attributes 

this to MSHA's excessive delay in bringing this case. Counsel maintains 

that the prejudice test established by the Commission in Secretary of Labor 

v. Salt Lake County Road Department, Docket No. WEST 79-365-M (July 28, 1981) 

and reiterated in Secretary of Labor v. The Anaconda Company, Docket No. 

WEST 81-94-M (August 13, 1981), is well met in the instant case, and that 

MSHA's delay is in blatant disregard of the "reasonable notice" provisions of the Act and respondent Brock has been prejudiced thereby. 
On January 26, 1982, petitioner filed a response to the motion to 

dismiss. Petitioner does not concede that its delay has been unreasonable, 

and it opposes respondent's motion to dismiss. However, petitioner states 

that it has determined that there is insufficient evidence to prove its 

case and moves for an order approving withdrawal of its civil penalty 

proposal. 

Petitioner's motion to withdraw its proposal for assessment of 

civil penalty on the ground that there is insufficient evidence to 

prove its case is DENIED. The matter concerning the sufficiency of 

evidence is a judgment that petitioner should have made before filing 

its case in the first place and before subjecting the respondent to a 

prosecution under section llO(c). 

Respondent's motion to dismiss on the ground that MSHA's delay 

has prejudiced his opportunity to reasonably prepare and present a 

defense is GRANTED, and this case IS DISMISSED WITH PREJUDICE. 

Distribution: 

E. Robert Goebel, Esq., 233 St. Ann St., Owensboro, KY 42301 (Certified Mail) 

J. Philip Smith, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Harold West, UMWA, 417 3rd St., Beaver Dam, KY 42320 (Certified Mail) 

203 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 3 1982 

SECRETARY OF LABOR, Complaint of Discharge, 

Discrimination, or Interference 

On behalf of 

JOHN GRIFFIN, 

v. 

Docket No. LAKE 81-159-D 

Complainant 

Baldwin No. 1 Hine 

PEABODY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Miguel J. Carmona, •sand Thomas P. Piliero, Esq., 

Office of the Solicitor, U.S. Department of Labor, for 

Complainant; 

Thomas R. Gallagher, Esq., St. Louis, Missouri, for 

Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This case involves a claim by John Griff in, an employee of 

Respondent, that he was suspended for 3 days without pay for an 

incident on December 20, 1980, which he alleges was activity protected 

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 ~~· The case was heard in St. Louis, Missouri on October 20, 

1981 and in Falls Church, Virginia on December 15, 1981. John Griffin, 

William Pillers, Leonard Krantz, Doug Rushing, Daniel Seiver and Arthur 

Grigg testified for Complainant; John Laughland, John Hull, Martin 

Sommer, Darryl Kirkman and Thomas Zweigart testified for Respondent. 

Both parties have filed posthearing briefs. Having considered the 

record and the contentions of the parties, I make the following 

decision: 

FINDINGS OF FACT 

1. Complainant John Griffin was at all times pertinent to this 

proceeding employed by Respondent as a miner, more specifically as a 

repairman. 

204 
2. On December 20, 1980, Thomas Zweigart section foreman asked 

Chief Electrician Darryl Kirkman for a repairman to work on his unit. 

3. John Griffin was assigned to work with Zweigart's unit. Upon 

receiving the assignment, he passed a remark indicating that he 

intended to disrupt activities in Zweigart's unit. 

4. Griffin rode in a mantrip to the face area with the unit crew. 

5. The area had been heavily rock dusted before the crew arrived, 

and considerable dust remained in the air. 

6. After foreman Zweigart checked the face areas, the crew went 

up to the faces where the air was relatively clear. Zweigart decided 

to ventilate the section and purge it from dust and at the same time 

move the continuous miner into the next room to get it ready for 

producing coal. 

7. In order to e the miner, instructed Griffin to 

turn the power on to the unit. It was customary for the repairman 

assigned to a production unit to turn on the power. 

8. Griffin refused to turn on the power stating that it wasnvt 

safe because of the dust. He later stated that the dust made it 

impossible for him to inspect the cables which he felt should be done 

before energizing the unit. 

9. In the mine in question it was not customary for the repairman 

to inspect the cables before turning on the power to the unit. Each 

equipment operator inspected the cable to his own piece of equipment 

and notified the repairman of any defects. 

10. Griffin later stated that the dust concentration made it 

difficult to breathe and unhealthy to walk to the transformer to turn 

on the power. 

11. Foreman Zweigart then ordered Griffin to turn on the power 

and when he refused, Zweigart called the mine manager, John Laughland. 

Laughland asked about the dust and instructed Zweigart to order Griff in 

again to turn on the power. T:Jhen he refused, Laughland instructed 

Zweigart to have Griff in removed from the mine and turn on the power 

himself, which Zweigart did. 

12. The Mine Superintendent John Hull was informed of the 

incident and he prepared a written 5-day suspension with intent to 

discharge. Hull and Laughland met Griffin inside the mine. Griffin 

admitted that he was wrong and that he should have turned on the 

power. He requested that the disciplinary action be reduced to a 

3-day suspension. Because he admitted his error, Hull changed the 

letter to show a 3-day suspension. 

205 
ISSUES 

1. Was Complainant suspended for activity protected under 

section 105(c) of the Act? 

2. If the answer to the previous question is in the affirmative, 

what remedy should be awarded? 

DISCUSSION WITH CONCLUSIONS OF LAW 

In the case of Fasula v. Consolidation Coal Company, 2 FMSHRC 

2786, 2 BNA MSHC 1001, the Commission held that refusal to work in 

conditions believed to be unsafe or unhealthful is protected activity 

under the Act. It further held that a prima facie case of a violation 

of section 105(c)(l) is made out if it is shown that the adverse action 

complained of was motivated in any part by the protected activityo 

The employer may affirmatively defend by showing that he would have 

taken the adverse action for unprotected activity alone. In the case 

of Robinette Vo United Castle Coal Company, 3 FMSHRC 803 9 812 9 

2 BNA MSHC 1213, it was further held that refusal to work is protected 

if the miner "ha[s] a good faith, reasonable belief in a hazardous 

condition.u 

The record here shows that there was excessive rock dust in the 

air at the time and place involved in this case. It further shows 0 

however, that the section foreman did not intend to begin production 

prior to clearing the air. He ordered the power turned on in order 

to move the miner and intended to clear the air and ventilate the 

unit while the miner was being readied. 

Based on all of the testimony, I conclude that Complainant did 

not refuse to perform work because of a good faith belief that doing 

so threatened his health or safety. I find that the reason Complainant 

gave for his refusal was in fact a sham. My conclusion is based on 

my observing Complainant's demeanor on the witness stand as well as 

the answers he gave. I credit the testimony of Martin Sonuner and 

Darryl Kirkman concerning Complainant's remarks when he was assigned 

to the section. I generally credit the testimony of John Hull and 

John Laughland concerning the issuance of the disciplinary suspension, 

and decline to credit Complainant's version of this occurrence. I 

conclude that Complainant deliberately attempted to disrupt the 

activities of the section in the hope that he might obtain time off. 

The dust in the atmosphere and its alleged relation to health and 

safety was used as a pretext. 

Since a good faith believe in the existence of a health or safety 

hazard is required to find protected activity, it is unnecessary to 

discuss other aspects of the Pasula test. 

206 
I conclude that Complainant's suspension did not result from 

activity protected under the Mine Safety and Health Act. 

ORDER 

Based upon the above findings of fact and conclusions of law, 

the above proc_eeding is DISMISSED. 

j '(l4t1iLS A/Jwdn~ James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Miguel J. Carmona, Esq.~ Office of the Solicitor~ U.S. Department of 

Labor, 230 South Dearborn Street, Chicago, IL 60604 

Thomas R. Gallagher, Attorney for Respondent 9 P.O. Box 235, 

St. Louis, MO 63166 

Mr. John Griffin, 6 East Kaskaskia, Pinchneyville, IL 62274 

Thomas A. Mascolino, Esq.~ Counsel for Trial Litigation, Office of 

the Solicitor, Division of Mine Safety, U.S. Department of Labor 0 

4015 Wilson Blvd., Arlington, VA 22203 

207 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 3 1982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

YOUNGSTOWN MINES CORP., 

Respondent 

Docket No. WEVA 81-379 

A.O. No. 46-01397-03098V 

DeHue Mine 

DECISION 

Appearances: David Bush, Attorney, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the petitioner; Roger S. Matthews~ 

Esquire, Pittsburgh, Pennsylvania, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

The proceeding concerns a proposal for assessment of civil penalty 

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), 

charging the respondent with one alleged violation of mandatory safety 

standard 30 CFR 75.400. Respondent filed a timely answer in the 

proceedings and a hearing regarding the petitions was held on November 17, 

1981, in Charleston, West Virginia, and the parties appeared and 

participated therein. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing regulation 

as alleged in the proposal for assessment of civil penalty filed in ·this 

proceeding, and, if so, (2) the appropriate civil penalty that should be 

assessed against the respondent for the alleged violation based upon 

the criteria set forth in section llO(i) of the Act. Additional issues 

raised by the parties are identified and disposed of in the course,of 

this decision. 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

208 
(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) 

whether the operator was negligent, (4) the effect on the operator's 

ability to continue in business, (5) the gravity of the violation, 

and (6) the demonstrated good faith of the operator in attempting to 

achieve rapid compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

30 U.S.C. § 801 et~· 

2. Section llO(i) of the 1077 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 CFR 2700.1 et ~· 

The parties stipulated to the following: 

1. Respondent Youngstown Mines Corporation owns and operates 

the mine in question. 

2. Respondent is engaged in the business of extracting coal. 

3. The inspector who issued the citation in this case is a 

duly authorized representative of the Secretary of Labor. 

4. The DeHue Mine is subject to the provisions of the 1977 

Federal Mine Safety and Health Act. 

5. The presiding administrative law judge has jurisdiction 

to hear and decide this case. 

6. The citation at issue in this case was duly served on a 

representative of the respondent and it may be admitted in 

evidence. 

7. An appropriate civil penalty in this case will not adversely 

affect respondent's ability to remain in business. 

8. Respondent's 1980 annual coal production was 259,001 tons. 

9. Respondent's history of prior assessed violations for the 13 month 

period preceding the issuance of the citation in issue in this 

case consists of 501 citations. 

Citation 912344, 8/26/80, 30 CFR 75.400, states as follows: 

209 
Combustible materials coal, coal dust, float dust, oil 

and grease were allowed to accumulate on the 11 CM continuous 

miner and the frames ·and electric apparatus O" inches 4" 

inches in the 1 north west main section. 

Petitioner's Testimony and Evidence 

MSHA Inspector Ernest Mooney, confirmed that he inspected the 

mine in question on August 26, 1980, and issued the citation charging 

the respondent with a violation of mandatory safety standard 75.400. 

He identified copies of the citation, the abatement, and his inspector 1 s 

"narrative statement" which he filled out (Exhibit P-1). He testified 

that the area where the citation issued was an active working section 

and confirmed that he measured the coal accumulations inside the 

continuous miner motor compartment with a standard ruler and that the 

accumulations were "real black". He determined that the miner machine 

was "hot" after opening the compartment and detecting heat coming out 

of it, but he did not touch the hot machine. Section Foreman Cook was 

with him at the time of the inspection, and someone told him that the 

machine had been operated during the immediate previous shift, but he 

could not recall who told him and he took no notes other than to write 

up the citation. 

Inspector Mooney testified that he believed the coal accumulations 

which he cited had accumulated on the machine during previous shifts and 

did not believe that they had "just occurred" shortly before his arrival 

on the scene. The applicable accumulations clean-up plan required clean-up 

"when needed", and he believed that mine management should have been 

aware of the accumulations because each working shift in the mine 

has a shift supervisor present. Although Mr. Mooney stated that the 

section foreman may have informed him that the machine in question may 

have "been down", since he took no notes he could not confirm this fact. 

The citation was abated on August 27, 1980 by another inspector. 

On cross-examination, Inspector Mooney stated that he left the mine 

surface on August 26 at approximately 7:00 a.m., but was underground when 

he issued the citation. The miner machine was backed away from the 

working face and appeared to be located just outby the last open crosscut. 

The face in question was the only working face on the section, and while 

he observed the machine operator at the miner he could not recall what 

he was doing. Although the machine was not energized, power was on the 

trailing cable and the lights were on, but the motor was not running. 

He indicated that the machine has protective shields over the motor 

and cables, and he inspected both sides of the machine and detected 

that the shield on the operator's side of the machine was missing. 

The shields are usually installed on hinges so that they can be readily 

raised to facilitate cleaning and inspection of the motor and cables, but 

he did not know how many shields are required to be on the machine. 

210 
Inspector Mooney testified that he found accumulations of coal and 

coal dust on both sides of the machine, and that on the side opposite 

the operator he found that the coal accumulations were mixed in with 

oil and grease in the motor compartment near the pump motor. He could 

not recall whether anyone said anything to him about any mechanical 

problems with the machine and he made no inquiries as to why the machine 

had been backed away from the fact. The machine was removed from service, 

and he remained on the section. 

Inspector Mooney confirmed that at the time he observed the machine 

coal was not being mined. He indicated that the mine operated on three 

daily 8-hour shifts and that issued the citation on the second shift 

which was from 4 p.m. to 12 midnight. At the time that he issued the 

citation he believed that the miner had been used to mine coal at the 

face during the preceding shift, and he stated that had the operator 

been in the process of cleaning the machine at the time he observed it 

he would not have issued the citation. It was his belief that the machine 

needed cleaning, and that he issued the citation because of the presence 

of the accumulations which he found and the fact that cleaning had not 

been done. (Tr. 15-60), 

Respondent's Testimony and Evidence 

Paul Cook, presently employed by the respondent as an assistant mine 

foreman, testified that at the time the citation was issued by Inspector 

Mooney, he was employed as the section foreman. His previous experience 

with the respondent includes service as a UMWA miner, member of the safety 

department, and section boss. Mr. Cook stated that on the day the citation 

issued he arrived on the section at approximately 4:30 p.m., and that 

the previous shift foreman advised him that the continuous miner which 

was cited by Mr. Mooney had a leaky hydraulic hose on the "off-side". 

The machine was located just outby the last open break, and after checking 

the faces Mr. Cook turned the machine power on to see what the problem 

was. The motor ran for approximately 5 to 10 seconds when he detected 

hydraulic oil spurting out of a two-inch return line which had burst. 

Since the miner could not be operated without any hydraulic oil, he 

assigned the miner operator and his helper to the job of cleaning up the 

miner and he observed one shield missing from the motor panel at the 

location where the hose had burst. Mr. Cook stated that the miner and 

his helper were cleaning the oil accumulations around the motor area so 

that an electrician could have access to the area to change out the 

hose which had broken. 

Mr. Cook testified that after directing that the machine be cleaned 

up he telephoned for a replacement hose for the machine and as he left. 

the area he encountered Inspector Mooney. He informed Mr. Mooney that the 

machine "was down" and Mr. Mooney placed a red closure tag on it. Mr. Cook 

then called outside and ordered that a cleaning machine be brought in 

so that the machine could be cleaned up. He also indicated that the 

machine uses a fire-resistant white emulsion oil which contains 

211 
approximately 40% water and that it is MSHA-approved. Although the 

machine has no fire suppression devices, he stated that none are required 

as long as the fire-resistant oil is used. 

Mr. Cook identified a copy of the section foreman's report (Exhibit R-1) 

which indicates that no coal was being loaded during the shift. He also 

indicated that the mine operates two production shifts and that the third 

shift is a maintenance shift. He confirmed that the miner was shut down 

at 6 p.m., and he indicated that he was aware of the fact that Inspector 

Mooney had issued other citations during his inspection of August 26, 

and that they were all signed as being issued at 7:30 p.m. 

On cross-examination, Mr. Cook identified the previous shift foreman 

as Arlie Bush and he stated that the miner machine in question had not 

operated at the face as of 3:30 p.m. on August 26. Mr. Cook did not 

believe that the machine could have remained "hot" from that time until 

7:30 p.m. when the citation was issued by Mr. Mooney. Mr. Cook conceded 

that the shift report (Exhibit R-1) was filled out after the issuance 

of the citation in question (Tr. 60-95). 

Petitioner recalled Inspector Mooney in rebuttal, and he testified 

that he is familiar with emulsion oil, but saw none sprayed all over 

the miner on the day in question. In response to my questions, he stated 

that he did not know whether the miner machine had a broken hose, and 

at the time he looked into the motor compartment the engine was not 

running. He also indicated that due to the packing of the assumulations 

at a depth of some four inches inside the motor compartment, there is 

no way that a broken miner hose used for one shift could have caused 

those accumulations over that one shift. He also did not believe that 

all of the accumulations inside the machine could have occurred from 

the immediate previous shift. When he first looked into the machine 

and observed the accumulations, the miner operator was present, and after 

he (Mooney) "tagged" the machine, he then encountered Mr. Cook (Tr. 95-100). 

On cross-examination, Mr. Mooney stated that the packed accumulations 

led him to believe that the coal was mixed with oil and that it packed 

in over a period of time. He conceded that he did not use the term 

"packed" or "compacted" in the citation or his inspector's statement. 

He also stated that had he observed only loose coal on the outside of 

the machine which had just been idled he would not issue a citation, but 

if he finds it inside the machine and there is an indication that it has 

accumulated, he would (Tr. 101-102). He explained that the machine in 

question had not accumulated coal over the one shift but that it had 

been left from one shift to another without being cleaned. Under the 

clean-up plan, the machine should be cleaned "as needed" and that 

judgment is made by the section supervisor. In response to bench questions, 

Mr. Mooney summed up the crux of the citation he issued as follows 

(Tr. 103-104): 

212 
JUDGE KOUTRAS: Mr. Mooney, I got the distinct impression 

what your concern was is that you saw evidence that this four inches 

of accumulation that had built up inside on the motor of the 

continuous miner had been a condition that existed for God knows 

how many previous shifts and nobody ever paid any attention to 

it, because it was accumulations of four inches. 

I got the distinct impression from your testimony that 

it had been something that had been built up and built up and 

built up and caked on there combined with oil and what have you 

that made it adhere together and it was caked on there four inches. 

And when Mr. Cook discovered the broken hydraulic hose, he had to 

have his people go in and clean all that stuff off there before 

they could make repairs. 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Is that what it is? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Now, the story I'm getting from Mr. Cook is 

no, that's not the case. The accumulations the inspector was 

talking about are something that just happened from the natural 

cutting action of the machine. "It happens all the time, Judge.iv 

Sure, he measured four inches. We have six inches, we have twelve 

inches while we're operating. 

THE WITNESS: He had to remove the coal. What he was saying, 

I think, he had to remove the coal before he could repair the machine, 

and the coal dust out of the compartment. 

JUDGE KOUTRAS: How about this grease and oil, did you 

attribute that to something other than the oil leak when you 

looked at it? 

THE WITNESS: No, sir, I thought that was over a period of 

time; really, I did. 

JUDGE KOUTRAS: So, the grease and oil you're talking about 

in your citation is not the same hydraulic oil Mr. Cook is talking 

about? 

THE WITNESS: No. You know, I didn't know about the busted 

hose, the burst hose. 

Findings and Conclusions 

Fact of Violation 

Respondent is charged with a violation of the provisions of 30 C.F.R. 

§ 75.400, which provides as follows: 11Coal dust, including float coal 

dust deposited on rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to accumulate in 

active workings, or on electric equipment therein." 

213 
With respect to the question as to whether the evidence adduced in 

this proceeding supports a finding that the respondent violated the 

provision of 30 C.F.R. § 75.400, as charged by the inspector, I take note 

of the fact that the Commission, in Old Ben Coal Company, 1 -FMSHRC 1954, 

1 BNA MSHC 2241, 1979 CCH OSHD 24,084 (1979), held that "the language 

of the standard, its legislative history, and the general purpose of the 

Act all point to a holding that the standard is violated when an accumulation 

of combustible materials exist," 1 FMSHRC at 1956. At page 1957. of 

that decision, the Commission also stated that section 75.400 is "directed 

at preventing accumulations in the first instance, not at cleaning up 

the materials within a reasonable period of time after they have accumulated." 

See also, MSHA v. C.C.C.-Pompey Coal Company, Inc., Docket No. PIKE 79-125-P, 

decided by the Commission on June 12, 1980, remanding the case to the judge 

to apply its holding in Old Ben. 

In its post-hearing brief, petitioner argues that the testimony 

by the inspector, as well as the testimony of respondent 9 s section foreman 

Cook supports the inspector's findings that accumulations of coal, coal 

dust, and grease and oil in the inner workings of the continuous miner 

in question did in fact exist at the time the inspector issued his citation, 

In addition, petitioner relies on the Commission's decision in Secretary 

of Labor v. Old Ben Coal Company, 2 MSHC 1017 (1979), and Secretary of Labor 

v. C.C.C.-Pompey Coal Company, Docket No. PIKE 79-125-P, decided by the 

Commission on June 12, 1980, remanded to Judge Steffey for application 

of the principles set forth in Old Ben. 

Petitioner asserts that the fact that the continuous miner may 

have been out of service makes no difference since the standard simply 

prohibits accumulations on electrical equipment and there is no requirement 

that such electrical equipment be in service or even energized. Even so, 

on the facts in this. case, petitioner asserts that the continuous miner 

trailing cable had power and that the lights were on. In addition, petitioner 

points to the fact that even accepting the testimony of foreman Cook 

that the machine had a broken hose, Inspector Mooney tagged it out and 

took it out of service when he looked inside the machine and found the 

accumulations which he cited, and that the inspector took it out of 

service because in his judgment it needed to be cleaned. 

In its post-hearing brief, respondent cites the cases of Ziegler 

Coal Company, 3 IBMA 366 (1974), and Plateau Mining Company, 2 IBMA 303 

(1973), in support of its argument that c:ltations should be issued for 

accumulations of oil and grease on a piece of equipment which had been 

taken out of service and was being cleaned at the time the violation is 

cited. Even though the continuous mining machine in the instant case 

may have been defective because of the presence of accumulations of 

grease and coal, respondent maintains that it has demonstrated by a 

preponderance of the evidence that the miner was under repair (being 

cleaned), and in support of this conclusion respondent relies on the 

testimony of Mr. Cook as well as his shift report (Exhibit R-1). 

214 
Respondent also argues that coal accumulations on mining machines 

used at the face during mining are unavoidable and are inherent in the 

nature of the coal mining business. While conceding that the intent of 

section 75.400 is to prevent coal accumulations which are left from shift 

to shift without being cleaned up, respondent nonetheless maintains that 

in this case the miner was down and being cleaned at the time the inspector 

observed it. Citing the testimony of section foreman Cook, respondent 

maintains that he had a clearer recollection of the events in question 

than did Inspector Mooney. 

Respondent's reliance on the Ziegler and Plateau decisions by the 

former Board of Mine Operations Appeals as a defense to the citation issued 

in this case is rejected. Those cases dealt with withdrawal orders 

issued by mine inspectors for defective equipment. In the instant case, 

the respondent is charged with a violation of section 75.400, which deals 

with accumulations of combustible materials and not with a citation 

for any defects in the machine. I conclude and find that the Conunission 1 s 

decisions in Old Ben and C.C.C.-Pompey Coal Company are controlling and 

applicable to the facts presented in this case. In Old Ben while the 

Conunission accepted the fact some spillage of materials 

may be inevitable in mining operations, it also found that an accumulation 

of such materials were in fact present and did exist in that case and 

that the mine operator did not dispute those facts. 

I accept the testimony of Inspector Mooney that he tagged the 

machine out after finding the accumulations of coal, coal dust, grease 

and oil caked around the engine compartment, and I conclude and find that 

Inspector Mooney took that course of action because of the accumulations 

and not because of any broken hose. Although a broken hose may have 

contributed to the caking of the accumulations, the amounts measured by 

Mr. Mooney reasonably support an inference that the accumulated 

combustible materials had been permitted to exist for at least several 

working shifts prior to his inspection. In this case, while the record 

reflects that the shift foreman prior to Mr. Cook's shift purportedly 

told Mr. Cook about a defective hydraulic hose on the 11 off-side 11 of the 

machine, and the machine operator was at or near the machine when the 

inspector looked into the motor compartment, neither of these individuals 

were produced by the respondent at the hearing to tes Although 

Mr. Cook's "foreman's report", exhibit R-1, reflects that the miner machine 

was down at the start of his shift from 4:30 to 6:00 p.m. because of a 

"broken suction hose", it also reflects that it was "still down" from 

6:00 to 11:15 p.m., because the inspector believed it needed cleaning. 

As correctly pointed out by petitioner in its brief, Mr. Cook's report 

was filled in after the fact, and the previous shift foreman was not 

called to substantiate any claims by the respondent that the miner had 

been idled during the day shift because of any broken hose. 

After careful review and consideration of all of the testimony and 

evidence adduced in this case, I conclude and find that the petitioner 

has the better part of the argument and that it has proved a violation 

of section 75.400 by a preponderance of the evidence and the citation is 

AFFIRMED. 

215 
Size of Business and Effect of Civil Penalty on Respondent's Ability to 

Remain in Business. 

The parties stipulated that the assessment of an appropriate civil 

penalty in this case will not adversely affect the respondent's ability 

to remain in business, and I adopt this as my finding in this case. 

With regard to the respondent's size of business, the parties stipulated 

that respondent's annual 1980 coal production was approximately 259,001 

tons, and I consider this to be a medium size mining operation. 

In its post-hearing brief, petitioner's counsel argues that I 

should consider the annual production tonnage of 3,258,781 for the 

Youngstown Mine Corporation, the parent company,in any determination of 

the size of the respondent. This argument is rejected. Petitioner 

stipulated to respondent's annual production during the relevant time 

period and counsel specifically stated at the hearing that he was in 

agreement that an annual production of 259,000 would the mine in 

the small or medium range (Tr. 7). 

Good Faith Compliance 

The record reflects that respondent took immediate steps to abate 

the citation and to assign men to clean the accumulations from inside 

the miner in question. This is indicative of rapid good faith compliance 

on respondentvs part and that fact is reflected in the civil penalty 

which I have assessed for the citation in question. 

Gravity 

Although I consider accumulations of combustible materials on 

electrical machines or components to be serious matters, on the facts 

presented in this case the gravity of the conditions cited is tempered 

somewhat by the fact that the miner machine was not in operation and 

that coal was not being mined. In addition, petitioner has not rebutted 

the testimony by the respondent that the fire resistant emulsion oil 

used in the miner does afford some protection against any possible fire. 

Under the circumstances I conclude that the gravity connected with this 

citation was low. 

Negligence 

Since I have concluded that the accumulations cited by the inspector 

were permitted to exist over a period of time, I must also conclude 

that the respondent was negligent for failure to exercise reasonable 

care to correct the condition resulting in the violation. Accordingly, 

I find that the violation resulted from respondent's ordinary negligence. 

History of Prior Violations 

The parties stipulated that for the 13-month period prior to 

the issuance of the citation in question respondent had a history of 

216 
501 assessed violations. Although petitioner presented no details 

or arguments concerning this history, for a mine of its size, 501 

violations over a span of 13 months is not a good compliance record. 

Accordingly, this reflected in the penalty assessment made by me in 

this case. 

Penalty Assessment and Order 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that a civil penalty assessment in the amount of $1,000 is 

reasonable and appropriate for the citation which I have affirmed, and 

respondent IS ORDERED to pay the assessed penalty within thirty (30) 

days of the date of this decision and order. Upon receipt of payment 

by the petitioner, this case is DISMISSED. 

~~ative p/ ~t~ Law Judge 

Distribution: 

David Bush, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA lql04 (Certified Mail) 

Roger S. Matthews, Esq., Youngstown Mines Corp., 3 Gateway Center, 

9 North, Pittsburgh, PA 15263 (Certified Mail) 

217 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLGA COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 81-380 

A.O. No. 46-01407-03091V 

Olga Mine 

DECISION 

Appearances: David Bush, Attorney, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the petitioner; Roger S. 

Matthews, Esquire, Pittsburgh, Pennsylvania, for the 

respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty 

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), · 

charging the respondent with one alleged violation of mandatory safety 

standard 30 C.F.R. 75.400. Respondent filed a timely answer in the 

proceedings and a hearing was held on November 17, 1981, in Charleston, 

West Virginia, and the parties appeared and participated therein. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulation as alleged in the proposal for assessment of civil penalty 

filed in this proceeding, and, if so, (2) the appropriate civil penalty 

that should be assessed against the respondent for the alleged violation 

based upon the criteria set forth in section llO(i) of the Act. 

In determining the amount of civil penalty assessments, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator charged, 

218 
(3) whether the operator was negligent, (4) the effect on the operator's 

ability to continue in business, (5) the gravity of the violations, and 

(6) the demonstrated good faith of the operator in attempting to achieve 

rapid compliance after notification of the violations. 

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, 29 C.F.R. & 2700.1 et~· 

Discussion 

Citation 0655868, 12/29/80, 30 CFR 75.400, states as follows: 

3 West 034 Section - Loose dry coal was allowed to 

accumulate along the active shuttle car haul road beginning at the loading ramp and extending inby for a 

distance of approximately 200 feet. The coal measured 

from 4 to 12 inches in depth. 

Testimony and Evidence Adduced by the Petitioner 

MSHA Inspector Aubrey T. Castanon testified as to his background and 

confirmed that he conducted an inspection at the mine in question on 

December 29, 1980, and that he issued Citation 0655868 after finding 

accumulations of dry loose coal and coal fines in the 3 west section 

beginning at the ramp loading point and extending inby to the pillar 

block which was being mined. He measured the accumulations with a standard 

ryler and they ranged from four to twelve inches in depth (Exhibit P-1, 

Tr. 6-9). He took notes of the conditions he observed, and stated that 

during the inspection he discussed the conditions cited with respondent's 

mine safety inspector Jim Bayldr, and his notes reflect that Mr. Baylor 

could not understand "why the dayshift left the roadway in the shape 

it is in" (Tr. 11). 

Inspector Castanon identified a copy of his inspector's statement 

which he filled out at the time he issued the citation and he confirmed 

that the roadway which he cited was an active working area of the mine. 

He believed that mine management was negligent because the area where the 

accumulations were found was the only roadway from the ramp to the pillar 

being mined and that the conditions should have been obvious to the 

section foreman or pre-shift examiner walking the area (Tr. 12). Mr. 

Castanon stated further that at the time he observed the conditions the 

shift had begun and eight men were working in the section. He believed 

the accumulations of coal presented a possible fire hazard, and energized 

shuttle car cables would be lying in the roadways where the accumulations 

were present (Tr. 14-15). 

219 
Mr. Castanon stated that clean-up operations began at approximately 

five p.m. and were completed by 4 a.m., December 30, 1980. Approximately 

three shuttlecars of coal were loaded just in front of the -ramp to abate 

the citation and the abatement efforts were confirmed by company safety 

inspector Aaron Charles. Since the abatement took approximately 11 hours, 

Mr. Castanon believed the coal accumulations were extensive. Mr. Castpnon 

stated that mine management representatives, including the mine superintendent 

and foreman, discussed the matter with him during the abatement process 

and that Mr. Baylor advised him that he had been on the section during the 

previous day shift, had noticed the accumulations and had instructed 

the evening shift section foreman to back the continuous mine up to the 

ramp and to clean the roadway but that this had not been done at the time 

he arrived on the section. He also stated that Mr. Baylor had 

with his decision to issue the citation and that his notes confirm this 

fact (Tr. 17-18). 

On cross-examination, Inspector Castanon confirmed that the mine 

in question operated on three shifts; namely, the 11hoot-owl" shift from 

11:00 p.m. to 7:00 a.m., the day shift from 7 to 3 p.m., and the evening 

shift from 3 p.m. to 11 p.m. He confirmed that he observed someone around 

the ramp area when he first arrived on the section the day of his inspection, 

and that the person was "just sitting" (Tr. 24). He could recall no 

one shovelling coal or cleaning in the area. He did recall some individuals 

working around the continuous miner which was facing towards the face, 

but he could not recall what the individuals were doing (Tr. 26-27). 

He also observed a shuttle car parked at the ramp area facing south, and 

a second shuttle car parked at the first check curtain to the east of 

the ramp area (Tr. 29). He confirmed the fact that he went to the face 

area to observe the roof conditions, and later came back and issued the 

coal accumulations citation after looking over the area and making his 

measurements (Tr. 30). The deepest accumulations consisting of 12 inches 

were present at the ramp area, and the four inches were measured along 

the remaining area for approximately 200 feet continuously from the ramp 

to the split of the two blocks of coal, outby the area where the miner 

was parked and towards the face (Tr. 32). 

Mr. Castanon testified that a citation was issued on the continuous 

miner, and he vaguely recalled being told that the miner machine was broken 

down (Tr. 34). However, his notes do not reflect any details concerning 

the breakdown of the machine. He stated that the usual method of cleaning 

accumulations in the mine was by means of scoops, but he could not· state 

whether this was the means used in this case since he had not been at the 

mine for some time (Tr. 35). Had he observed cleaning in process with the use 

of a continuous mining machine only, he would still have issued a citation 

because he does not believe that a mining machine can do an adequate 

clean-up job because of the fact that the machine pan cannot clean up the 

middle of the roadway. The ramp area must be cleaned by shovel and the 

continuous miner could not adequately clean the ramp and the accumulations 

were continually being run over and packed down by the machine (Tr. 35-37). 

220 
Mr. Castanon testified that he recalled one power cable lying on 

the shuttlecar roadway, but could not recall which one. He also indicated 

that the ribs were solid and could recall no rib sloughing problems. 

He stated that the cleanup program required that accumulations be cleaned 

up as needed and reiterated his belief that the day shift and evening 

shift foremen should have been aware of the accumulations which he found, 

and he could not recall being told that the miner was parked by the ramp 

to facilitate clean-up (Tr. 40). 

On redirect, Mr. Castanon testified that he saw no evidence of anyone 

cleaning up when he arrived on the section, and had he observed clean-up 

taking place he would not have issued a citation (Tr. 41-42). He also 

believed that the accumulations had occurred over more than two shifts 

(Tr. 43). 

In response to bench questions, Mr. Castanon conceded that had the 

continuous mining machine been in the process of cleaning the roadway 

when they arrived on the scene, he would still have issued the citation 

because the machine pan could not reach the mine floor and when the 

respondent attempted to use it for clean up it was riding on the top of 

the coal and could not reach down far enough to clean up the accumulations 

lying on the raodway (Tr. 50). He reiterated that he issued the citation 

because of the presence of coal accumulations and the fact that the 

respondent allowed them to exist without making any effort to clean them 

up (Tr. 53). 

In response to bench questions, Inspector Castanon stated that he 

observed no splices in the cables which were present in the area of the 

accumulations and that while he was present during the abatement three 

shuttle cars of coal were cleaned up from the roadway but little from 

the ramp. He also stated that the accumulations were black and he believed 

they resulted from overloading of the shuttle cars over a period of time 

(Tr. 54-55). 

Respondent's Testimony and Evidence 

Harry Litteral testified that he was the 3 West second shift 

(evening) section shift foreman on December 29, 1980, when the 

citation was issued by Inspector Castanon. At the beginning of the shift 

he had a discussion with the previous shift foreman, Arthur Christian, who 

advised him that coal was beginning to accumulate on the shuttlecar 

haulway, that the number one pillar needed to be "broken off", and that 

additional dusting was needed. The mine superintendent instructed him 

to back the continuous mining machine to the ramp and to begin cleaning 

the coal accumulations. However, after discovering that the No. 1 pillar 

"was working", he decided to break it off and to install timbers for roof 

support to keep the roof from "riding back" to where coal would have to 

be mined. He then moved the miner out so that the shuttlecar could travel 

to the ramp to obtain roof support supplies. He then encountered a 

broken water hose on the miner water sprays and he proceeded to make 

those repairs near the ramp when Inspector Castanon arrived on the scene 

(Tr. 56-63) . 

221 
Mr. Litteral testified that prior to the arrival of the inspector, 

he had one of his miners assigned to ventilation work, one man cleaning 

at the ramp, two roof halters and two timber men timbering the No. 1 

pillar block, and two men at the continuous mining machine helping him 

repair the water hose break. Mr. James Baylor was with the inspector, 

and Mr. Baylor advised him that the miner was dirty and needed 

cleaning. Mr. Litteral then assigned a man to clean the machine and advised 

Inspector Castanon that he had no intention of loading coal until the 

roadways were cleaned up. While clean up of the roadway was in progress, 

the inspector advised him that it was not doing the job, and clean up 

then continued by hand. Mr. Littral conceded that the miner pan will 

not clean the entire roadway if it elevated and shovels must be used 

(Tr. 66-67). 

Mr. Litteral stated that coal was loaded out only for clean up during 

his shift and when he returned the next day the citation was abated. He 

believed that rib sloughing contributed to the accumulations, and that 

spillage does occur when the shuttle cars are "too heavy" (Tr. 69). 

He indicated that the coal was soft that the movement of the shuttle 

car around the corner by the ramp, and the cable moving about contributed 

to the dispersement of the coal accumulations on the roadway (Tr. 70). 

No coal was mined during the shift and he intended to clean up first 

before beginning to mine coal (Tr. 71). He also stated that he assigned 

men to clean and rock dust and identified a copy of the mine cleanup 

program (Exhibit R-3). He stated that numbered paragraph four of the plan 

was the applicable procedure for cleaning the shuttlecar roadway in question 

(Tr. 73). 

On cross-examination, Mr. Litteral confirmed that the previous 

shift foreman had informed him that coal was beginning to accumulate 

on the shuttlecar roadway and that the accumulations extended for the 

approximate 200 foot distance as stated by Inspector Castanon (Tr. 74). 

He also conceded that the accumulations could not have occurred between 

his shift and the previous shift. He also reiterated that rib sloughing 

was a constant problem and that this would account for coal accumulations 

in the roadway and the cleanup program requires daily attention to 

clean up and that "you work on it all the time" (Tr. 76). Road bottom 

conl.itions dictate whether the accumulations can effectively be cleaned 

by use of the miner machine and a scoop might be better since it has a 

sharper blade (Tr. 77). 

James Baylor testified that at the time the citation issued he 

was employed at the mine as a safety assistant and that he accompanied 

Inspector Castanon during his inspection. Mr. Baylor stated that while 

on the section he encountered section foreman Litteral and advised him 

that he needed to clean up coal accumulations on the continuous miner. 

Inspector Castanon was in the area inspecting the faces and the roadway. 

He then decided to issue the citation for coal accumulations and at that 

point in time Mr. Baylor advised the shift foreman that the citation 

had issued and he assigned additional men to clean them up (Tr. 89). 

222 
'When it was determined that clean up could not be effectively accomplished 

by using the continuous miner, additional shovels were brought to the area 

and the accumulations were shovelled into shuttle cars (Tr. 90). 

Mr. Baylor did not see accumulations to the depth of a foot, and he indicated 

that rib sloughing does cause accumulations at the base of the rib. 

He observed the accumulations in the roadway and indicated that they 

were caused by the shuttle cars driving on the roadway and the slack cable 

that moves about as the shuttle cars travel the roadway. He observed 

no one pulling down or cleaning up the coal ribs and he explained that 

this could not be done because it would widen the width of the roadway 

and cause roof control problems (Tr. 91-93). 

On cross-examination, Mr. Baylor confirmed that he told Inspector 

Castanon that he could not understand why the day shift left the accumulations 

on the roadway, and he conceded that it was unusual for the shift to be 

left 'in such a condition (Tr. 94). He admitted that it "was in bad shape" 

but denied that there were 12 inches of coal accumulations all along the 

roadway, but he did not question that 12 inches were present near the 

anchoring point of the shuttle car trailing cable (Tr. 95). Mr. Baylor 

took no measurements of the accumulations and he could not recall whether 

he was present when the inspector made his measurements. Although 

Mr. Baylor stated that he took notes, he did not have them with him at 

the hearing (Tr. 96), 

Findings and Conclusions 

Stipulations 

The parties stipulated to the following (Tr. 4-5): 

1. Olga Coal Company owns and operates the Olga Mine. 

2. Olga Coal Company is involved in the extraction of 

raw coal from its natural deposits in its operation 

at the Olga Mine. 

3. Inspector Aubrey T. Castanon was at all times relative 

thereto an authorized representative of the Secretary 

of Labor. 

4. Olga Coal Company and the Olga Mine is subject to the 

Mine Safety and Health Act of 1977. 

5. The Administrative Law Judge has jurisdiction over these 

proceedings. 

6. The subject citation and termination thereof were properly 

served by a duly authorized representative of the Secretary 

of Labor upon an agent of Olga Coal Company at the dates, 

times and places stated therein and may be admitted into 

evidence for the purpose of establishing their issuance 

but not for the truthfulness or relevancy of the statements 

asserted therein. 

223 
7. The assessment of an appropriate civil penalty in this 

proceeding will not affect Olga Coal Company's ability 

to remain in business. 

8. The appropriateness of the civil penalty, if any, to 

the coal operator's business should be based on the 

fact that in 1980 the company had an annual tonnage 

of eight hundred thousand twenty (800,020) production 

tons and Olga Mine had an annual tonnage of five hundred 

ninety-eight thousand seven hundred ten (598,710) production 

tons. 

9. In the twenty-four month,period prior to the issuance 

of the subject citation, the operator had a history of 

five hundres thirty-six assessed violations. 

Fact of Violation 

Respondent is charged with a violation of the provisions of 30 C.F.R. 

§ 75.400, which provides as follows: "Coal dust, including float coal 

dust deposited on rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to accumulate in 

active workings, or on electric equipment therein." 

In its post-hearing brief, petitioner argues that the testimony of 

the inspector who issued the violation, as well as the testimony of the 

section foreman and respondent's safety assistant, support the fact 

that the cited accumulations did in fact exist as detailed by the inspector 

both in his testimony and the citation which he issued, and relying on 

the decision by the Commission in the case of Secretary of Labor v. 

Old Ben Coal Company, 1 MSHC 2241-2243, petitioner asserts that the citation 

should be affirmed. 

In its post-hearing brief, respondent takes the position that a 

literal application of section 75.400 would in effect prohibit all underground coal mining since spillage and collection of coal left in shuttle 

cars and mine cars between turns and during work stoppages would all 

technically be violations of the standard. Respondent maintains that 

the intent of section 75.400 is to prohibit combustible materials from 

accumulating in certain areas of the mine shift to shift without any 

effort being made to clean them up. This being the case, respondent argues 

further that the active workings are by their very nature clean, being 

cleaned, or in the process of accumulating combustible materials. 

In this case, the respondent's defense is bottomed on an assertion 

that the inspector could not estimate how long it took to accumulat,e 

the amount of materials which he cited, and that the respondent was in 

the process of taking remedial action to clean up any accumulations that 

existed in the areas in question. Further, respondent maintains that 

it was its intention to clean up the haul road and ramp raea before 

mining any coal. Respondent states that its clean-up plan permits the 

use of continuous mining machines to clean up active roadways, and that 

even though a scoop used to clean the roadway in question was not available, 

the use of the mining machine was proper and the inspector acted 

prematurely in issuing the citation before giving the respondent time 

to clean up the areas cited. 
In Old Ben Coal Company, 1 FMSHRC 1954, 1 BNA MSHC 2241, 1979 

CCH OSHD 24,084 (1979), the Commission held that "the language of the 

standard, its legislative history, and the general purpose of the Act 

all point to a holding that the standard is violated when an accumulation 

of combustible materials exist," 1 FMSHRC at 1956. At page 1957 of 

that decision, the Commission also stated that section 75.400 is "directed 

at preventing accumulations in the first instance, not at cleaning up 

the materials within a reasonable period of time after they have 

accumulated." See also, MSHA v. C.C.C.-Pompey Coal Company, Inc., 

Docket No. PIKE 79-125-P, decided by the Commission on June 12, 1980, 

remanding the case to the judge to apply its holding in Old Ben; 

Turning to the evidence and testimony adduced in this case, I 

conclude and find that the preponderance of the evidence establishes the 

existence of the accumulations of loose dry coal and coal fines as 

described by the inspector along the haulage road and ramp area in question. 

The detailed testimony by the inspector, supported by his notes and the 

measurements he took to support the citation more than adequately establish 

the conditions he described both on the face of his citation as well 

as in his testimony during the hearing. The inspectorvs testimony that 

approximately three shuttle cars of coal were loaded out during the 

abatement process which took approximately 11 hours is indicative of 

the fact that the accumulations were rather extensive. Further, even 

though the inspector had no precise idea as to how long the accumulations 

were there, he believed that they existed for over two shifts and he saw 

no clean-up taking place at the time of his inspection. As stated during 

the hearing, the inspector issued the citation after finding accumulations 

of coal which he believed were permitted to exist without any efforts 

at cleaning them up (Tr. 53). 

In view of the foregoing, I conclude and find that petitioner has 

established the fact of violation in this case, and I accept its arguments 

in support of the citation, and reject the arguments advanced by the 

respondent in its defense. The citation is AFFIRMED. 

Size of Business and Effect of Civil Penalty on Respondent's Ability to 

Remain in Business. 

The parties stipulated that the assessment of an appropriate civil 

penalty in this case will not adversely affect the respondent's ability 

to remain in business, and I adopt this as my finding in this case. 

With regard to the respondent's size of business, the parties stipulated 

that respondent's annual coal production was approximately 598,710 tons, 

and I consider this to be a medium-to-large size mining operation. 

Good Faith Compliance 

The record reflects that the inspector fixed the initial abatement 

time as twelve noon on December 31, 1981, but the termination notice 

reflects that the conditions were abated and the citation terminated 

at twelve noon on December 30, 1981. In addition, the testimony presented 

225 
by all of the witnesses reflects that respondent exhibited rapid 

compliance in cleaning up the accumulations. Under the circumstances, 

I find that resp6ndent exhibited rapid abatement in cleaning up the cited 

accumulations and this is reflected in the penalty assessed by me in 

this case. 

Negligence 

The extent of the accumulations which the inspector found in this 

case suggests more than just a "beginning" of accumulations on the haul 

road and ramp as argued by the respondent in its brief. In addition, 

on the facts of this case, I reject respondent's attempt to defend the 

existence of the accumulations on the basis of the language found in its 

clean-up program which states that accumulations on each shift need only 

be cleaned up needed". In my view, the "need" for clean-up had 

long passed by the time the inspector arrived on the scene and issued 

his citation. I accept the inspector's testimony that the accumulations 

existed for more than two shifts, and since the roadway in question 

was one traveled by miners and supervisory personnel I believe that mine 

management should have known of the accumulations earlier than is suggested 

by its post-hearing arguments and that its failure to exercise reasonable 

care to correct the conditions which caused the violation and which 

respondent knew or should have known amounts to ordinary negligence. 

Gravity 

Although it is true that coal was not being mined at the time the 

conditions were observed by the inspector and the one power cable which 

may have been lying on the accumulations was not energized, the fact is that 

coal accumulations which are not cleaned up present a serious potential 

for a mine fire. In this case, while the probability of an inginition 

was low because mining was not taking place and the continuous miner 

was down and deenergized due to some repair work, the fact is that men 

were on the section and the existence of accumulations of combustible 

coal and coal fines presents a hazard to those miners. Under the circumstances, I conclude that the violation which I have affirmed is serious. 

History of Prior Violations 

The parties stipulated that in the 24 month period prior to the 

issuance of the citation in question, respondent had a history of 536 

assessed violations. In its post-hearing brief, petitioner alludes to 

a computer print-out showing a breakdown of assessed violations of 

section 75.400 by the respondent, and it was submitted on January 26, 1982. 

The print-out shows 86 paid assessments by the respondent for violations 

of section 75.400, during the period December 29, 1978 to December 28, 1980. 

For a mine of its size, I conclude that respondent's past history 

of assessed violations is not a particularly good one. Although petitioner 

has submitted no details concerning the 86 prior citations concerning 

226 
accumulations citations for violations of section 75.400, the repetitive 

nature of these citations should alert the respondent to the fact that 

its clean-up program may be in need of further attention. I conclude 

that respondent's history of.prior violations is such as to warrant 

an increase in the original penalty assessment made in this case and 

this is reflected in the penalty which I have assessed for the violation 

in question. 

Penalty Assessment and Order 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that a civil penalty in the amount of $1200 is reasonable and 

appropriate for Citation No. 0655868, December 29, 1980, 29 CFR 75.400~ 

and respondent IS ORDERED to pay the penalty within thirty (30) days 

of the date of this decision and order. Upon receipt of payment by 

the , this matter is DISMISSED. 

~K~a~ Administrative Law Judge 

Distribution: 

David Bush, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Roger S. Matthews, Esq., Youngstown Mines Corp., Olga Coal Co., 3 

Gateway Center, 9 North, Pittsburgh, PA 15263 (Certified Mail) 

227 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE FEB 4 1982 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METRO ASPHALT COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket No. CENT 81-200-M 

A.O. No. 41-02664-05003 

Docket No. CENT 81-201-M 

A.O. No. 41-02664-05004 

Leyendecker Paving Pit & Plant 

DECISION 

Appearances: Eloise Vellucci, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for the Petitioner; 

Mr. Burney T. Sullinger, Corpus Christi, Texas, for 

the Respondent. 

Before: Judge Stewart 

This is a proceeding filed by the Secretary of Labor, Mine Safety 

and Health Administration (MSHA), under section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter the 

Act), l./ to assess civil penalties against Metro Asphalt Company. The 

hearing was held in Laredo, Texas on September 29, 1981. 

The parties stipulated in regard to the history of previous 

.violations by Metro Asphalt that the number of violations found in the 

two years previous to the inspection were few and that the size of 

Metro Asphalt can be considered small. In the absence of evidence 

to the contrary it is found that the penalties assessed will not affect 

the ability of Metro Asphalt to continue in business. 

l/ Section llO(i) of the Act provides: 

"(i) The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary penalties, 

the Commission shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violation, 

and the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. In proposing 

civil penalties under this Act, the Secretary may rely upon a sunnnary 

review of the information available to him and shall not be required to 

make findings of fact concerning the above factors." 

228 
CENT 81-201 

Citation No. 171466 (Exhibit P-1) 

The inspector noted in the citation that: 

"The parking brakes on the 950 front end loader at the 

pit were inoperable. The front end loader operator is 

continuously loading haul trucks and employees were 

observed out of the haul trucks. The front end loader 

could roll forward or backward when the operator was 

not on the loader, and the loader could roll over an 

employee and seriously injure him. 

30 CFR 56.9-3 provides that: 

"Powered mobile equipment shall be provided with 

adequate brakes." 

The inspector checked the parking brakes by having the operator 

put the brakes on and then try to go forward. The loader kept on going 

forward indicating that the parking brakes were not operable. The terrain 

was on a slight incline. Putting the machine in gear will not stop the 

machine from rolling while parked because if hydraulic pressure is lost 

it can roll without the brakes being on. 

The normal operating foot brakes were functioning properly but 

the parking brakes did not operate. 30 CFR 56.9-32 requires that dippers 

buckets, scraper blades and similar moving parts shall be secured or 

lowered to the ground when not in use. They may be either lowered 

to the ground or secured to prevent injuries in the event these moving 

parts should fail. Although it is safer and the equipment is not so 

likely to roll when the bucket is down the lowering of the moving parts 

to the ground is not an alternative to the parking brakes. 

The equipment operator testified that he put the bucket down and 

pulled the hand (parking) brake when the equipment was parked. He does 

not get off the front end loader while the machine is still running. 

He parks it on level ground and puts it in first gear. At the time of 

the inspection the machine was on an incline and had to go on an incline 

to get to the stock pile. 

Five persons (independent contractors) were congregated in the shade 

of the stock pile behind the machine where it would have to go backwards to unload. It is probable that the machine could roll over a 

person resulting in a fatality. 

The operator (Metro Asphalt) should have been aware of the condition 

if the foreman, a competent designated person, or Mr. Leyendecker 

(President of Leyendecker Materials Inc., who was there most of the time) 

229 
were doing their normal check ups as required but the condition was 

not obvious. It was necessary to check the brakes to discover the 

defective parking brakes. The negligence of the operator was therefore 

slight. 

Metro Asphalt demonstrated good faith in achieving rapid compliance 

after notification of the violation. The loader was removed from service 

immediately to get it repaired. The citation was terminated by another 

inspector. 

Citation 171467 (Exhibits P-2) 

The inspector noted in the Citation that: 

"The head pulley on the No. Seven conveyor was not 

guarded. The pulley was approximately about four 

feet above ground level where persons servicing 

or doing maintenance could get entangled and receive 

serious injuries. There was one person in the area 

who does maintenance and service and clean-up. 11 

30 CFR 56.14-1 provides that: 

"Gears: sprockets; chains; drive, head, tail, and 

takeup pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similar exposed moving machine 

parts which may be contacted by persons, and which may 

cause injury to persons, shall be guarded." 

The head pulley did not have a guard and a person could get entangled 

by falling or tripping. A shovel could get caught between the belt 

and the pulley and drag the workman in. The pulley was positioned about 

four feet above the ground. Inspector Herrera believed that it was a 

self cleaning pulley with ten or twelve wings extending from the hub 

creating multiple pinch points. Mr. Richard Leyendecker testified that 

it was not a self cleaning pulley. Since self cleaning pulleys were 

installed only at the tail end of conveyors the testimony of Mr. 

Leyendecker is accepted as more credible; however the head pulley still should 

have been guarded since it posed a hazard. The head pulley was a drumtype roller with the ends closed which resulted in fewer pinch points. 

There were one or two persons in a "shacktt about 40 feet from the 

head pulley. They clean up and do service maintenance in the area but 

were not observed actually working at the time of the inspection. The 

hazard existed only when the equipment was in operation. 

The loader operator and the control operator are usually in the area. 

The plant equipment is electrically controlled by the operator who is 

not physically next to the equipment while the plant is in operation. 

Company policy is that all equipment is shut down for maintenance, 

servicing, and clean up. The probability is slight that one of the two 

230 
persons in the general vicinity could become entangled in the pulley 

resulting in the loss of an arm or a fatality. 

The record establishes ~hat the operator was negligent since he 

should have known that the head pulley had no guard. The condition 

was obvious and in plain sight. The inspector had discussed head and 

tail guards since 1977 with Mr. Leyendecker, who was often in the area. 

Metro Asphalt demonstrated good faith in rapid compliance 

after notification of the violation. Mr. Leyendecker had the welder 

start working on the guards immediately. The citation was terminated 

by another inspector. 

Citation 171468 (Exhibit P-3) 

The inspector noted on the citation that: 

"The guard on the feed conveyor to the No. 3 

shaker was not extended sufficient 

reaching behind guard and becoming 

and receiving serious injuries. There was one 

employee in the area who did maintenance and 

. d 1 11 service an c eanup. 

The inspector was unable to remember this condition and 

no other evidence sufficient to prove a violation was adduced. The 

citation is accordingly vacated. 2 

Citation 171469 (Exhibit P-4) 

The inspector noted on the citation that: 

"The V-belt drive on the Telesmith shaker was not 

provided with a guard. There was an elevated travel 

way next to the drive where persons could fall against 

and become entangled and receive serious injuries. 

There was one person who did service and maintenance 

on equipment." 

2/ Where asked to explain the circumstances the testified: 

111 can read here, but I cannot recall this particular incident. A feeder 

conveyor, I mentioned the whole feeder conveyor; now, I did not mention 

the head or the tail pulley and this kind of throws me off. 11 When asked 

what the guard on the pulley looked like he testified: is where my 

memory fails me, becuase this is talking about guarding a whole feeder 

and not a tail pulley or a head pulley. So I've been trying to picture 

in my mind what it was, but I can't. I can 1 t recall." He also stated 

in a forthright manner that he did not put information on the citation 

that could refresh his memory. 

231 
The record establishes a violation of 30 CFR 56.14-1. The V-belt 

drive was exposed in such a manner that a person could fall against it 

and get entangled. The V~belt drive was about one foot off the walkway 

platform. 

The one person who did service and maintenance on the equipment 

was not on the walkway at the time of the inspection. The hazard 

existed only when the equipment was in operation. The walkway is 

approximately 10 feet off the ground with a loader going to it. 

There had been a recent fatality in a limestone mine where a person 

was caught in the tail pulley while another person was attempting to 

remove a rock. 

The pit is about three miles from the asphalt plant, The inspector 

inspects only the pit and crushing portion of the operation. 

It is unnecessary to stop the equipment to oil or grease it or 

to clean-up. Stopping the equipment is not a requirement if it is guarded, 

Although no one is supposed to go on the walkway for servicing the 

machinery while it is in operation, the experience of the inspector is 

that an employee will sometimes clean up with the equipment in operation. 

The probability is slight that an employee will be injured in 

the area where the machinery is exposed. 

The operator, Metro Asphalt, was negligent in that it should have 

known of the exposed V-drive belt. The condition was obvious and could 

be seen from the ground level. 

Metro Asphalt demonstrated good faith in achieving rapid compliance 

after notification of the violations by putting a bar across the ladder 

going up to the elevated traveling and a sign reading "Do Not Enter." 

The operator also testified that the operator had welders start work on 

the guards immediately. 

Docket CENT 81-200-M 

Citation No. 171470 (Exhibit P-5) 

The inspector noted in the Citation that: 

"The guard on the tail pulley of the crusher feed 

conveyor was not extended sufficient to prevent 

person from reaching behind guard and becoming 

entangled and receiving serious injuries. There 

was one person who did service and maintenance and 

cleanup." 

232 
30 CFR 56.14-3 provides that: 

"Guards at conveyor-drive, conveyor-head, and ~onveyortail pulleys shall extend a distance sufficient to prevent 

a person from accioentally reaching behind the guard and 

becoming caught between the belt and the pulley." 

The record establishes a violation of 30 CFR 56.14-3. The guard on 

the tail pulley was not extended sufficiently. The back portion of the 

tail pulley was partially guarded up to a certain place but it was not 

guarded adequately. If a person were to trip he could put his hand 

where it would be caught between the tail pulley and the inadequate 

guard. MSHA recommends an expanded metal guard completely surrounding 

the tail pulley. The pulley is visible through the expanded metal 

yet it protects persons from being injured by the pulley. 

Although it was normal company policy to shut down while doing 

clean-up, servicing or maintenance there is a slight probability under 

the circumstances existing that a person would be injured as a result 

of the unguarded tail pulley if the equipment should be started up 

accidentally or if a person did not abide by the company policy. 

MSHA had previously required a guard to be installed in 1977 when 

30 CFR 56.14-3 was not a mandatory requirement. Although the guard 

should be further extended, as now required by MSHA under the mandatory 

standard to reduce the hazard. the negligence of the operator under 

the circumstances was slight. 

Metro Asphalt demonstrated good faith in achieving rapid compliance 

after modification of the violation by installing a guard on the tail 

pulley of the crusher feed conveyor. Welders started work on the guard 

immediately. 

ORDER 

An assessment of $40 is ordered for each of the f-0ur citations 

found proved. Respondent is ordered to pay petitioner the amount of 

$160 within 30 days of this date of this order. 

Distribution: 

dv~!!~f Forrest E. Stewart 

Administrative Law Judge 

Eloise Vellucci, Esq., U.S. Department of Labor, Office of the Solicitor, 

555 Griffin Sq. Bldg., Suite 501, Dallas, TX 75202 (Certified Mail) 

Burney T. Sullinger, Esq., Sullinger & Sullinger, Inc., Occupational 

Safety Consultants, 822 Kinney Ave., Box 4510, Corpus Christi, TX 78408 

(Certified Mail) 

233 
FEDERAL MINE SAFETY AND HEALTH R~V'EW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 fEB 4 \982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

UNITED STATES STEEL CORPORATION, 

Respondent 

Docket No. PENN 81-146 

A/O No. 36-00970-03094 

Maple Creek No. 1 Mine 

DECISION 

Appearances: 

Before: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for the Petitioner; 

Louise Q. Symons, Esq., United States Steel Corporation~ 

Pittsburgh, Pennsylvania, for the Respondento 

Judge Stewart 

I. Procedural Background 

On June 8, 1981, the Secretary of Labor (Petitioner) filed a petition 

for assessment of civil penalty in the above-captioned case pursuant to 

section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (Supp. III 1979) (Act), charging United States· Steel 

Corporation (Respondent) with five violations of law as set forth in various 

citations issued pursuant to section 104(a) of the Act. The violations 

charged are identified as follows: 

Citation No. Date 30 C.F.R. Standard 

1046741 2/11/81 75.1403 

1046742 2/11/81 75.1403 

1046753 2/17/81 75.1403 

1046754 2/17/81 75.1403 

1046755 2/17/81 75.1403 

Each citation contained the additional allegation that the violation charged 

was of such nature as could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard. 

234 
On June 26, 1981, the Respondent filed an answer: (1) denying the 

existence of each condition alleged-in the 5 citations; (2) denying that 

any violations of 30 C.F.R. § 75.1403 occurred; (3) denying the allegation 

set forth in each of the 5 citations that the alleged violations were of such 

nature as could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard; and (4) admitting that it is 

engaged in interstate commerce. 

The hearing was held on August 11, 1981, in Pittsburgh, Pennsylvania 

with representatives of both parties present and participating. The 

Petitioner called Federal mine inspector Okey H. Wolfe as a witness. The 

Respondent called assistant mine foreman Joseph G. Ritz as a witness. 

The parties waived the right to file posthearing briefs and proposed 

findings of fact and conclusions of law. However, the parties did present 

closing arguments. Such closing arguments, insofar as they can be considered 

to have contained proposed findings and conclusions, have been considered 

fully, and except to the extent that such findings and conclusions have been 

expressly or impliedly affirmed in this decision, they are rejected on the 

grounds that they are, in whole or in part, contrary to the facts and law or 

because they are immaterial to the decision in this case. 

II. Issues 

Two basic issues are involved in this civil penalty proceeding~ (1) did 

a violation of 30 C.F.R. § 75.1403 occur, and (2) what amount should be 

assessed as a penalty if a violation is found to have occurred? In determining the amount of civil penalty that should be assessed for a violation, the 

law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of the penalty to the size of the operator's 

business; (3) whether the operator was negligent; (4) effect of the penalty 

on the operator's ability to continue in business; (5) gravity of the violation; and (6) the operator's good faith in attempting rapid abatement of the 

violation. 

The following additional issue is presented in this proceeding: If 

the cited violations of 30 C.F.R. § 75.1403 occurred, then whether such 

violations were of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or health hazard. See 

Energy Fuels Corporation, 1 FMSHRC 299, 1979 CCH OSHD par, 23,503 (1979-Y:-

II. Opinion and Findings of Fact 

A. Stipulations 

1. The Maple Creek No. 1 Mine is owned and operated by the Respondent, 

United States Steel Corporation (Tr. 3-4, 6). 

2. The Maple Creek No. 1 Mine is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977 (Tr. 4, 6). 

235 
3. The Administrative Law Judge has jurisdiction over these proceedings 

(Tr. 4, 6). 

4. The subject citations were properly served by a duly authorized 

representative of the Secretary of Labor upon an agent of the Respondent 

at the dates, times and places stated therein, and may be admitted into 

evidence for the purpose of establishing their issuance and not for the 

t,ruthfulness or relevancy of any statements asserted therein (Tr. 4, 6). 

5. The assessment of the civil penalty in this proceeding will not 

affect the Respondent's ability to continue in business (Tr. 4, 6). 

6. The appropriateness of the penalty, if any, to the size of the 

operatorvs business should be based on the fact that the Respondentvs 

annual ·production tonnage is 14,585,534 tons; and the Maple Creek No. 1 

Minevs annual production tonnage is 740,382 tons (Tr. 4, 6)0 

7. The Respondent demonstrated ordinary good faith and attained 

compliance after the issuance of each citation (Tr. 5-6)o 

8. 

over 759 

issuance 

pursuant 

The Maple Creek No. l Mine was assessed a total of 699 violations 

inspection days during the 24 months immediately preceding the 

of the instant citations. Of these violations, 100 were cited 

to 30 C.F.R. § 75.1403 (Tr. 5-6)o 

9. The parties stipulate to the authenticity of their exhibits, but 

not to their relevance nor to the truth of the matters asserted therein 

(Tr. 5-6). 

B. Occurrence of Violations 

Federal mine inspector Okey H. Wolfe issued Citation Nos. 1046741 and 

1046742 during the course of his February 11, 1981, regular inspection of 

the Respondent's Maple Creek No. 1 Mine. Citation No. 1046741 was issued 

at approximately 8:05 a.m., and charges the Respondent with a violation of 

30 C.F.R ~ 75.1403 in that "[tJhe sanding devices provided for the number 

12 personnel carrier (portal bus) located on Spinner Bottom were not 

provided with sand." (Exh. G-1, Tr. 9). Citation No. 1046742 was issued 

at approximately 8:06 a.m., and charges a violation of 30 C.F.R. § 75.1403 

in that "[tJhe sanding devices provided for the number 13 personnel carrier 

(portal bus) located on Spinner Bottom were not provided with sand." 

(Exh. G-2, Tr. 9). 

Inspector Wolfe issued Citation Nos. 1046753, 1046754 and 1046755 at 

the Maple Creek No. 1 Mine at approximately 8 a.m. on February 17, 1981. 

Citation No. 1046753 charges the Respondent with a violation of 30 C.F.R. 

§ 75.1403 in that "[t]he sanding devices provided for the number 10 personnel 

carrier (portal bus) located on Spinner Bottom were not being well maintained 

due to a lack of sand being provided for the two outby sanding devices." 

(Exh. G-3, Tr. 11). Citation No. 1046754 charges the Respondent with a 

236 
violation of 30 C.F.R. § 75.1403 in that "[t]he sanding devices provided for 

the number 12 personnel carrier (portal bus) located on Spinner Bottom were 

not being well maintained due to a lack of sand being provided for the inby 

and outby sanding devices on the wide side" (Exh. G-4, Tr. 11-12). Citation 

No. 1046755 charges the Respondent with a violation of 30 C.F.R. § 75.1403 

in that "(t]he sanding devices provided for the number 13 personnel carrier 

(portal bus) located on Spinner Bottom were not being well maintained due to 

a lack of sand being provided for the inby and outhy sanding devices on the 

wide side" (Exh. G-5, Tr. 12). 

30 C.F.R. § 75.1403 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." 

The five citations charge the Respondent with violations of 30 C.FoRo 

§ 75.1403 based upon the Respondent's alleged failure to comply with the 

requirements of Safeguard Notice 1 HB, which was issued at the Respbndent 1 s 

Maple Creek Noo 1 Mine on June 10, 19760 (Exh. G-6)0 1/ The Safeguard 

Notice imposes a requirement on the mine operator whereby vi(a]ll personnel 

carriers which transport more than 5 persons shall be equipped with a 

properly installed and well maintained sanding device in the mine." 

1_/ 30 G.F.R. § 75.1403-1 sets forth the following general criteria for the 

issuance of safeguard notices: 

"(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 § 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 

§ 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. 

(c) Nothing in the sections in the § 75.1403 series in this Subpart 0 

precludes the issuance of a withdrawal order because of imminent danger." 

Safeguard Notice No. 1 RB, June 10, 1976, was issued pursuant to the 

safeguard notice issuance guideline set forth at 30 C.F.R. § 75.1403-6(b)(3) 9 

(Exh. G-6, Tr. 15), which provides as follows: 

"(b) In addition, each track-mounted self-propelled personnel c?rrier 

should: 

* * * * * * * 

(3) Be equipped with properly installed and well-maintained sanding 

devices, except that personnel carriers (jitneys), which transport not more 

than 5 men, need not be equipped with such sanding device;" 

237 
The portal buses in question are electrically powered, track-mounted 

personnel carriers us~d to transport the miners to the section (Tr. 58). 

Each has the capacity to carry more than 5 people (Tr. 15, 42), and each is 

equipped with four sanding devices with reservoirs capable of holding 

approximately 20 to 25 pounds of sand (Tr. 37-38, 59). There are two sanding 

devices f9r the inby direction and two for the outby direction (Tr. 37-38), 

meaning that there is one sanding device for each of the four wheels 

(Tr. 58-59). 

The Maple Creek No. 1 Mine has approximately 20 to 25 miles of haulage 

which is set up as a dual haulage system with one track reserved for inbound 

traffic and one reserved for outbound traffic (Tr. 60). Sand stations are 

located at the portal bus station, along the haulage and in the sections 

along the flats (Tr. 59). 

The Respondent's program for replenishing the sand in the sanding 

devices requires the portal bus operator to check the sanders when he 

arrives at the portal bus station at the beginning of the shift. Normally~ 

this occurs before the personnel carriers are energized with electrical 

power (Tr. 61, 63). The buses are then used to transport the miners to 

their work place, and the personnel carriers remain parked underground until 

the end of the shift. At the end of the shift, but prior to restoring 

electrical power to the personnel carriers, the portal bus operator is 

again supposed to check the sanding devices for sand (Tro 63-64)0 If he 

runs out of sand during a run, he is required to replenish his sand supply 

at the next sanding station which he encounters (Tr. 65). 

Additionally, mechanics check the sanding devices between shifts to 

assure that they remain mechanically operational (Tr. 61-62). 

All of the citations were issued in the portal bus boarding area at the 

beginning of a shift at a point in time when the miners on the on-coming 

shift were preparing for transport to their work places. Although the 

citations were issued prior to the buses being put in motion (Tr. 27), all 

of the portal buses were ready and available for use (Tr. 15). There were 

no indications that the personnel carriers had been taken out of service 

for any reason (Tr. 15). Normally, the first 2 to 4 buses in line are used 

to transport the crews onto the section (Tr. 31). Additionally, the 

inspector testified that he did not give the portal bus operator or the 

on-coming shift an opportunity to determine whether there was sand in the 

sanders (Tr. 32-33). 

With respect to the two citations issued on February 11, 1981, the 

evidence shows that approximately 7 or 8 men were sitting in the portal bus. 

encompassed by Citation No. 1046741 (Tr. 10). The portal bus encompassed 

by Citation No. 1046742 was next in line, but there was no one aboard it. 

There was no one aboard the three portal buses encompassed by Citation 

Nos. 1046753, 1046754 and 1046755 at the precise point in time when the 

citations were issued on February 17, 1981 (Tr. 13). 

238 
There was no sand in the two outby sanders on the portal bus encompassed 

by Citation No. 1046753. With respect to the remaining four' citations, there 

was no sand in the inby and outby sanders on the wide side (Tr. 9-10, 13, 

17-18, 41-42). However, it appears that all of the sanding devices were 

mechanically operational (Tr. 27). 

The Petitioner argues, in substance, that a violation of the Safeguard 

Notice exists whenever a personnel carrier which transports more than five 

persons is in the mine, out of sand, and not tagged out of service because, 

while in such condition, the sanding devices are not being "well maintainerl." 

According to the Petitioner, the personnel carriers are available for use, 

even though not in motion., and are not being properly maintained· (Tr. 79). 

The Respondent concedes that a violation would have existed if the cited 

personnel carriers had departed the station with empty sanding deviceso 

However, the Respondent maintains that there will be occasions in the normal 

course of operation when the sanders will be empty, and argues that so long 

as it has and enforces a program to fill the sanders, and so long as sand 

is available for the sanders, no violation exists. The Respondent also argues 

that the Safeguard Notice requires only the presence of sanding devices 

capable of being used (Tr. 81-82). 

The subject Safeguard Notice requires all personnel carriers which 

transport more than five persons to be equipped with a properly installed 

an<l well maintained sanding deviceo A sanding device which does not contain 

sand at a time when such personnel carrier is in use cannot be considered 0 well maintained" within the meaning of the Safeguard Notice. Whenever a 

personnel carrier is available for use, as these were, it must be considered 

to be in use. See Eastern Associated Coal Corporation, 1 FMSHRC 1473, 1979 

CCH OSHD par. 23,980 (1979). Adrlitionally, the fact that the sanding devices 

must be well maintained at all times while in use indicates that the 

reservolrs should have been checked and refilled promptly when the personnel 

carriers returned to the station after the prior run. 

Furthermore, the requirements imposed on the Respondent by the Safeguard 

Notice are clearly applicable to all personnel carriers with the capacity to 

transport more than 5 persons. The fact that it may have been holding five, 

or fewer, persons when a given citation was issued is not a defense if it is 

capable of holding more than five persons. 

It should also be noted that the Respondent never proved that the sanding 

devices would, in fact, have been checked and refilled before the personnel 

carriers departed the station. The portal bus operators, the individuals 

assigned by the Respondent to perform this task, were never called by the 

Respondent to testify on this point. It is significant to note that 7 or 8 

men were aboard the portal bus cited in Citation No. 1046741 when such 

citation was issued. This indicates that it was at least possible that 

portal buses would have been operated with empty sanding devices. 

239 
The Respondent also sought to prove, through the testimony of assistant 

mine foreman Joseph G. Ritz, that the use of sand with respect to haulage 

equipMent presents certain hazards. He gave testimony indicating that 

excessive sand deposited on t~e rails can adversely affect proper grounding, 

presenting an electrocution hazard (Tr. 65-66, 75-77). 

- The use of sand to provide added traction for track-mounted haulage 

vehicles is a long standing practice in the mining industry. It is considered singularly inappropriate to entertain the Respondent's challenge to 

this long standing practice on the basis of the testimony of one witness who 

appears to have no specialized expertise in electrical matters. This issue 

was not raised by the Respondent in its answer, and there is no indication 

that the Petitioner was given any other form of notice that the Respondent 

wished to raise it in this proceeding. Considering the significance of the 

challenge to the safety of miners, the issue should have been specifically 

raised prior to the hearing so as to give the Petitioner adequate opportunity 

to prepare and present expert testimony in rebuttal. 

In view of the foregoing, I conclude that Citation Nos. 1046741, 

1046742, 1046753, 1046754 and 1046755 properly charge the Respondent with 

violations of Safeguard Notice 1 HB, June 10, 1976, and, hence, of 30 C.F.R. 

§ 75.1403. I find that the violations charged have been established by a 

preponderance of the evidence. 

C. Negligence of the Operator 

The record contains no probative evidence to estA.bli.sh either that the 

Respondent's supervisory personnel or that those persons designated by the 

Respondent to perform inspections or examinations required by law had actual 

or constructive knowledge of the violative condi.tions. Accordingly, I 

conclude that the Petitioner has failed to prove the mine operator's 

negligence by a preponderance of the evidence. 

D. Gravity of the Violation 

Properly installed and well maintained sanding devices provide additional traction for track-mounted personnel carriers when the need arises. 

They deposit sand on the rails, as the need arises, to provide additional 

friction between the wheels and the rails, providing traction when slick 

conditions are encountered and for sudden stops and starts (Tr. 18-19·, 

22-23, 37-39). Mr. Ritz testified that there are areas along the haulage 

which are "reasonably level" and areas that have "some degree" of slope 

(Tr. 60). 

The inspector testified that a haulage accident could result from a 

lack of sand, and that an occurrence of the event against which the cited 

standard is directed would be expected to result in broken bones, cuts, 

bruises, abrasions and/or concussions. Up to 10 people would have been 

affected by an occurrence (Tr. 44-45). 

240 
There was no hazard present so long as the portal buses remained 

stationary (Tr. 44, 53-54). However, there is no probative evidence in 

the record to establish the probability of occurrence had the portal buses 

been placed in motion with empty sanders. In this regard, the record contains 

only the inspector's speculation that "[i]t could well happen" (Tr. 44). 

To hold otherwise on the facts of this case would, in effect, require that 

official notice be taken that all violations of the type charged present 

a probability of occurrence classified as "probable," without regard to the 

particular conditions existing along the haulage. 

In view of the foregoing, it is found that the violations were of 

moderate gravity. 

E. Remaining Penalty Assessment Criteria 

Based upon the stipulations entered into by the parties~ I find: 

(1) that the Respondent demonstrated ordinary good faith and attained 

compliance after the issuance of each citation; (2) that the Respondent is 

a large operator; (3) that the Respondent's history of previous violations 

is moderate; and (4) that the assessment of the civil penalty in 

this proceeding will not affect the Respondent's ability to continue in 

business. 

Fo Significant and Substantial Criterion 

The inspector included findings on the face of each citation that the 

violations were of such nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or health hazard. His 

testimony indicates that the determination was based upon an application of 

the test set forth by the Interior Board of Mine Operations Appeals in 

Alabama By-Products Corporation, 7 IBMA 85, 94, 83 I.D. 574, 1 BNA MSHC 1484, 

1976-1977 CCR OSHD par. 21,298 (1976) (Tr. 50-51). This test was overruled 

by the Commission in National Gypsum Company, 3 FMSHRC 822, 2 BNA MSHC 1201~ 

1981 CCR OSHD par. 25,294 (1981), wherein it was held: 

[T]hat a violation is of such nature as could significantly 

and substantially contribute to the cause and effect of a 

mine safety or health hazard 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. 

3 FMSHRC at 825. Additionally, the Commission stated that: 

Although the [Federal Mine Safety and Health Act of 

1977] does not define the key terms "hazard" or 

"significantly and substantially," in this context we 

understand the word"hazard" to denote a measure of danger 

to safety- or health, and that a violation "significantly 

241 
and substantially" contributes to the cause and effect of a 

hazard if the violation could be a major cause of a danger 

to safety or health. In other words, the contribution to 

cause and effect must be significant and substantial. 

3 FMSHRC at 827. [Footnote omitted.] 

The inspector testified that he did not know, and that it "would be 

tough to say," whether he would have included such findings on the face of 

the citations under the "new policy." (Tr. 51). 

In view of the inspector's testimony on this point, and in view of the 

findings set forth in Part v-n of this decision, I conclude that the 

Petitioner has failed to prove that the violations were of such nature as 

could significantly and substantially contribute to the cause and effect of 

a mine safety or health hazard under the test set forth in National Gypsumo 

VI. Penalty Assessed 

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of civil 

penalties is warranted as follows: 

30 C.F .Ro 

Citation No. Date Standard Penalty 

1046741 2/11/81 75.1403 $50 

1046742 2/11/81 75.1403 50 

1046753 2/17/81 75.1403 50 

1046754 2/17/81 75.1403 50 

1046755 2/17/81 75.1403 50 

ORDER 

Accordingly, IT IS ORDERED that Citation Nos. 1046741, 1046742~ 1046753, 

1046754 and 1046755 be, and hereby are, MODIFIED to delete the issuing 

inspector's findings that the cited violations were of such nature as could 

significantly and substantially contribute to the cause and effect of a mine 

safety or health hazard. 

IT IS FURTHER ORDERED that the Respondent pay civil penalties totaling 

$250 within 30 days of the date of this decision. 

242 

Forrest F,. Stewart 

Administrative Law Judge 
Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

Louise Q. Symons, Esq., United States Steel Corporation, 600 Grant 

Street, Pittsburgh, PA 15230 (Certified Mail) 

243 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

fEB 4 \982 

) 

C F & I STEEL CORPORATION, ) 

) 

Contestant, ) 

) 

v. ) 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~-

CONTEST OF CITATION PROCEEDING 

DOCKET NO. WEST 80-384-R 

Order No. 827062; 6/12/80 

MINE: Allen 

DECISION AND ORDER 

Appearances: 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

llOO United Bank Center 

Denver, Colorado 80290 

For the Contestant 

James H. Barkley, Esq. 

Office of the Sol itor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

Pursuant to Section 105 of the Federal Mine Safety and Health Act of 

1977, (hereinafter the "Act") Contestant applied for review of Withdrawal 

Order No. 827062, dated June 12, 1980, alleging that no unwarrantable 

failure to comply with a mandatory health and safety standard occurred. 

The underlined mandatory standard was 30 C.F.R. 75.301. That regulation 

provides in pertinent part: "All active workings shall be ventilated by a 

current of air ... The minimum quantity of air reaching the last open 

crosscut in any pair or set of developing entries ... shall be 9,000 cubic 

feet a minute •.•. 

Respondent answered that the order was properly issued and that 

failure of contestant to maintain the required minimum amount of air in the 

last open crosscut constituted a violation of 30 C.F.R. 75.301, as alleged 

in the Order of Withdrawal. 

244 
Findings of Fact 

1. While conducting an inspection of contestant's Allen Coal Mine on 

June 12, 1980, an MSHA inspector took air flow samples in the last open 

crosscut in one section of the mine. There were six entries 'into the 

section of the mine which was inspected. 

2. The MSHA inspector measured air flow in the last open crosscut 

between the No. 5 and No. 6 entries as 6,552 cubic feet a minute (hereinafter "cfm"). Between entry No. 1 and No. 2 in the last open crosscut no 

perceptible air movement could be detected. 

3. Immediately outby the last open crosscut there was a brattice 

curtain across the No. 1 entry. The only opening in the curtain through 

which air could pass was a ventilating tube 18 inches in diameter which ran 

along the left rib of the No. 1 entry, then through the brattice curtain 

with the opening of the ventilating tube ending near the working face at 

the end of No. 1 entry. 

4. At the time of the inspection, 12:20 a.m., there was no mining of 

coal taking place in the section. 

5. At the end of the production swing shift just prior to the time of 

the inspection, air flow in the sect ion was 25, 200 cfm and no methane gas 

was present. 

6. During the idle shift maintenance is performed at the mine, and at 

the time of the inspection the mainenance shift personnel were on their way 

to the mine. _The MSHA inspector prevented the maintenance shift from going 

into the section inspected by posting a closure sign and issuing Withdrawal 

Order No. 827062. 

7. On two previous maintenance shifts within two days prior to the 

inspection in this section of the mine, the pre-shift examiner had recorded 

that methane ~as in excess of 5% was present in that section of the mine. 

Issues 

1. Did the contestant violate 30 C.F.R. 75.301 relating to the amount 

of air required at the last open crosscut on June 12, 1980? 

2. If contestant did violate 30 C.F.R. 75.301, was the violation the 

result of an unwarrantable failure on the part of the contestant to comply 

with such regulation? 

Discussion 

The cited regulation requires that in all active workings the minimum 

quantity of air reaching the last open crosscut shall be 9,000 cfm. 

The air flow measurements as recorded by the MSHA inspector in the last 

open crosscut are not disputed by Contestant. Thus, there was a violation 

of 30 C.F.R. 75.301 as alleged in the Withdrawal Order if the areas covered 

were "active workings." 

245 
Contestant contends that the 9,000 cfm requirement at the last open 

crosscut does not apply to idle areas of the mine where coal is not being 

cut, mined or loaded, and no other work is taking place. Specifically, 

Contestant argues that the area where the measurements were taken were not 

in "active workings" of the mine. Contestant also contends that its 

approved ventilation plan calls' for idle working places, work faces where 

roof· bolting is done, and deadended entries will be ventilated by a 

perceptible movement of air. There is no requirement in the plan for 9,000 

cfm in the last open crosscut with respect to idle sections. 

Contestant argues that 9,000 cfm of air is required in the last open 

crosscut in order to ensure that a minimum of 3,000 cfm reaches the working 

face. Since no coal was being cut, mined or loaded, the workings were not 

"active" but were idle, and idle working faces need only a perceptible 

movement of air to be in compliance with the approved ventilation plan, 

"Active workings" are defined as "all places in a mine that a.re 

ventilated and inspected regularly." U.S. Department of the Interior, 

Buteau of Mines, a dictionary of Mining, Mineral and Related Terms. Page 

11 0 968), No mention is made in the definition that there· must be product ion of the mineral in order for there to be "active workings". 

During the idle shift at the Allen Mine, the maintenance personnel 

come on duty. These miners are not producing coal, but are engaged in 

maintenance activity, Contestant is attempting to draw too narrow of a 

distinction in defining "active· workings", The working activity taking 

place in the section inspected consisted of production shifts, and maintenance or idle shifts. Since this section was ventilated and inspected 

regularly, it must be classified as "active workings". The last open 

crosscut did not have the flow of air required by the cited regulation. 

Therefore, my conclusion is that there was a violation of 30 C.F.R. 

75.301 by the Contestant. 

The next question is whether or not the violation was a result of an 

unwarrantable failure of contestant to comply with the regulation. 

Specifically, did the contestant intentionally or knowingly fail to comply 

with the regulation or demonstrate a reckless disregard for the health or 

safety of the miners? Itmann Coal Company v. The Secretary of Labor, Mine 

Safety, and Health Administration (MSHA), 2 MSHC 1277 (1981). 

The MSHA inspector testified that Contestant failed to provide 

adequate ventilation to the working section even though there was a known 

possibility of the accumulation of excessive methane gas to an explosive 

level. The two previous pre-shift reports for the maintenance or idle 

shift showed the presence of methane gas of approximately 5%. These 

reports were for the two days preceding the date the withdrawal order was 

issued. However at the end of the production swing shift just prior to 

the maintenance or idle shift during which the inspection took place, there 

was no methane present. 

The MSHA inspector testified that at the time of the violation the air 

that should have been going to the last open crosscut from No .. 2 to No. 1 

246 
entries had no means to travel other than through the 18 inch ventilattng 

tube, because the balance of the entry was partitioned off with the 

brattice curtain. In checking further the inspector found that there was 

no movement of air on either side of the curtain. He gave his opinion that 

because there was no movement of air into the area, the 18 inch ventilating 

tube was ineffective as an exhaust. He further stated that it was not 

sound mining practice to cut off ventilation in areas of known methane 

accumulation. 

The contestant's section foreman informed the MSHA inspector that the 

brattice curtain was installed in order to keep the working face of the No, 

1 entry, immediately inby where the brattice was erected, clear of methane 

gas by use of the 18 inch ventilating tubeo The section foreman felt that 

this procedure was sufficient to accomplish the jobo The 18 inch 

ventilating tube was intended to be used to carry return air, With this 

explanation by contestant's section foreman, it is apparent that contestant 

was attempting to keep the working face at the end of No, 1 entry free of 

methane during the idle or maintenance shift, When the MSHA inspector was 

asked whether there was any accumulation of methane gas in the section 

between the time the withdrawal order was issued and seven and a half hours 

later when the withdrawal order was terminated, he stated "not to my knowledge." 

Contestant points out that the approved ventilation plan 

idle working faces will be ventilated by a preceptible movement , and 

that tubing in conjunction with line brattice is used to provide 

ventilation of the working face and no auxillary fans are operated during 

idle shifts. Contestant was perfon:μing in accordance with this sect ion of 

the ventilation plan. However, the plan also calls for a minimum quantity 

of 9,000 cfm of air flow reaching the last open crosscut, the same 

provision as the cited regulation. 

The evidence does not show that contestant intentionally or knowingly 

failed to comply with the regulation in question. The section foreman's 

report prepared at the end of the shift immediately preceding the issuance 

of the withdrawal order showed that there was no methane gas present, and 

the air flow was 25,200 cfm. During the idle shift contestant was attempting to ventilate the section in which the brattice line and 

ventilating tube had been installed. The evidence shows that there was no 

accumulation of methane between the time the order was written and seven 

and a half hours later when it was vacated. Since these actions took place 

I cannot find that contestant exhibited a reckless disregard for the health 

or safety of the miners. 

I find contestant's evidence credible in that contestant believed that 

because there was an idle shift period in the idle section, the contestant 

was in compliance with its approved ventilation control plan by merely 

providing a preceptible movement of air at the working face, I also find 

that this was the reason that contestant believed that 9,000 cfm of air 

would not have been a requirement in the last open crosscut of the idle 

section. I have already concluded that the section was "active workings", 

but contestant did not have the benefit of that conclusion on the date the 

withdrawal order was issued. 

247 
Consequently, I find that there was a violation of 30 C.F.R. 75.301, 

but that the violation did not result from an unwarrantable failure of the 

operator to comply with that regulation. 

ORDER 

Insofar as Withdrawal Order No. 827062 finds that the violation of 30 

C.F.R. 75.301 resulted from an unwarrantable failure of contestant to 

comply with that regulation, the Order, is VACATED. The allegation of a 

violation 30 C.F.R. 75.301 along with the Withdrawal Order is AFFIRMED. 

Distribution: 

Phillip D. Barber, Esq, 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver~ Colorado 80290 

James H. Barkley~ Esq. 

Office of the Solicitor 

,:Jon , i;'Bolt=Z · / :J 1 Administrative Law Judge 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

248 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

.DONALD L. LUND, 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80Z04 

fEB 4 1982 

Complainant, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

v. DOCKET NO. WEST 81-193-DM 

ANAMAX MINING COMP ANY, 

Respondent. 

~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Donald L. Lund, appearing Pro Se 

Tucson, Arizona 

Steven Weatherspoon, Esq., Chandler, Tullar, 

Udall & Redhair, Tucson, Arizona, appearing for Respondent 

Before: Judge John J, Morris 

DECISION 

STATEMENT OF THE CASE 

Complainant Donald Lund brings this action on his own behalf alleging 

he was discriminated against by his employer, Anamax Mining Company, 

(Anamax), in violation of the Federal Mine Safety and Health Act of 1977, 

30 U • S . C . § . 801 ~ seq • 

The statutory provision, Section 105(c)(l) of the Act, now codified at 

30 U.S.C. 815(c)(l), provides as follows: 

§ 105(c)(l) No person shall discharge or in any manner discr1m1nate against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory 

rights of any miner, representative of miner~ or applicant for 

employment in any coal or other mine subject to this Act because 

such miner, representative of miners or applicant for employment 

has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator's agent, 

or the representative of the miners at the coal or other mine of an 
alleged danger or safety or health violation in a coal or 

other mine, or because such miner, representative of miners 

or applicant for employment is the subject of medical evaluations 

and potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners or 

applicant for employment has. instituted or caused to be instituted any proceeding under or related to this Act or has 

testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or 

applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act. 

After notice to the parties, a hearing on the merits was held in 

Tucson, Arizona on August 25-27, 1981. The parties filed post 

briefs, 

PRE-TRIAL MATTERS 

A pre-trial hearing was held in this case in Tucson, Arizona on July 

14, 1981. At the hearing, the Commission's procedures were explained to 

the parties as well as the applicable case law as set forth in David Pasula 

v. Consolidation Coal Company, 2 FMSHRC 2786 (1980), rev 1 d on other 

grounds, No. 80-2600 (3d Cir, October 30, 1981). 

At the prehearing conference complainant Donald Lund (Lund) indicateci 

his case involved some 20 instances of discriminaiion (Tr. 15, 24 70, 

Pre-Hearing), The Judge and the parties discussed discovery, the of 

an amended complaint, and a trial date of September 29, 1981. Various 

other matters relating to the hearing were discussed. Lund asserted that 

the acts of discrimination by Anamax were continuing. However, since it 

was necessary to bring the case to issue an oral order was entered to the 

effect that only claims of discrimination that had occurred before the 

previous day (July 13, 1981) would be considered (Tr. 29, Pre-Hearing). On 

July 31, 1981, Lund filed his amended complaint alleging thirty-six 

instances of discrimination. 

On July 20, 1981, Lund filed a letter with the Commission stating that 

a fellow worker, whom he identified by name, stated to Lund on Anamax 

property, among other things, "If you close this mine down I'm going to get 

my .357 and shoot you." 

A copy of Lund's letter with a general explanation of the nature of 

the case was forwarded to A. Bates Butler, then the United States Attorney 

in Tucson, Arizona. Copies of this correspondence were forwarded to Lund, 

the MSHA office in Tucson, counsel for respondent, and the Connnission's 

Chief Judge, James A. Broderick. 

The allegations in Lund's letter occurred after July 13, 1981 and any 

issues arising out of that incident are not considered in this decision. 

250 
ISSUES 

The issues are whether Anamax discriminat.ed against Lund and thereby 

violated the Act. 

APPLICABLE CASE LAW 

The Cormnission has ruled that to establish a prima facie case for a 

violation of § lOS(c)(l) of the Act a complainant must show by a preponderance of the evidence that (1) he engaged in a protected activity and 

(2) that the adverse action was motivated in any part by the protected 

activity. The employer may affirmatively defend, however, by proving by a 

preponderance of all the evidence that, although part of his motive was 

unlawful, (1) he was also motivated by the miner's unprotected activities~ 

and (2) that he would have taken adverse action against the miner in any 

event for the unprotected activities alone, David Pasula, supra. Further, 

in order to support a valid refusal to work the miner 1 s perception of the 

hazard must be reason~ble. Robinette v. United Castle Coal Company 3 

FMSHRC 803, (1981). In Johnny Chacon v. Phelps Dodge Corporation WEST 

79-349-DM (November 13, 1981) the Commission analyzed some of the 

circumstantial indicia of discriminatory intent. 

SYNOPSIS OF THE CASE 

Lund asserts that he gave a statement concerning an unsafe condition 

on a power shovel to the Anamax safety department and was, thereafter, the 

subject of retaliatory conduct by Anamax for engaging in that protected 

activity. The alleged retaliation suffered by Lund consists of the 

fol lowing claims: he was ordered to work under unsafe conditions; he was 

threatened; he was verbally abused; he was issued letters of discipline; he 

was unjustifiably charged with absences from his job; and other miscellaneous actions by Anamax. Lund complains about thirty-six instances of 

alleged retaliation. Additionally, it appears from the transcript of the 

hearing that Lund claims that when Anamax failed to provide him a safe work 

place, and he argues that, in and of itself, this constituted discrimination. 

Lund's last claim has no support under the Act. The failure to 

provide a miner with a safe workplace may constitute a violation of a 

mandatory health or safety standard and thereby be a violation under the 

Act, but such a failure does not without more constitute discrimination. 

An act of discrimination under the Act occurs only When a mine operator 

takes adverse action against a miner because the miner has engaged in an 

activity that is protected by the Act. Pasula, supra. 

Lund's contention that all thirty-six instances of alleged adverse 

action occurred because Anamax was retaliating against him for the 

statement he gave concerning the power shovel incident is not supported by 

the record. Lund's statement and the various other safety complaints 

voiced by him were protected activity. However, Lund either failed to 

establish a connection between these thirty-six incidents and the protected 

activity. or the incident itself cannot be considered to be adverse action. 

In short, Lund does not show that Anamax retaliated against him for any 

protected activity. 

251 
This decision initially analyzes the power shovel incident and then 

the various acts of discrimination as set forth in the amended complaint. 

In each of the instances of alleged discrimination the decision sets out 

the allegation followed by the findings of fact and a discussion. 

Occasionally controverted facts appear and they are identified as such in 

the discussion portion of the incident. 

Various management supervisors were involved with Donald Lund i.n thE~ 

various aspects of his case. 

Lund, an Anamax welder, worked in the weld shop. His direct supervision in the weld shop included: 

Dayton Miller 

Jerry Hyder 

additional supervisors included: 

Tony Rael, assistant superintendent 

Robert Nelson, superintendent 

Lui1d 1 s welding duties also took him to various other Anarnax 

departments. While in those other departments he would be under the 

directions of other supervisors. These included the following: 

Bi 11 Bissell 

Maderas, Bissel's supervisor 

Marshall Foster, front line supervisor 

Keppner, supervisor 

Rudolfo Ypulong, front line supervisor in electrical parts 

department 

Hassell Logan, superintendent, conveyors 

Shelley, shovel superintendent 

Justin "Red" Taylor, supervisor 

Bissell was terminated by Anamax a few months before the trial because 

"he was not an adequate supervisor" (Tr. 805). Maderas and Keppner 

resigned in protest of Bissell being discharged. Also involved in portions 

of Lund's case are: 

Paul Weathers, se~urity guard 

Charles Bishop, plant protection and Emergency Medical 

Technician 

Persons 1n Anamax's safety department include: 

Gerald Johnson, Director of Loss Prevention 

John Caylor, Manager of safety and health under Johnson's 

supervision 

POWER SHOVEL INCIDENT 

Witness: Lund, P.ij anowski, Johnson, and DeAnda. 

252 
1. Donald Lund had been employ 0 d as a welder by Anamax since November 

1979 (Tr. 124). 

2. On April 25, 1980, the S-10 shovel shorted out due to a ground 

fault on the 4160 volt circuit. Foreman Bill Bissell was told by 

electrician Richardson to keep personnel off the shovel, but Bissell 

nevertheless directed 5 men to work on the shovel (Exhibit P-3). 

3. The seven members of the shovel crew filed an employee complaint 

with the Joint Health and Safety Corrnnittee. Robert Snyder, as the Teamster 

union stewart, filled out the complaint. All members of the crew signed 

the complaint (Tr. 57, 61-62, 387, P-3). 

4. Lund was in the manbasket preparing to repair the shovel; if there 

had been a short he could have been electrocuted when the power was turned 

on_:_t (Tr. 55). 

5. Worker DeAnda and al 1 of the members of the crew were interviewed 

by the Joint Safety Committee which consisted of Arno Gates (for 

management) and Walter Yturralde (for the union) (Tr. 57, 58, P-3). 

6. The Joint Safety Committee is provided by contract between Anamax 

and the workers. Under the contract an employee is to report an unsafe 

condition to his supervisor. If they do not agree the worker has a right 

to relief from his job and he may return on the next shift without discipline. If the right is exercised there is an automatic invest ation by 

the Joint Safety and Health Committee which consists of an equal number of 

representatives for management and the union. If the individual's actions 

are found to be justified he'll be paid for the time he was off the job 

{Tr. 503, 504). 

In this instance the Connnittee report outlined the power shovel 

dispute, made recommendations, and concluded that there could have been a 

communication problem between Richardson (electrician) and Bissell (foreman). Further, the Committee concluded that the two men working on the 

tracks and the welder working on the boom out of the bucket could have been 

hurt when power was restored if there still had been a short in this 

machine. Fortunately, this did not happen because there was no power due 

to faulty circuits. Also the high voltage fuses had blown. 

8. Worker DeAnda, a member of the crew, was not treated any 

differently after the shovel incident than before (Tr. 61), 

9. Within one or two weeks after the incident, about April 1, 1980, 

Lund went to the Anamax safety office and gave a statement to Gerald 

Johnson, Anamax's Director of Loss Prevention. Lund volunteered to give 

the statement because the company had not disciplined anyone as a result of 

the shovel incident (Tr. 390-391, 774). 

1/ Apparently the crew did not walk off of the job nor resume work. While 

the crew discussed the problem with Bissell the electrician arrived (Tr, 

54). 

253 
10. Gates and Yturralde were present in the safety office when Lund's 

statement was taped (Tr. 393). 

11. Lund declined the company's offer of a copy of the tapes or a 

transcription of his statment at that time (Tr. 397). 

12. Johnson testified that Lund requested that the tape be played by 

Johnson for "the powers that be" and it was (Tr. 778). 

13. According to Johnson he played Lund's tape for Pijanowski (Vice 

President, Personnel, Johnson's superior); for the shovel and drill crew 

management comprising of Kepner, Maderas, and Bissell; also he played it 

for Rosson, maintenance superintendent, as well as some for the Anamax 

Legai Department (Tr. 805-806). 

Lund is correct when he states that his activities in reporting to the 

Anamax safety department were protected under § 105(c) of the Act, However, at this point no retaliatory moves had been made by Anamax. If there 

is no discriminatory retaliation there is no violation of the Act, It is 

accordingly necessary to review the subsequent events. 

I 

TIPPING FRAME 1NCIDENT2/ 

14, Lund was dispatched out of the weld shop to work on a drilling rig 

(Tr. 134-135, P-7). 

15. A portion, or about half, of the area where the drilling rig was 

situated had been blasted (Tr. 135-136). 

16. As Lund was welding underneath the outrigger the pad behind him 

rose and because of the loose ground the drill started to tip over (Tr. 

136-139). 

17. At th is point Maderas (Bissell' s supervisor) drove up, and 

started hollering. The mechanics immediately told Lund to get out from 

under the drill (Tr. 138, 139). 

18. Foreman Bissell was at the site before the drill started to tip 

over (Tr. 399). 

Lund's theory here is that he was discriminated against because he was 

told to work in a situation which proved to be unsafe. The Act and its 

legislative history do not support Lund's theory of the case. 

Discrimination occurs when a mine operator retaliates against a miner 

because the miner engaged in a protected activity. 

2/ Paragraph 1 of the amended complaint. 

254 
II 

USE. OF WELDING TRUCK WITHOUT BACKUP AIJARM 2J 

Witnesses: Lund, Miller, Ypulong, Johnson. 

19. Two or three weeks after his statement was taped, Lund's duties 

required him to use a truck (Tr. 140-145, P-8, P-9). 

20. The truck did not have a backup alarm. When he discussed the 

problem with his foreman (Ypulong) he was told to take the truck, be 

·careful, and tag it out when he returned (Tr. 146, P-10). 

21. Foreman Dayton Miller arrived at 6:30 for the 7:00 0 1 clock 

shift, He was hostile and mad and he told Lund he could receive a safety 

warning letter 4/ for taking the truck (Tr. 147, 148), 

22. ·No one had ever been issued a safety warning letter for using a 

truck without a backup alarm (Tr, 148), 

23. Lund did not receive a safety warning letter (Tr, 148, 410). 

24 •' When Lund complained to Johnson about Miller 1 s threat of issuing 

a safety warning let.ter Johnson checked the truck 1 s records. The records 

showed the truck was in "rebuild" until the shift before Lund used it (Tr, 

786). 

3/ Paragraph 2 of amended complaint. 

4/ The Safety Warning Letter finds its basis in Anamax's 54 page rule book 

which provides, in part, as follows: 

SAFETY WARNING LETTERS 

Safety Warning Letters will be issued to cover infractions of Anamax 

Safety Rules, federal, state and local health and safety laws. 

FIRST LETTER: Warning (See next paragraph) 

SECOND LETTER: Mandatory minimum three days suspension. 

THIRD LETTER: Mandatory termination, if issued with 12 month 

period (Not calendar year.) 

The seriousness of the infraction will determine the degree of 

corrective action taken, ranging from the above specified standards to 

termination for either the first or second letter issued. (Exhibit P-18, 

R-2). 

255 
25. Johnson further told Lund he should have received a safety 

warning letter (Tr. 784). 

26. The truck also lacked a whip light (similar to an off of the road 

antennae). 

27. Lund told Miller he considered that the threat of the issuance of 

a safety letter was retaliation for his taped testimony. Miller denied 

that (Tr. 148). 

28. Miller treated Lund the same as any other worker, and he told him 

if he checked out a similar truck in the future someone would give him a 

safety warning letter (Tr, 696), 

It is not necessary for this decision to consider whether the events 

here constitute a violation of le 30, Code of Federal lations, 

Section 55.9-87, or the same regulation at Section 56.9-87. The MSHA 

mandatory standard provides as follows: 

Mandatory. Heavy duty mobile equipment shall be 

provided with audible warning devices. When the operator 

of such equipment has an obstructed view to the rear, the 

equipment shall have either an automatic reverse signal 

alarm which is audible above the surrounding noise level :ir 

an observer to signal when it is safe to back up, 

No evidence supports Lund's conclusion that the threat of the issuance 

of a safety warning letter was in retaliation for his taped statement to 

the safety department. Miller's statements to Lund occurred immediately 

upon his discovery of the use of the truck. Johnson, the director of loss 

prevention, thought such a letter should have been issued. This evidence 

supports the view that Miller's anger was genuine and not related to 

Lund's protected activity. 

Lund claimed the truck had been used by 12 shifts, or 12 people, 

before he used it but I accept Johnson's testimony because he checked the 

truck 1 s records. These records indicated the truck was in "rebuild" until 

the shift before Lund used it (Tr. 785, 786). 

A safety warning letter generally is issued by a foreman and such a 

letter is not unusual. Approximately 50 such letters were issued in the 

last 12 months (Tr. 806-807). The issuance of a safety warning letter or 

the legitimate threat of the issuance of such a letter, as in this 

situation, is a prope~ management device. 

III 

FOREMAN RAEL REPRIMANDS LUND FOR NOT 

GOING THROUGH THE CHAIN OF COMMANDS/ 

Witnesses: Lund, Rael 

5/ Paragraph 3 of the amended complaint. 

256 
29. Immediately after Lund concluded his discussion with Dayton 

Miller (in II) he left. ·He walked about 200 feet and met Tony Rael, 

Miller's supervisor. Rael asked Lund why he went around the chain of 

command and shot his mouth off to Johnson. Furthermore, why hadn't he 

notified Rael if he had a problem (Tr. 150-152). 

30. Rael told Lund it was company procedure for a worker to go to his 

superintendent with a safety problem. He further explained that if the 

worker did not obtain relief, (as from foreman Miller), he could go to the 

next senior supervisor (to Rael), or to Rosson, and right on up (Tr. 524, 

525). 

31. Lund told Rael the three page handwritten statement concerning 

the shovel incident was on Rael's desk. Rael said he hadn°t seen it. Lund 

said he was upset and Rael said to write out or write a book (Tr. 

151-152). 

32. Lund and Rael also discussed the· backup alarm. When he was asked 

to elaborate Rael said that weld trucks didn 1 t need a backup alarm (Tr. 

152). 

33. Lund asked about various safety matters and Rael didn't have the 

answers (Tr. 152). 

Lund, in rebuttal, asserts that Rael's testimony is only correct 

insofar as he spoke about workers through the chain of command (Tc., 

835). 

Lund's rebuttal testimony is not further discussed at the hearing or 

in his post trial motion. I assume he complaining about Rael's 

characterization that he did not reprimand Lund which conflicts with Lund's 

statement that he was reprimanded. In any event such testimony of each 

witness is conclusory in nature and it necessary to look to the actual 

statments of each of the participants. 

Reprimand, according to Webster!!_/ means "a severe or formal 

reproof", or "to reprove sharply or censure formally usually from a 

position of authority." In the latter sense Rael did censure Lund. 

However, the uncontroverted evidence is that it is company policy for a 

worker with a safety complaint to first complain to his immediate superVLsor. If the situation is not relieved then the worker goes to the second 

6/ Webster's New Collegiate Dictionary, 1979. 

257 
tier supervisor (such as Rael or Nelson) (Tr. 608-611). Rael and Nelson, 

the second tier supervisors, both indicated that Lund had never come to 

them with a safety complaint (Tr. 525, 610). The purpose of a worker first 

going to his immediate supervisor with a safety complaint is to give that 

supervisor an opportunity to correct the condition (Tr. 524J. While Lund's 

explanation is that he went to Johnson's safety department because he was 

unable to accomplish anything at the lower level (Tr. 525), I conclude Rael 

had a legal right to reprimand Lund for not following the company 

procedure. 

Rael had been told by the supervisors that Lund was argumentative and 

going to the safety department to register complaints rather than routing 

them through the line supervisors (Tr. 524). The absence of Lund at the 

safety department presented scheduling problems for Rael (Tr. 527). 

There are three avenues a safety complaint can go at Anamax. These 

are the Joint Safety and Health Committee; a complaint lodged with the 

supervisor and up the chain of command; and a complaint lodged directly 

with the safety department. In short, I conclude that Rael had a 

right to reprimand Lund. Cf Chacon v. Phelps Dodge Corporation, WEST 

79-349-DM (November 13, 1981). 

IV 

ROSSON THREATENS LUND WITH SAFETY LETTER7/ 

Witnesses: Lund, Johnson 

The events here are a sequel and they occurred on the same morning 

that Miller threatened to issue the safety warning letter for no backup 

alarm in II, and the conversation with Rael in III (Tr. 155-158). 

34. Lund went to Johnson's office to report the situation (Tr. 

155-158). 

35. Lund related to Johnson his conversation with Miller and Rael. 

Johnson said he'd take care of it (Tr. 156). 

36. Rosson (management) talked to Johnson over the telephone while 

Lund was in Johnson's office (Tr. 413). 

7/ Paragraph 4 of the amended complaint. 

258 
37. Lund couldn't hear Rosson t1lking to Johnson but Lund said he'd 

take a safety letter if one was issued to every welder and foreman who took 

the truck as well as those who assembled it without the alarm (Tr. 

414-415). 

38. Rosson didn't talk to Lund personally (Tr. 158). 

39. Johnson didn't recall talking to Rosson over the phone about 

whether Lund should get a safety letter (Tr. 786-787). 

Lund claims Rosson threatened the issuance of a safety warning letter 

while he (Rosson) talked to Johnson. Lund didn't hear the conversation nor 

did he talk to Rosson. Johnson doesn't recall the conversation. I 

cone l ude there is no bas is in fact for the allegation since there is no 

showing how such a threat was ever conveyed to Lund. The proof of this 

allegation fails. 

v 

RUPTURED FUEL TANK ON WELDING MACH1NE8/ 

Witness: Lund 

40. Right after lunch, (on an unstated date)~ Lund found a split 

seam on his gas tank, The seam crack had a hole in (Tr. 158-163 9 424). 

41. Raw gasoline was running into the armature (Tr. 161). 

42. When he found this situation Lund rolled up his gear and pulled 

away (Tr. 161) • 

43. Within 5 to 15 minutes foreman Bissell appeared. He refused 

Lund's request for the water truck to wash down the gasoline (Tr. 162). 

44. Bissell told Lund to return the truck and get another. Lund was 

concerned about the 20 gallons of gasoline in the welder and 26 gallons of 

gas in the tank of the truck (Tr. 162). 

45. Lund didn't see anyone puncture the tank (Tr. 424). 

46. Bissell said he'd assume responsibility for fire, which did not 

occur (Tr. 162, 430). 

Lund alleges that someone punctured the tank (Tr. 424). At the time 

of this incident, Lund thought he was "being hunted", but he didn't write 

on his equipment defect report that someone had punctured the tank because 

he wanted to "catch them" (Tr. 426, 428). There is no evidence to support 

Lund's view that some person or some person on behalf of Anamax was 

"hunting him." 

8/ Paragraph 5 of amended complaint. 

259 
Lund is entitled to think whatever he wants, but on the basis of the 

evidence I conclude that, at best, he was required to return a truck that 

was leaking gasoline. As previously discussed in paragraph I these 

activities do not constitute discrimination under the Act. Lund would have 

been justified in refusing to drive the truck under the conditions he 

described, but his evidence does not support a claim of discrimination. 

VI 

RYDER'S STATES "I DON'T GET MAD, I GET EVEN119 / 

Witnesses: Lund, Hyder 

47. Two to three weeks after he made the tape concerning the power 

shovel incident, a remark brought up the subject and Lund asked his direct 

weld shop foreman, Jerry Hyder, if he had any hard feelings (about the 

tape), 

480 Ryder's reply was "I don't get mad~ I Just get even. 11 

49. Hyder hasn't done anything to "get even" (Tr, 432), 

50. Hyder explained that there was something said about a person 

getting mad hence the nature of his answer to Lund (Tr. 765). 

51, Ryder's statement was made in a joking manner (Tr. 765, 766), 

52. Hyder knew about the tape recording (Tr. 766). 

According to Webster's New Collegiate Dictionary a threat is defined 

as 1: 11 an indication of something pending [the air held a-- of. rain] 2: an 

expression of intention to inflict evil, injury, or damage 3: something 

that threatens. 11 

Lund indicated that it didn't appear to him that Hyder was joking and 

"he sure didn't smile" (Tr. 165). I find Ryder's view that his statement 

was made in a joking manner is more credible. By it's very nature Ryder's 

reply requires a touch of solemnity. Further, in finding this a mere 

exchange between the parties I note that Hyder never did 11 get even." He 

certainly had the opportunity since he was Lund 1 s direct weld foreman and 

responsible for the safety equipment on the truck (Tr. 163, 164). 

VII 

ATTEMPTED DISMISSAL OF LUND BY BISSELL ]!}__/ 

Witnesses: Lund, Hyder, Johnson 

9/ Paragraph 6 of the amended complaint. 

10/ Paragraph 7 of amended complaint. 

260 
53. On a workday during the last t.wo weeks in July, Lund was dispatched to work on a shovel for Bissell (Tr. 168). 

54. Lund cut off a catwalk and had laid out material to construct a 

new one (Tr. 173, 434, P-13, P-14, P-15). 

55, Bissell arrived and told Lund to modify the- old catwalk and put 

it .back (Tr. 174). 

56. A heated argument ensued (Tr. 174). 

57. Lund refused to build the catwalk the way Bissell wanted it (Tr. 

174) 0 

58. Lund told Bissell if he wanted to take him "to the gate 11 he'd 

have to get some security guards (Tr. 175). 

59. Lund was upset and when Bissell returned without any guards Lund 

~aid he was sick (Tr. 175). 

60. Lund went to the guard shack and called Gerald Johnson in the 

safety department (Tr. 177). 

61. Johnson appeared, investigated the incident~ and said there was a 

misunderstanding over Lund 1 s work attitude (Tr. 788). 

62. Hyder initially marked Lund's time card to indicate he was being 

sent home for disciplinary action but later, because of Johnson, he changed 

it to show that Lund went home "sick" (Tr. 768, 769), 

61. Lund was not disciplined nor fired as a result of this incident 

(Tr. 178, 179). 

64. A front line superintendent (such as Bissell) has no authority to 

dismiss an hourly employee (Tr. 787). 

Lund's theory in this incident is that discrimination occurred when 

Bissell refused to listen to Lund's reasons why Bissell was wrong in his 

instruct ions. Bissell. told Lund to do the job the way he (Bissell) wanted 

it done (Tr. 435). 

An hourly employee does not have a right to direct a supervisor in an 

area within the supervisor's authority. However, Lund's testimony is 

considered a general complaint of a supervisor's directive that could 

result in an unsafe condition. As such the complaint is a protected 

activity. Lund's evidence shows a type of catwalk construction done 

incorrectly (Tr. 169, P-13) and one done correctly with a center splice 

(Tr. 169, P-14), However, while the record favorably supports Lund's 

ability as a craftsman, I am unable to perceive from the evidence whether 

Lund's claim of an unsafe condition is reasonable, The Commission has 

required that to support a refusal to work a miner's perception of the 

unsafe condition must be reasonable. Robinette, supra. In this situati~n 

it is not possible to tell whether the argument between Lund and Bissell 

was over the asthetics of the catwalk or over a unsafe condition that might 

261 
arise if Bissell's instructions were followed. Inasmuch as the reasonableness of Lund's perception is not shown it follows that this claim of 

discrimination cannot be sustained. Further, I find the action attempted 

by Bissell was unrelated to any protected activity. It is apparent that 

the argument was over who would be "boss", :(..und or Bissell. To reach for 

the conclusion that Bissell was retaliating because of some protected 

activity by Lund is not justified under the evidence. 

VIII 

TEN DAY ATTENDANCE DISCIPLINE LETTER 

RECEIVED BY LUND. THE LETTER WAS ISSUED IN ERROR _!!/ 

Witness: Lund 

65. Lund received a discipline letter stating that he had been 

charged with ten absences in the past 12 months (Tr. 179). 

66. Lund had missed only eight days, When Lund contacted foreman 

Dayton Miller the error was corrected and the letter withdrawn (Tr. 

180-181). 

67. Lund could not get an answer as to who was responsible for the 

letter (Tr. 181). 

The Anamax procedure on employee absences is discussed infra. 

The evidence here fails to establish any discrimination against Lund. 

When the error was established the letter was withdrawn. A mere error in 

an internal company procedure will not generally support a claim of 

discrimination. 

IX 

LUND RECEIVED SAFETY DISCIPLINE LETTER FOR LIFTING A LINER 

WITHOUT HELP. HE ASSERTS THE LETTER WAS ISSUED COMPLETELY WITHOUT 

GROUNDS. Q/ 

Witnesses: Lund, Foster, Hensen, Johnson 

68. On July 26, 1980 Lund was welding liners on a shovel bucket (Tr.. 

182-184, P-16). 

69. Supervisor Foster and two mechanics assisted Lund in setting two 

or three liners in place. A man was on each corner moving the liners into 

place (Tr. 182, 563). 

11/ Paragraph 8 of amended complaint. 

12/ . Paragraph 9 of the amended complaint. 

262 
70. Without any assistance from Foster and the mechanics, Lund, 

toward the end of the shift, took the remaining liner, tipped in back on 

one corner, and dropped it on the floor (Tr. 185). 

71. When Foster left the work area the liner was three to three and 

one half feet from where it was to be placed (Tr. 552). 

72. Lund then took a 24 inch crowbar and moved the liner around until 

it got to the spot where he could tack it down (Tr. 186). 

73. Lund felt a twinge in his back (Tr. 186). 

74. The liners weigh 208 pounds and measured 24 by 36 inches; it is 

one and half inches thick (Tr. 185, 189, P-38). 

75. When Lund reported the incident of possible back injury to Foster 

he was asked he wanted to file a written report. Lund declined. When 

his other foreman suggested he report it, he did (Tr. 187). 

76. Foster, who was not aware of the shovel incident nor aware of 

Lund's safety complaint to Johnson, stayed overtime to investigate the 

incident (Tr. 554). 

77. Foster conferred with Kepner and Maderas before issuing the 

safety letter to Lund (Tr, 565, P-2), 

78. The safety warning letter ind ated Lund 1 s actions violated an 

Anamax safety regulation by "lifting a shovel liner that was too heavy for 

one person to lift when lifting equipment was available." Further, the 

letter stated that a repeated formal warning of "safety infractions" would 

Lund to disciplinary action (P-2). 

79. Section 6 of Anamax's safety rules discusses handling materials. 

Subsection A provides: "Do not lift bulky or heavy material by yourself, 

get help" (R-2). 

80. Foster, when he left the work area, told Lund to call him on the 

portable radio if he needed help (Tr. 550). 

81. Johnson, Director of loss prevention, received a copy of the 

letter, talked to Lund, and investigated the incident (Tr. 789). 

82. Johnson concluded that the letter had been properly 

790). 

sued (Tr. 

83. In Johnson's 15 years with Anamax two workers had been discharged 

for receiving a safety warning letter (Tr. 790). 

The issuance of a safety warning letter is an internal company safety 

procedure. The evidence here fails to establish that the issuance of the 

263 
letter to Lund was clearly pretexual. The uncontroverted evidence here 

establishes that a man on each corner helped lift the first two or three 

liners into place (Tr. 549, 563). Mechanic Hansen further indicated that 

welders usually request help when moving the liners (Tr. 49). Therefore, I 

do. not find Lund's testimony credible which to the effect that fie handled 

the liners alone for one and a half years prior to this incident (Tr. 

189). 

Accordingly, Anamax was justified in issuing Lund a safety letter. In 

his rebuttal evidence Lund says the portable radio issued to him was 

inoperable (Tr. 838). However, the gravamen of this claim is whether the 

issuance of the letter was a disguiied effort at retaliatory conduct. For 

the reasons stated, I conclude it was not. 

x 

LUND'S GRIEVANCE LETTER PROTESTING THE 

SAFETY WARNING LETTER DISAPPEARS 1lf 

Witnesses: Lund, Nelson, Miller, Matthews 

84. Al Matthews, a steward for the Operating Engineers at Anamax, 

deposited a grievance letter for Lund in the grievance box in August, 1980. 

Lurid was protesting the safety warning letter he received in IX (Tr. 13). 

85. Under the labor contract, a grievance procedure initially goes to 

the Anamax foreman. If the grievance is denied it then goes to the union is 

chief steward (Tr. 13-14). 

86. In three days Lund's grievance was denied. In accordance with 

ordinary procedure, Matthews deposited the grievance letter for the Chief 

steward by depositing it in the focked union box situated at the Anamax 

main gate (Tr. 14-16). 

The chief steward, after removing the grievance, sets up an additional 

hearing in the union appeal process (Tr. 15). 

87. The purpose of the union box is to pass notes between union 

stewards and the chief steward in the appeal process (Tr. 21, P-1). 

88. Before any action was taken on the grievance and after an 

extended strike at the mine Lund contacted Anamax labor relations and was 

advised they had not seen his grievance (Tr. 193). 

89. Nelson, the acting chief steward, hadn't seen Lund's grievance, 

and he checked with the other stewards who indicated they didn't have it 

(Tr. -30). 

90. Persons having access by key to the union box include management, 

and the chiefs stewards of the Operating Engineers, the Teamsters, the 

):1/ Paragraph 10 of the amended complaint, 

264 
International Brotherhood of Electrical Workers, and the Steelworkers (Tr. 

27, 29). 

91. After the strike a number of grievance letters could not be 

accounted for (Tr. 33). 

92. Since Lund was not a union member he could go to one of three 

unions and they would be required to represent him (Tr. 28). 

When mail is properly addressed and deposited in the United States 

mail, there is a rebuttable presumption of fact that it was received by the 

addressee in the ordinary course of mail, I Evidence § 95 at 524 

(3d ed 1940); Weinstein on Evidence~ 406 ( 

Several difficult s prevent the rise of any ion in this case" 

st, Anamax and four unions have access to the box. Second 0 an 83 day 

strike intervened. Third, a number of grievance letters apparently were 

lost about the same time, Therefore, there is no presumption to explain 

what happened to Lund 1 s letter. 

Accordingly, there is a failure of proof that Anamax removed Lund's in 

retaliation for any protected activity. 

XI 

LUND'S DAMAGED TOOL BOX WAS 

NOT REPLACED FOR TWO MONTHS 

Witnesses: Lund, Miller 

93. Four to six weeks before the strike 

box be replaced because it had been damaged. 

policy, the company agreed to replace the box 

Lund requested that his tool 

In accordance with Anamax 

(Tr. 199, 443). 

94. Miller ordered the tool box the same day Lund showed him his 

damaged box (Tr. 700, 702, 722). 

95. During the strike Lund called Johnson who located the box in 

storage (Tr. 199, 701). 

96. The tool box came into the company in about two months and it was 

two or three weeks before it was brought to Miller's attention (Tr. 722). 

I see no discrimination nor retaliatory action in the above facts. 

Anarnax followed standard policy and agreed to replace Lund's tool box. The 

order was placed. Anamax cannot be held responsible for a vendor's delay 

in delivering a tool box. 

An inconsequential credibility issues arises in this incident. Lund 

says Miller told him the day before the strike that the tool box had not 

been ordered. Miller testified that the tool box was ordered the day Lund 

14/ Paragraph 11 of the amended complaint. 

265 
requested it. I give credit to Miller's testimony because such evidence is 

more credible on the record as a whole. 

XII 

LUND IS DISPATCHED ALONE, WITHOUT A RADIO, TO CUT 

AND WELD ON A PAIR OF SIDE FRAMES. HE FOUND FOUR HALF 

FILLED BUCKETS OF SOLVENT UNDER THE FRAMES J.2/ 

Witnesses: Lund, Miller 

98. On the first Saturday shift after the strike concluded 

(approximately· November 1, 1980) shovel superintendent Shelley assigned 

Lund to do routine repairs on side frames resting on timbers (Tr. 202-204, 

P-19). 

99. Lund would be using his torch and regular welding outfit to 

rebuild the framework (Tr. 204). 

100. In looking over the area Lund found four clear five galion haif 

full buckets of solvent underneath the sideframes (Tr. 205). 

101. Lund removed the buckets (Tr. 208). 

102. The yard where the frames were located was somewhat of a junkyard and it was used for storage (Tr. 209-210). 

103. Anamax's standard procedure permits welders to weld outside of 

the shop without a radio (Tr. 210, 211, 447). 

104. Lund didn't see anything in the yard that needed cleaning (Tr. 

211). 

105. Lund considered it his responsibility as well as his foreman's to 

remove solvents from the area (Tr. 449). 

Lund testified that these solvents had been set as a "trap" for him, 

(Tr. 450) but foreman Miller's uncontroverted testimony is that it is 

customary for solvents to be in this area (Tr. 721). One would also expect 

solvents in an area where there were worn out parts. 

Lund's claim of discrimination also lies in his stated but unpleaded 

argument that it is discriminatory for a man to· be assigned to a job 

without a radio. This matter is an internal business decision by Anamax. 

I will not upset such a business judgment unless the action by Anamax was 

actually taken in retaliation for some protected activity. 

15/ Paragraph 12 of the amended complaint. 

266 
At best, Lund established an unsafe work place resulting from the 

proximity of the solvents and the lack of a radio. The same ruling as in 

paragraph I is applicable here. 

XIII 

LUND IS REFUSED PERSONAL PROTECTIVE EQUIPMENT 

ON JANUARY 31, 1981, AND FEBRUARY 1, 1981 J!!.../ 

Witnesses: Lund, Miller, Taylor, Hyder 

MADERAS INCinENT 

106. On this occasion Whitmore lubricant was dripping into the area 

where Lund. was welding (Tr. 213, P-23). 

107. Lund asked for personal protective equipment other than the pair 

of leather shoulders. Maderas (Bissel 1 s foreman) said 11 1' 11 think about 

it. 1u Further, Maderas told Lund that "I like to see you get your pants 

dirty'' (Tr. 214). 

108. Lund did the work and burned holes in his pants (Tr. 214). 

109. Lund also asked for a mechanics paper protective suit and an 

asbestos blanket (Tr. 214~ 215, 450-451~ P-20). 

· 110. Lund ~ade this request three times (Tr. 218). 

TAYLOR INCIDENT 

111. The following day, February 1, 1981, Lund was directed to weld 

in a gear blank on the underneath side of an S-10 shovel (Tr. 218). 

112. The grease lined gear box was seven to eight inches over Lund's 

head. 

113. Lund told supervisor Taylor that he needed protective clothing 

and ventilation (Tr. 218). 

114. Taylor brought a fan but the A/C motor burned out on the D/C 

current of the welder (Tr. 220, 221). 

115. Taylor didn't give Lund a paper suit. He further explained the 

hazard of such suits to Lund (Tr. 534) .. 

116. Welders are issued leather sleeves and gloves, small aprons, 

safety toe shoes, hard hat, glasses and a welding hood. Anamax replaces 

any ·damaged leather jackets, but it does not require them (Tr. 704, 706, 

760). 

117. Lund had the standard equipment as is issued to any welder, but 

he did not have a leather jacket (Tr. 706). 

16/ Paragraphs 13 and 14 of the amended complaint. 

267 
Lund claims he was discriminated against because he wasn't issued the 

necessary clothing to do the job without injury. An MSHA regulation 

concerning protective clothing or equipment is contained in Title 30, Code 

of Federal Regulations, Section 55.15-7, which provides as follows: 

55.15-7 Mandatory. Protective clothing or equipment 

and face-shields or goggles shall be worn when welding, 

cutting, or working with molten metal. 

The issue here is whether Anamax discriminated against Lund in 

violation of Section 105(c). The issue is not whether the standard was 

violated. I conclude Lund's complaint of discrimination fails. 

The evidence in connection with the Maderas incident shows Lund asked 

for protective clothing. Maderas refused and Lund did the welding but 

burned his pants (Facts 106, 107, 108, 109). The availability of the 

jacket in the cage (Tr. 451-453) is not relevant to a determination of the 

issue. As indicated in paragraph 1 of this decision Lund was engaged in a 

protected activity when he protested the lack of protective equipment. At 

that point he could have validly refused to work. However, the Act 

is not intended to reward a worker for working under an unsafe condition, 

Anamax did not further discriminate against Lund for engaging in his 

protected activity. Maderas remarks, certainly not the most pleasant, fail 

to show that Maderas was discriminating against Lund for his protected 

activity in protesting the lack of personal protective equipment. 

The Taylor incident does not involve a refusal to furnish protective 

clothing but rather it concerns a dispute over its use. Lund clearly 

testified he asked Taylor for ventilation and protective clothing (Tr. 

218). Taylor brought a fan (Tr. 220). However, Taylor refused to provide 

a paper suit as he thought it would be more hazardous. Taylor explained 

the hazard to Lund (Tr. 534). Lund claims Taylor refused him protective 

clothing, (Tr. 220) but both Lund and Taylor agree that Lund obtained and 

used a paper suit (Tr. 221). Lund describes it as "tore up" and that it 

had been under the seat of his truck (Tr. 221). Taylor says Lund got one 

from the weld shop (Tr. 534). The origin of the paper suit is not vital. 

The ultimate facts establishes that Lund used protective clothing. 

Taylor's refusal does not show any discriminatory intent but rather was a 

dispute over the safety of the paper suit. If Taylor intended to retaliate 

against Lund for his protected activities one would hardly expect that he 

would secure a fan and argue over whether a mechanics paper suit could be 

safely used. In summary, no evidence of discriminatory or retaliatory 

conduct is shown here. 

XIV 

LUND IS VERBALLY ABUSED BY SUPERVISOR DON NOEL lJJ 

Witnesses: Lund, Mattausch, Butler, Vanderburg, and Noel 

118. On February 12, 1981, Lund, Vanderburg, and Mattausch were 

discussing the shovel incident in the heavy equipment maintenance shop when 

supervisor Don Noel walked up to the group (Tr. 73-75). 

17 I Paragraph 15 of the amended complaint. 

268 
119. Noel, a line foreman, in an above normal and sarcastic tone, 

called Lund "a Jerry Johnson suck ass" (Tr. 74, 75, 85). 

120. Mattausch and Vanderburg laughed, but Lund didn't (Tr. 80, 85). 

121. Gerald Johnson is head of the Anamax safety department (Tr. 

77). 

122. Noel went into the office and he was talking to Lund's foreman 

concerning what Lund was doing and why he was talking to the two men, etc, 

(Tr. 23 7). 

123. Lund interrupted, explained his work, and he made an issue about 

what Noel called him. Lund then left (Tr. 237-238). 

124. It is the practice to swear in the maintenance shop and 

Mattausch had heard Noel swear before (Tr. 77). 

125. After leaving the office Noel came to Lund and said he didn't 

mean it the way it sounded, He apologized (Tr. 94, 238). 

126. Johnson, within a week, told Lund the insult was to Lund alone. 

Lund then filed a complaint, Johnson told Lund not to "smack" anyone (Tr. 

238-239). 

A credibility issue arises between Noel's and Lund's versions of this 

incident particularly as it relates to Noel 1 s stated reason for referring 

to Gerald Johnson. Noel says he mentioned Johnson because his name just 

"popped into his head. 11 I find the likelihood of that to be so remote as 

not to be credible. I find that Noel's remark was a rather clear reference 

to Lund's protected activities in protesting to the Anamax safety 

department. The legislative history indicates that the Congress intended 

to protect miners against not only the common forms of discrimination, 

[naming a few] "but also against the more subtle forms of interference such 

as promises of benefit or threats of reprisal." Legislative History of the 

Federal Mine Safety and Health Act of 1977, 95th Congress, 2nd Session 624 

(July 1978). 

The difficulty with Lund 1 s position is that the statements by Noel 

does not constitute a threat of reprisal. It is not shown that any 

discriminatory action was taken by Noel against Lund. Noel's remark is not 

a threat, ~ paragraph VI, supra. It did not injure Lund or .his employment 

in a way that Congress intended to prohibit. It was merely a derogatory 

statement which are commonplace among some workers. Congress in my view 

did not intend to legislative in the area of derogatory statements made in 

the work place. 

269 
xv 

LUND RECEIVES IMPROPER FIRST AID 

TREATMENT FOR AN EYE INJURY. HE IS 

FURTHER REFUSED A TAXI SLIP BACK TO 

THE MINE AND A· SECURITY OFFICER REFUSES 

TO TELEPHONE GERALD JOHNSON HIS BEHALF ~/ 

Witnesses: Lund, Taylor, Rosenthal, Johnson, Bishop, 

and Weathers 

The following events occurred in sequence. 

125. On February 1, 1981, Lund was welding on a large conveyor (Tr. 

240). 

126. When supervisor Taylor appeared Lund said he had a foreign body 

in his eye. Taylor took Lund to the Anamax aid station (Tr. 240}" 

127, Bishop, the emergency room technician, said he wasn 1 t going to 

examine the eyes until they were washed out in the high pressure eye wash 

(Tr. 240-241). 

128. After using the eye wash Bishop examined Lund's eyes with a 

large magnifier and he indicated he couldnit find any foreign object {Tr. 

241' 242) . 

129. Lund's eye continued to bother him so he returned to the first 

aid room and Bishop took him to the hospital (Tr. 242). 

130.. Dr. Rosenthal, the enunergency room physician, without any 

magnification saw that Lund had a foreign body in his eye (Tr. 66-70, 

P-4). 

131. It is inappropriate to use a high presure eyewash before the eye 

is examined (Tr. 70, 71). 

132. Dr. Rosenthal anesthetized the eye, removed a one to two 

millimeter metallic body, and patched the eye (Tr. 68). 

133. In the emergency room Bishop handed Lund a taxi slip. The 

company later pays for the worker's taxi fare home (10 miles). Lund asked 

for a taxi slip to get back to the mine (28 miles) to get his vehicle (Tr. 

243, 244, 459, 640-644, 791, P-25). 

18/ Paragraphs 16, 17 and 18 of the amended petition. 

270 
134. At Lund's request Bishop called John Caylor, Johnson's assistant 

on duty on that shift. Caylor refused Lund's request for a taxi slip to 

the mine (Tr. 649). 

135. Lund asked Weathers, the security guard, to call GeDald Johnson 

at his home. Weathers refused because Caylor was on duty, that is, he was 

in charge of safety and health matters at that particular ~ime (Tr. 

648-652). 

136. Bishop, an emergency medical technician, received forty hours of 

training in that specialty. He also receives annual refresher courses (Tr. 

631, 632). 

137. It is Anamax's policy to furnish workers with a taxi slip to go 

from the hospital back to their residences (Tr. 639). 

138. If an individual lives beyond the mine the company issues a taxi 

slip only to the mine (Tr. 646}. 

1390 Bishop has given out approximately 24 taxi slips in the last 12 

months (Tr. 641). 

There are two. areas of cre'dibility in this incident. Lund says Bishop 

didn 9 t examine his eye before telling him to use the eye wash. Bishop, to 

the contrary says he "believes" he examined Lund 9 s eyes before the wash. 

The belief of a witness is far less persuasive than positive testimony, 

The second area of credibility involves the conflict of whether Lund 

complained about the taxi slip. The evidence supports Lund's version. 

I do not find that the three incidents involved here support a claim 

of discrimination nor retaliatory conduct. Taylor took Lund to the aid 

station. Although the method of treatment was inadequate no evidence 

supports the conclusion that Anamax was retaliating against Lund. On the 

contrary, Taylor took Lund to the aid station. Even though the treatment 

was inadequate thereafter Bishop took him to the hospital. 

In the hassle over the taxi slip, Lund's claim seeks to establish 

discrimination based on Anamax's policy. Anamax's policy is to pay a 

worker's taxi fare from the hospital to his home. If the worker lives in 

the direction of, and beyond the mine, then Anamax pays for the trip to the 

mine (Tr. 791-792). Obviously, it is less expensive for Anamax to pay the 

lesser amount. It is uncontroverted that Lund was treated the same as 

anyone else (Tr. 641). No discrimination nor retaliatory conduct arises in 

these circumstances. 

Weathers, a security guard, refused Lund's request to call Gerald 

Johnson. Weathers refused because Caylor was "on duty" and in charge of 

safety and health (Tr. 651-652). A company policy cannot be faulted which 

prohibits workers from contacting higher a.uthority when a management person 

is already non duty." 

271 
X\TI 

ANAMAX FAILED TO CORRECT AN UNSAFE 

CONDITION AT A FUEL LOAD OUT AREA ]J_/ 

Witnesses: Lund, Ypulong, Miller, Hyder 

139. Lund observed that the seal of the nozzle of the fuel tank used 

to fuel his welder was leaking (Tr. 250). 

140. Lund tagged it with a "DO NOT START" tag (Tr. 250, 707). 

141. The next night the tag was off and Lund tagged it again and 

asked foreman Ypulong why it hadn't been fixed (Tr, 250, 73<'+). 

142. Ypulong said they couldnit get the parts (Tr. 251). 

143. A week later the nozzle was still leaking, Lund was upset and 

he didn't fuel his welder (Tr, 251). 

144. The next day Lund called Johnson and threatened to call MSHA 

(Tr. 251). 

145. Four hours later when Lund reported for work the leaking nozzle 

had been repaired (Tr. 252). 

Lund's activities as outlined above were clearly protected under the 

Act. However, no retaliatory action was taken by Anamax. Accordingly, no 

claim exists under the discrimination section of the Act. 

Lund's query on this complaint is why wasn't the leaky nozzle fixed 

sooner? The record does not directly answer this question. Indirectly, 

foreman Ypulong indicated the part had to be ordered. In any event, Lund's 

position here is that he was required to work in an unsafe condition. The 

law in that area has already been discussed in paragraph I, supra. 

Witness: Lund 

XVII 

LUND IS REFUSED SAFETY EQUIPMENT 

BY FOREMAN BISSELL l:...q/ 

146. On this occasion Lund was assigned to do some pin keeper welding 

for Bissell (Tr. 253). 

14 7. The pins were rune to ten feet off of the ground (Tr. 25 3) • 

19/ Paragraph 19 of the amended complaint. 

20/ Paragraph 20 of the amended petition. 

272 
148. Two mechanics working on the shovel had radios but Lund did not 

(Tr. 254). 

149. The mechanics, at Lund '-s request, asked Bissell, apparently by 

radio, for a ladder. Bissell refused (Tr. 254). 

150. Bissell told Lund to use the ladder on the shovel but Lund felt 

that the ladder was inadequate because it didn't furnish adequate support 

or balance (Tr. 254, 462, 463). 

151. Lund took one of the mechanics radio and when he started to 

raise cain (about being refused safety equipment) one of the mechanics took 

off in the truck and returned with the ladder (Tr. 254-255), 

Lund contends he was not given permission to take his truck and get 

the ladder he thought he needed, but the mechanic~ who wasn;t invoived on 

the repair, was free to zip back and forth and pick up anything he neeaea 

(Tr. 255). Lund seeks to have the Commission interfere with Anamax's 

internal procedures. I am unwi 1 ling to cio so, The est of the 

inadequacy of a ladder was a protected activity under the Act, However, 

th incident, like all other alleged Bissell related incidents, if they 

show protected activity, they fail to show retaliatory conduct for the 

protected activity, Bissell was terminated by the company because his 

supervision was "inadequate." The mere inadequacy of a supervisory uerson 

is not retaliatory conduct under the Acto 

XVIII 

ON APRIL 7, 1981 LUND ASSERTS THAT HE WAS REFUSED 

ACCESS TO THE TAPE HE MADE FOR GERALD JOHNSON 

CONCERNING THE SHOVEL INCIDENT ]J_/ .. 

Witnesses: Lund, Johnson 

The details surrounding the tape, or tapes,.3.Y' of the shovel 

incident are set forth in Facts 1 through 13, supra. 

The only credibility determination here arises in connection with Lund 

declining a copy of the tape or a transcription of the statement he gave 

the safety department. Johnson says he declined the offer. Lund agrees he 

declined the offer but he adds the proviso that he'd get them later, if he 

21/ Paragraph 21 of the amended complaint. 

22/ The record is unclear whether Lund's 15 minute taped statment (Tr. 

776).was recorded on one or more tapes. The decision accordingly at 

various times refers to "tape" or "tapes". 

273 
needed them. I do not find Lund's evidence credible. Lund contac.ted 

Johnson a dozen times regarding safety matters but he didn't contact 

Johnson about the tapes until a year later, namely April 1981 (Tr. 

780-782). In connection with the non production of the tapes I note that 

Anamax was under no obligation to. preserve the tapes. Further, I find the 

following facts to be credible: 

·152. Johnson didn't refuse Lund access to the tape (Tr. 780). 

153. When Lund contacted Johnson for the tape in April 1981, Johnson 

said he'd search for them (Tr. 780-781). 

154. The tapes could not be located (Tr. 780-781). 

155. Johnson didn't know if anyone had found the tape (Tr. 781). 

Lund was available and testified about his statements on the tape. 

This was a protected activity but no evidence supports the view that the 

failure to produce the tape was in retaliation. 

XIX 

ON APRIL 8, 1981 LUND ALMOST LOSES HIS HAND 

BECAUSE. OF INADEQUATE LOCKOUT PROCEDURES IN THE CRUSHER 

DEPARTMENT A DISCIPLINE LETTER IS THREATENED IF THE INCIDENT 

IS REPORTED }:1_/ 

Witnesses: Lund, Logan 

156. At the time of .this incident Lund was dispatched to work in the 

secondary crusher building (Tr. 263, P-27). 

157. Lund was with co~worker Harold Crumley (Tr. 264). 

158. Crumley was shown by another person where to place his lock to 

lock out the equipment (Tr. 265). 

159. Lund placed a patch to see if it would fit. The patch fe 11 

inside. Just as he pulled his hand out after retrieving the patch, 500 to 

600 pounds of muck slid down the chute (Tr. 265, P-28). 

160. The muck fell right where Lund 1 s hand had been (Tr. 265). 

162. The people above were calibrating equipment and they showed 

Crumley where to lock out the equipment (Tr. 267). 

23/ Paragraph 22 and 23 of the amended complaint. 

274 
163. To lock out properly it was necessary to lock out in three 

places (Tr. 268). 

164. Logan was first made aware of this incident when an MSHA 

complaint was filed (Tr. 658). 

165. Logan didn't threaten·Lund about the issuance of a safety letter 

for such an incident (Tr. 660). 

We will consider the dual complaints in reverse chronological order. 

The second issue is whether t.here was a threat of retaliation if the 

incident was reported. A credibility issue arises over whether there was 

such a threat~ 'That is, did management threaten a safety letter if the 

incident was reported. I am not persuaded by Lund's evidence. It is 

triple hearsay because hourly workers stated to Crumley that if Crumley or 

Lund made "trouble" they'd get safety letters and apparently Crumley 

related the statements to Lund. A further difficulty with the credibility 

of the triple hearsay statement is the fact that, according to Lundi 

"supervision had left" when this incident occurred (Tr. 267), Logan came 

on the job after the incident, and I accept his testimony that he did not 

threaten Lund with the issuance of safety letter (Tr. 660). In fact, his 

first knowledge of the incident was when an MSHA complaint was filed. This 

view is confirmed by Lund's testimony to the effect that no one came to h 

and said, "I'm going to issue a safety letter 11 (Tr, 467). 

The primary issues are whether Lund was engaged in a protected 

activity and whether Anamax took retaliatory action. Lund was working as 

a welder in his ordinary activity. No protected activity was involved. 

Lund seeks to prove that the falling muck occurred as a result of his 

statements to the safety department, but no evidence supports that view. 

Quite to the contrary, whoever put the conveyor in motion and apparently 

thereby released the muck was on the floor above where Lund and Crumley 

were working. There is no showing that persons on a different floor could 

even have known of the presence of Lund and Crumley. 

Lund contends discrimina.tion occurred here because these two incidents 

were not "sorted out" when Lund wanted to have them investigated (Tr. 465). 

No further evidence is offered in support of the argument of how the two 

instances were not "sorted out", and since I find no protected activity nor 

retaliatory conduct, it follows there is no merit to the argument. 

xx 

LUND IS GRANTED EMERGENCY MEDICAL LEAVE TO BE 

PRESENT AT THE BIRTH OF HIS CHILD; THE LEAVE IS THEN 

REVOKED. FURTHER, AN ATTENDANCE DISCIPLINE IS ISSUED 

AFTER LUND'S ABSENCE 24/ 

24/ Paragraph 24 and 25 of the amended complaint. 

275 
Witnesses: Lund, Miller, Nelson, Pijanowski 

166. On April 20, 1981, just prior to the birth of his child, Lund 

asked supervisor Rael for a couple of days [or half a day] of emergency 

leave (Tr. 275). 

167. Supervisor Nelson called back and said he thought it would be 

all right (Tr. 275). 

168. Later, Nelson called Lund again and said Lund couldn't have the 

leave he'd previously approved, The reason given by Nelson was that it was 

not in accordance with company policy (Tr. 275-276). 

169. For being absent while he took his wife to the hospital Lund 

received an attendance letter (Tr. 277, P-26). 

170. Lund didn 1t know of anyone else at Anamax who had been given 

permission to be with their wife at the birth of a child and who was not 

charged with an absence that would count against their attendance record 

(Tr. 468). 

171. Nelson treated Lund the same way as any other miner. His leave 

would be without pay and he would be charged for the days he was absent 

(Tr. 612). 

172. The Anamax written absentee control policy is dated January l~ 

1977. 

173. Anamax has three classes of absences: AWOL, chargeable, and non 

chargeable (Tr, 499). 

174. A worker is AWOL if his absence is unexcused. Five unexcused 

absences results in termination (Tr. 499). 

175. A worker is allowed 16 chargeable absences in 12 months. At the 

8th absence the worker receives a verbal warning, at the 10th and 12th 

absence he receives a written warning; at the 14th absence the worker is 

suspended for 3 days (Tr. 500). 

176. Non-chargeable absences include jury duty, witness subpoena per 

labor agreement, military leave, funeral leave, union business, vacations, 

holidays, and absences due to industrial accident or injury (Tr. 501, R-6, 

R-7). 

Lund's complaint is that Nelson granted him an emergency medical 

leave and then revoked it. The requesting of medical leave is not an 

activity protected under the Act. Further, Anamax did not, in any event, 

discriminate against Lund. Anamax merely advised him on April 24, 1981 

that he had been charged with 13 absences and in the event there was one 

more absence he would be given a three day suspension (P-26). An operator 

may in his business judgment impose attendance requirements and sanctions 

without being in violation of the Act. 

276 
Lund agrees he knows of no one else who was given leave for the same 

reason and not charged for it. Lund's absence was excused. Anamax's 

policy requires discipline at the 10th and 12th excused but charged 

absence. Lund agreed that his 13th day of absence was the day he took his 

wife to the hospital (Tr. 469). The only "discipline" was c~arging Lund 

for the day he missed. No further suspension occurred. Anamax's activities were in accordance with its· attendance policy and, therefore, no 

discrimination is shown. 

XXI 

ON MAY 1, 1981 LUND IS DISPATCHED BY LOGAN TO WORK AT 

THE INTERSECTING CONVEYOR BELTS UNDER UNSAFE WORKING CONDITIONS 25/ 

Witnesses: Lund, Logan, Miller 

178. Logan dispatched Lund to work on intersecting conveyor belts 

known as W-1 and R-1. Their duties included cleaning muck out of the 

shuttle (Tr. 279-281). 

179. Lund and co-worker locked out the equipment in the lockup shack 

(Tr. 280, Exhibit P-29). 

180. After working for approximately two hours in the chute a beltrider (trouble shooter) asked Lund if he had locked out the shuttle (Tr, 

281, 289, Exhibit P-26, P-30, P-31). 

181. When Lund requested an additional lock, an electrician came and 

installed a "tree" with a lock on it. Lund refused to get back in the 

shuttle until the conveyor was locked out with a lock to which he had the 

only key. 

182. Lund.explained the situation to Logan who had Lund write out on 

a piece of paper why he was refusing to work (Tr. 285). 

183. Lund refused Logan's request to leave his lock and at that 

juncture Logan told Lund to load up. Logan sent Lund to a different job 

(Tr. 287). 

184. Logan told Lund he was taking the issues to a safety committee 

to see who was right (Tr. 287-288). 

185. Approximately two to four weeks later a new Anamax policy 

resulted in each welder being issued two locks to prevent this situation 

reoccurring (Tr. 288, 711). 

The credible evidence establishes that Lund was engaged in a protected 

activity when he refused to work in the chute. His arguments to Logan were 

25/ Paragraph 26 of the amended complaint. 

277 
correct. However, the evidence fails to show that Anamax took any 

retaliatory action against him. The uncontroverted testimony by Logan 

indicates that Lund was reassigned back to the weld shop after this 

incident (Tr. 285, 673, 674). 

Lund claims he was discriminated against because he was yelled and 

hollered at and he was working under unsafe conditions that the supervisor 

thought were safe without Lund being given a fair hearing on the dispute 

(Tr. 287, 288, 473). 

The evidence does not show retaliatory action by the company. The 

facts here rebut any harassment of Lund that is subject to redress under 

the Act. 

The fact that Lund was working under an unsafe condition for approximately two hours was not discriminatory conduct for the reasons discussed 

in paragraph I, supra. 

XXII 

LUND RECEIVED ATTENDANCE DISCIPLINE LETTER AND THREE DAY 

SUSPENSION. HE CONTENDS THE SUSPENSION SHOULD NOT HAVE BEEN 

ISSUED BECAUSE MANAGEMENT KNEW HE HAD BEEN INJURED ON THE JOB ~/ 

Witnesses: Lund, Johnson~ Pijanowski, 

186. According to Anamax's policy an industrial accident is not 

chargeable against attendance (Tr. 303, 506). 

187. Anamax policy requires a worker to immediately report an injury 

to his supervisor (Tr. 105, 793). 

188. Lund claims he was injured on the job on May 12, 1981, when he 

lifted a handrail over his head. Lund filed his report of the injury on 

May 24, 1981 (Tr. 597, 796, Exhibits P-32, R-16). 

189. Due ·to Workmen's Compensation, Anamax requires immediate 

reporting of any accident (Tr. 793, 794). 

190. On May 18, 1981 Lund received a three day disciplinary action 

notice due to his attendance. He was suspended for three days because he 

had been charged with 14-1/2 absences in the prior 12 months (Exhibit P-5). 

191. Lund called in each day that he didn't work after the May 12th 

incident. He told the guard he felt he couldn't work and he was going to 

the doctor (Tr. 298, P-33). 

26/ Paragraph 27 of the amended complaint. 

278 
Anamax may impose legitimate accident reporting requiremerrts. Lund's 

evidence fails to establish that Nelson's actions were anything other than 

the enforcement of the Anamax absentee policy, discussed in XX, supra. 

In paragraph IX, supra, Lund orally reported an accident and filed a 

written report the night of the incident (Facts, ,75). At the time of this 

incident, in July 1980, Lund knew of Anamax's requirements concerning• 

the filing of an accident report. In May 1981 he didn't file the report 

until 12 days later. In addition to the late filing Lund's co-worker James 

Johnson "didn't recall" that Lund ever claimed to have incurred any injury 

in lifting the 25 pound handrail (Tr. 100). In short, I conclude that Lund 

failed to prove that his back injury occurred on the job. 

XX III 

LUND IS THE SUBJECT OF VERBAL ABUSE BY SUPERVISOR LOGAN 

AND LOGAN FURTHER DEFAMES LUND 1 S ABILITY AS A CRAFTSMAN 27 / 

Witnesses: Lund, Hall, Vidal, Logan 

192. Twice on the same day, Vidal heard Logan call Lund "dung" (Tr. 

307' 308). 

193. On other occasions Logan said to Lund words to the effect that 

"who down there [in welding] hates me that they 1 d send me you for a welder 

(Tr. 110, 313-315). 

194. These statements upset Lund (Tr. 308). 

195. Before June 1, 1981 this occurred less than ten but more than 

five times (Tr. 314). 

·Logan concedes he cal led Lund "dung" 28/ a dozen times over a year 

but he indicated Lund had not objected. When Lund protested Logan 

apologized and stated he wouldn't call him that again. Logan didn't recall 

ever making any disparaging remarks concerning Lund's skill as a welder. 

He considered him an "excellent",welder (Tr. 678 - 679). 

27/ Paragraphs 28 and 29 of the amended complaint. 

28/ Webster's new Collegiate Dictionary 1979 defines "dung" as follows: 1. 

the excrement of an animal: MANURE 2. something repulsive. 

279 
The credibility issues are resolved in Lund Is favor as enumbered in 

paragraphs 192 through 195. Logan confirms he used the "dung" term and 

"doesn't recall" any disparaging remarks of Lund's ability. I find in 

Lund's favor because of Logan's failing memory on this issue. 

The statements by Logan are derogatory in nature but they do not rise 

to the level of a threat of reprisal. In short, Lund is not protected by 

the Act against such statements. 

XXIV 

A VANDAL DAMAGES LUND'S CAR AND HE MISSES WORK. ON 

HIS RETURN HE IS QUESTIONED BY TWO ANAMAX FOREMEN 

AND HE RECEIVES AN ATTENDANCE DISCIPLINE LETTER FOR 

THE WORKDAY HE MISSED, :!!!._/ 

196, On June 13, 1981, while Lund's automobile was alongside his 

trailer home in Tucson, Arizona~ someone placed a jumper cable across his 

ignition wires and burned the wiring his car (Tr. 316). 

197. Lund didn 1 t know who vandalized his car (Tr. 477-478). 

198. Lund 1 s repairs cost were $524.53 (Tr. 319). 

Lund received an attendance disc 

appear at work on June 13 9 1981 (Tr. 320). 

ine letter for his failure to 

200. Lund was apparently not docked a day without pay (Tr. 323). 

A credibility issue arises whether the facts are as outlined above or 

whether Lund burned up the car when he was jumping the battery as he 

allegedly told the foreman (Tr. 713). I find this issue in Lund's favor 

since he offered his insurance card to the foreman (Tr. 713). Further, the 

hearsay statement of the automobile service manager is to the effect that 

someone had been tampering under the automobile's dash (Tr. 320). 

A resolution of the credibility issue here does not tesolve the 

incident since the evidence utterly fails to connect Anamax with the 

vandalism of Lund's automobile. Accordingly, any claim of discrimination 

in connection with that allegation should be dismissed. 

Lund also contends he was discriminated against because of the 

tremendous amount of attention paid to the incident by his supervisors (Tr. 

477-478). However, Lund offers no supporting detail other than the fact 

that he was questioned by Logan about his absence (Tr. 479, 480). It is 

uncontroverted that Logan gave Lund an "excused absence". Any inquiry was 

at best enforcement of rules concerning absences. In short, Lund did not 

establish a claim of discrimination by merely showing that Dayton Miller 

29/ Paragraphs 30 and 31 of the amended petition. 

280 
questioned him twice and Ypulong with Miller (both foremen) questioned him 

a third time about the car burning incident (Tr. 322-324). I find Logan's 

testimony credible which is to the effect that the next day when Lund came 

to work he questioned Lund as he would any other employee (Tr. 712). 

The final portion of the claim of discrimination in this incident 

deals with the attendance discipline letter. I find a failure of proof in 

this regard. At one point Lund stated he received a discipline letter for 

failing to appear on June 13 (Tr. 320). However, as the Judge further 

developed Lund's testimony he stated he wasn't issued such a letter, but he 

was assessed a day's absence (Tr. 321). Lund's direct testimony is totally 

conflicting and for this reason his proof ls. Even if Lund had received 

an attendance letter it would have been in furtherance of the Anamax 

attendance policy, discussed in paragraph XX, supra, If a worker misses a 

day an operator may legitimately assess him for the day he missed, 

x.xv 

LUND ALLEGES A THREAT BY DAYTON MILLER IN THAT HE 

HAD TO BE SUBPOENAED TO fo~PEAR FOR A PRE-TRIAL HEARING 

IN THE INSTANT CASE OR HIS ABSENCE WOULD BE COUNTED AGAINST 

HIS ATTENDANCE RECORD, }!l_/ 

Witnesses: Lund, Pijanowski 

201. On July 2, 1981 Lund asked Dayton Miller that he be excused from 

work to appear at a prehearing conference in the instant case on July 14s 

1981 (Tr. 324, 325). 

202. Nelson told Lund he wouldn't be given an excused absence unless 

he was subpoenaed (Tr. 325, 480-481). 

203. Whether an absence is excused or unexcused a mattf'r within 

the discretion of the hourly worker's supervisor (Tr. 326). 

204. When the prehearing conference took place Lund was working the 

graveyard shift which did not conflict with the prehearing schedule. 

Accordingly, his attendance record at Anamax was not adversely affected 

(Tr. 326). 

The evidence 1s uncontroverted that during the 1977 labor negotiations 

Anamax and the union discussed and agreed that an appearance pursuant to 

subpoena at a hearing in a court of law for a municipality, a county, a 

state, or a federal court would not be a chargeable absence. The 

negotiators also discussed administrative hearings. MSHA was not mentioned 

but NLRB, EEOC, Workman's Compensation, state unemployment, etc., were a 

part of the union demand. The demand was not met and the net result ts 

that appearances before an administrative hearing are a chargeable absence 

(Tr. 505-507). 

30/ Paragraph 32 of the amended petition. 

281 
The Act prohibits an operator .from discriminating against a miner 

because he "has testified or is about to testify in any such proceedings 

under the Act" 30 U.S.C. 815(c)(l). Anamax's policy is inherently 

discriminatory against a miner whQ must appear in an MSHA proceeding during 

a miner's day shift work hours because such an appearance has an adverse 

affect on his employment record, namely an unexcused absence is charged. 

This policy then could have a chilling effect·on a miner's willingness to 

institute a proceeding under the Act. Lund's appearance before the Judge 

was protected activity. However, the pre-hearing conference did not take 

place during Lund's work shift and consequently, he was not required to 

take time off .from his job in order to attend the conference. Anamax' s 

policy was not enforced against Lund, and, therefore, notwithstanding the 

validity of the policy under the Act, Lund suffered no discrimination 

because of it. 

XXVI 

AN ANAMAX SAFETY OFFICIAL REFUSES LUND'S REQUEST 

TO ISSUE A SAFETY LETTER TO SUPERVISOR LOGAN, 1.1._/ 

Witnesses:. Lund, Logan, Caylor, Johnson 

205. On July 5, 1981 Lund's supervisor Hassell Logan climbed a 

structure and welded a ladder in place as he stood on a cross member of the 

structure (~r. 327, 680). 

206. Lund's complaint to the safety department was that a supervisor 

had climbed the tower without tying off with a safety belt and lanyard. 

The climbing was done over Lund's head (Tr. 327, 593, 690). 

207. The day following this incident Lund contacted John Caylor in the 

Anamax safety department. Lund requested that a safety lette~ be issued to 

Logan (Tr. 330). 

208. Caylor told Lund, and he reiterated at trial, that Anamax has no 

policy authorizing an hourly employee to issue a safety letter to a 

supervisor (Tr. 330, 592, 593). 

209. Caylor took Lund's safety complaint and investigated the 

incident (Tr. 593). 

210. Caylor found that Logan was 12 feet off the ground (outside 

measuresment) and unsecured while he welded the ladder. On the inside of 

the structure Logan was four to five feet off of the ground. 

31/ Paragraph 33 of the amended petition. 

282 
211. A verbal warning was issued to Logan by the safety department 

for this incident (Tr. 690). 

It is not necessary to decide in this case whether Logan violated the 

MSHA standard promulgated at 30 C.F.R. 55.15-5. The standard provides: 

55.15-5 MandatorJ. Safety belts and lines 

shaU be worn when men work whe·re there is 

danger of falling; a second person shall 

tend the lifeline when bins, tanks, or other 

dangerous areas are entered. 

The issue is whether Anamax discriminated against Lund. I conclude no 

such discrimination occurred. Lund's theory is that the company policy (or 

lack of it) denies him recourse while being required to work under a 

supervisor in these circumstances. I reject Lund's theory. If an hourly 

employee had authority to issue a safety letter the results in a mine could 

well be chaotic. Under the Act, Lund had a right to complain about the 

unsafe act to Logan. He didn't do so at the time (Tr. 683). Further~ he' 

had the right to refuse to work under the circumstances. In addition~ he 

had the right to complain to the safety department or to a joint safety and 

health committee, 

The issuance of a safety letter is an administrative matter resting in 

the management discretion of Anamax. On its face the Anamax safety policy 

appears viable. The uncontroverted evidence shows that Anamax has some 

1500 to 1600 employees (Tr. 603). The safety department has three safety 

inspectors in the field and three industrial hygenists (Tr. 602). The 

safety department receives about 100 to 150 complaints over a 12 month 

period (Tr. 601-602). A safety and health committee must resolve 

complaints about once a week (Tr. 601). 

A careful study of the record might lead one to the conclusion that 

Lund did not want to issue a safety letter to Logan but merely wanted to 

cause the safety department to issue such a letter and advise Lund of the 

accomplished fact (Tr. 484, 485). I conclude, under the circumstances 

here, that in·either event, a company policy that does not require the 

issuance of safety letters to supervisory personnel with hourly employees 

being advised of that fact does not form the basis of a discriminatory 

complaint by an hourly worker. Lund's safety complaint was protected 

activity, but no adverse action was taken against him in retaliation for 

such protected activity. 

XXVII 

LOGAN TAKES LUND'S OPERATOR REPORT 32/ 

Witnesses: Lund, Logan 

205. An operator's report is filled out when a worker operates a 

piece of equipment such as truck (Tr. 336-337). 

32/ Paragraph 34 of the amended petition 

283 
206. The report should be in the operator's possession at all times 

when he is around the equipment (Tr. 337). 

207. Logan took Lund's report because he wanted the list.of materials 

Lund had put on the back of the form (Tr. 685-686). 

208. The materials were to be for the workers on the following shift 

(Tr. 685-686). 

209. Logan overrode Lund's protest and told him he'd see that the 

report got into the proper hands (Ti. 686-687). 

A minor credibility issue arises here. Lund "didn't recall" whether 

there was anything written on the report but Logan says it had a list of 

materials for the subsequent shift. I have resolved this credibility 

determination in favor of Logan due to Lund's failure to recall. 

However, neither version establishes any retalitory conduct by Logan. Lund 

felt he had to have the report or he'd "be in trouble" (Tr. 340-341). 

These events occurred the day after Logan climbed the tower, (in XXVI)s 

but no retaliatory conduct is shown. 

X~:VIII 

LUND ASSERTS HE IS SENT HOME WHEN HE COMPLAINS ABOUT 

FUME INHALATION. HE IS ALSO CHARGED FOR ONE DAY ABSENTEEISM 

AND NOT PAID FOR THE REST OF THE DAY, HE CLAIMS THIS IS 

CONTRARY TO ANAMAX POLICY. ]2/ 

Witnesses: Lund, Miller, Ypulong, Nelson, Pijanowski 

210. On July 6, 1981 Lund inhaled fumes while sodering with silver 

(Tr. 341, 486). 

211. The following morning he experienced profuse sweating and 

vomiting (Tr. 341). 

33/ Paragraph 35 of the amended complaint. 

284 
212. The next day he experienced dizziness while enroute to work (Tr. 

342). 

213. Lund reported for work at 3 p .m. and be fore 4 p .m. he reported 

to Dayton Miller that he was sick and dizzy (Tr. 343). 

214. Miller told Lund he was responsible for him, and they didn't 

want him driving a truck if he felt that way (Tr. 343, 717). 

215. He was sent home on July 7 at approximately 4 p.m., after one 

hour's work (Tr. 343). 

216. Lund wasn't paid for the seven hours he didn't work on July 7, 

and he was assessed a full day's absence (Tr. 345). 

217. When a worker is sent home because of an industrial accident it 

is Anamax 1 s policy to pay the worker's wages for the balance of that day 

(Tr. 505). 

218. Subsequent days, after an injury, are covered under workman 1 s 

compensation (Tr. 505). 

219. If a worker is injured and does not leave work that day but 

returns the following day and then goes home because of the injury he 

receives no pay for the second day other than for hours actual worked on 

the second day (Tr. 506). 

The uncontroverted evidence indicates there is a reasonable basis for 

the Anamax wage policy on the date of an injury and on subsequent days. 

The facts in this incident fail to show any discriminatory conduct against 

Lund. Further, Lund offered no evidence to establish that he was treated 

differently than any other worker under similar circumstances. 

XXIX 

LUND ASSERTS MILLER THREATENED HIM ABOUT HIS 

ATTENDANCE AT THE PRE-TRIAL HEARING IN THE INSTANT 

CASE ON JULY 13, 1981 AND THAT IT WOULD RESULT IN 

ANOTHER THREE DAY SUSPENSION WITHOUT PAY. l!:!._/ 

Witnesses: Lund, Miller 

220. Lund was told that if he took off from the graveyard shift to 

attend the pre-hearing in the instant case he would be assessed for one day 

for being absent (Tr. 347). 

221. Lund was warned that he could incur an additional three day 

suspension (Tr. 348). 

34/ Paragraph 36 of the amended petition. 

285 
222. Miller told Lund he'd be excused for the prehearing but wouldn't 

be paid (Tr. 713~714). 

223. Lund worked the graveyard shift and then came to the prehearing 

(Facts, , 204 XXV, supra. 

A credibility issue arises here. Lund says that with each 

conversation he felt "intimidated and harassed" (Tr. 348). However, 

Miller says he didn't threaten Lund, but when Lund brought in the subpoena 

he checked his attendance record and he stated he had 13-1/2 days and if he 

missed one more day he would get three days off without pay (Tr. 714). 

Lund may have felt intimidated and harassed but no collateral facts 

support his conclusion. A foreman may advise a worker of his attendance 

record without that forming the basis of a discrimination complaint, The 

uncontroverted evidence from Miller is that he treated Lund the same as any 

worker (Tr. 714). As previously noted (XXV) the Anamax policy is 

inherently discriminatory. However, Lund was not adversely affected by 

that policy because he was working the graveyard shift and at the 

completion of that shift he attended the pre-hearing conference. To 

sustain Lund's position here would mean that an operator would be required 

to give a worker time off to prepare his case. Neither the Act nor the 

legislative history support such a proposition. 

TRIAL SANCTIONS 

During the trial Lund asserted that Anamax failed to comply with the 

Corrnnission order authorizing him to take photographs. In addition, Lund 

claimed that witnesses had been told not to appear at the hearing (Tr. 

117). Lund's complaints were treated in the context of a request by him 

for the Judge to impose sanctions on Anamax. 

I conclude that Anamax did not interfere with the.Commission's order, 

and I decline to impose sanctions. Lund offered in evidence and the Judge 

received 25 photographs. Lund alleges that Anamax interfered and refused 

his right to take photographs. (Tr. 358). Particularly, Lund says he did 

not have an opportunity to photograph the weld truck involved in V; in 

addition, he wanted to photograph the conveyors in XXI while the conveyors 

were stopped. Finally, he wante.d a posed picture of a man cutting .and. 

welding. 

The photographs taken.by Lund fairly illustrate his testimony: a 

different weld truck was photographed as well as different conveyor belts, 

Lund did not state and I am unable to find why a posed picture of a worker 

welding was necessary in his proof. I conclude that the Connnission 

discovery order did not require Anamax either to shut down its production 

or to furnish the exact vehicle for photographs. 

During the trial Lund further stated that witnesses had been told not 

to appear at the hearing. Ultimately the facts on this allegation boil 

down to one witness, Rudy Ypulong, who was allegedly told not to appear. 

286 
This witness was an Anamax supervisor._ When Lund identified the witness 

who had been aUegedly interfered with counsel for Anamax indicated Ypulong 

would be called by respondent. No evidence supports Lund's allegations 

that Anamax told any witnesses not to appear at the hearing. 

Finding no basis for Lund 1 s .allegations, I refuse to impose any 

sanctions against Anamax. 

POST TRIAL MOTIONS 

The tr.ial of the above case concluded on August 27, 1981 in Tucson, 

Arizona. 

On September 21, 1981 Lund filed a letter with the Judge. In its 

relevant portions he inquired as to penalties for perjury before the 

Commission. He claimed that a supervisor had lied on the stand and was 

considering a recant. Further, Lund inquired as to how he should treat 

false documentation before the Judge concerning the Anamax safety rule book 

and the "real" burn permit. Further$ Lund asserted he had been 

discharged by Anamax. 

Anamax objected to Lund's communication, moved to strike it, and 

further moved for an order to prohibit Lund from any further attempts to 

supplement or confuse the record. 

On September 29~ 1981 an order was entered treating Lund's letter as E 

motion to reopen the record. In the order the Judge indicated he would 

re'open the record if there was a material defect in the trial proceedings. 

The order further stated that Lund's motion lacked a factual basis to 

determine its validity and Lund was granted additional time to supplement 

his motion. 

When he supplemented his motion Lund offered seven items. The initial· 

two items are a burn permit and an Anamax safety book. 

The burn permit was involved in factual discussion in XII (five 

gallons of solvent under sideframes, half filled). The Judge understands 

this evidence and the receipt of what Lund calls the "real 11 burn permit 

does not affect the result in XII, supra. A burn permit as a cutting/ 

welding permit that addresses fire hazards. 

Lund asserts the Anamax safety booklet received in evidence (R-2) 

contains a different lockout procedure that the one in effect relating to 

XIX (Lund almost loses hand) and XXI (intersecting belts). Facially there 

does appear to be a minimal difference in the revised safety book 

publications but in any event the results in XIX and XXI would not be 

affected by the new evidence, even if true. 

Items 3, 4, and S are MSHA citations and they are offered by Lund to 

counter the testimony of Logan and Caylor. Item 3 contains two MSHA 

citations relating to XIX supra. (Lund almost lost hand). The issuance of 

MSHA citation would not affect the result in XIX. Item 4 also relates to 

287 
inadequate lockout procedures in XXI (intersecting belts). An MSHA 

citation would not affect the results in XXI. 

Item 5 relates to XXVI, supra. (Anamax refuses to issue a safety 

letter to Logan upon Lund's request). The MSHA citation would only support 

the facts as already found in XXVI. Further, such evidence would be 

repetitious. 

Items 6 and 7 relate to Lund's termination by Anamax. This event 

occurred after the testimony was concluded in this case. Since it was not 

an issue raised in the trial I refust to consider it or to reopen the 

record to receive evidence thereon. 

On October 27, 1981 the Solicitor for the Department of Labor under 

the Freedom of Information Act requested a copy of the transcript in this 

case "in order to complete his invest ion of a subsequent complaint of 

discrimination filed by Mr. Lund." 

Lund's supplemental motion to reopen the record did not identi the 

witness who perjured himself nor were further facts mentioned to support: 

Lund 1 s allegations of perjury. 

For the reasons stated I refuse to reopen the record on the basis of 

Lund's supplemental motion. 

CONTENTIONS IN POST TRIAL BRIEF 

Lund's post trial brief raises various issues. They will be treated 

as they appear in his brief. 

Lund's initial contentions are that he was engaged in a protected 

activity, and he was the object of discrimination by the supervisors of 

Anamax. I agree that many of Lund's activities were protected by the Act 

but for the reasons indicated I find no retaliatory conduct by Anamax 

against Lund. Since I did not find any discrimination I reject Lund's 

position that he sustained financial loss. 

Lund's further contention involves the credibility of the testimony of 

various witnesses. 

Lund attacks the testimony of Ypulong concerning his qualifications to 

discuss the construction of the handrail involved in XXII. The ultimate 

construction of the handrail has virtually nothing to do with the 

determination and conclusions in that paragraph. Lund also complains about 

Pijanowski's testimony concerning numerous "unwritten" Anamax policies. I 

find such "unwritten" policies do not destroy the credibility of the Anarnax 

case even when such "unwritten" policies are asserted as a defense. The 

evidence on these issues is essentially uncontroverted. Many of the Anamax 

policies are written. 

Lund's attack on the burn permit was discussed, supra, in his motion 

to reopen the record and the same ruling applies here. 

288 
I agree with Lund when he states in his brief that the burden of 

responsibility for safety rests with the supervisors in each respective 

department in which he works. The Act protects him while engaged in a 

protected activity and further, as outlined in Robinette, supra, of the Act 

protects his refusal to work. ~~--~-

Lund states that the supervisors had a motive for their discriminatory 

conduct since Johnson played the taped testimony he gave to the safety 

department. As previously stated I have found no retaliatory conduct 

against Lund by Anamax's supervisors. 

Lund also contends management treated him in a degrading and 

humiliat manner. Further, he never received this kind of treatment 

until he made his original safety complaint or became involved with MSHA. 

This contention has already been reviewed. In summary I have reached 

contrary conclusions. Lund's claims 1 for the reasons previously 

stated. 

Lund's further argument relates to ~ XXVI (safety letter refused for 

Logan). He claims Logan's reprimand was minimal and private but his 

discipline was public. Lund's facts do not support his allegations. The 

only discipline ever received for safety was the letter outlined in ~ 

IX supra, 

Lund 1 s further argument addresses the events of the telephone calls at 

the hospital. These contentions have already been reviewed in ~i xv~ supra. 

The same ruling pertains. 

Lund attacks Logan's testimony regarding the lockout procedure ('ii XXI, 

supra), (intersecting belts). As previously indicated no conflict exists 

on the facts. The only conflict is whether Lund or Logan was correct in 

the lockout procedures. Subsequent procedural changes by Anamax indicate 

Lund was correct. This does not indicate that Logan lie<l. 

A further argument relates to Lund's asserted intimidation about his 

attendance at the pretrial hearing. These issues were discussed contrary 

to Lund's view in • XXV, and XXIX, supra. 

The further argument is that the personnel files Lund requested for 

his case were incomplete, incorrect, and illegible. Lund did not prove 

the first two allegations and the Judge gave him ample opportunity to 

discuss with Anamax's counsel and to secure copies of any documents that he 

thought were illegible. The two files sat on the court bench throughout 

most of the hearing. 

Lund's additional argument centers on the photographs. This issue was 

discussed under "Trial Sanctions." 

A further argument focuses on the apparent reprinting of the Anamax 

safety booklet. This was discussed under the "Motion to reopen the 

record." 

289 
Lund also contends documentation he received in the case was not 

timely surrendered, as ordered at the prehearing but An~max stalled until 

an order issued, I reject this argument. Lund does not identify the 

"documentation" nor does he claim to.be prejudiced by any delay if there 

was any. 

The further proposition Lund urges is that Anamax did not surrender 

the cassette tapes. This was discussed and decided in , XVIII, supra. In 

view of my prior discussion I conclude that the order to produce the 

cassette was unprovidently issued and it is vacated. Lund was able to 

testify at length as to the nature, scope, and context of his statements to 

the Anamax safety department. No issue of fact arose in the case involving 

the tapes. Lund therefore suffered no prejudice because of the 

unavailability of the tapes. 

Lund further argues that Anamax' s ·counsel, Steven Weatherspoon$ was a 

major obstacle for him to deal with in the presentation of his case. He 

complains of Weatherspoon's defiance of Cormnission orders, profane 

language$ conduct he considers unethical, refusal to surrender evidence, 

and false documentation, He also moves for disciplinary proceedings 

against Anamax 1 s counsel. 

Lund's arguments involving Anamax 9 s counsel have already been reviewed 

in connection with the photographs at the mine, or in connection with his 

motion to reopen the record, While the Commission may discipline 

practitioners before it, 30 C.F.R, § 2700.80, there is no factual bas to 

support Lund's contentions. In all proceedings herein Steven Weatherspoon 

conducted himself in accordance with the highest standards of ethical 

conduct required of practitioners before this Commission. However, in view 

of Lund's allegations the Judge reviewed his depositions on file with the 

Commission. The depositions were taken on August 14, 1981 and August 21, 

1981. Nothing in the depositions support Lund's contentions. For these 

reasons I deny Lund's motion to discipline Counsel for Anamax. 

SUMMARY 

The record supports Lund's position that he had a reasonable belief 

that various safety hazards existed at the Anamax mine (particularly in 

paragraphs I, II, V, XII, XIII, XVI, XIX, XXI, XXVI). Furtherj the 

Congress intended that miners would play an active part in the enforcement 

of the Act. However, even in those situations "'11ere a safety hazard 

existed the record fails to establish retaliation against Lund because of 

his concerns about safety. Without retaliatory conduct on the part of 

Anamax in response to Lund's protected activity no discrimination can occur 

under the Act. 

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

hereby enter the following: 

290 
ORDER 

1. The amended complaint of discrimination filed herein is dismissed. 

2. The motion to reopen the record is denied. 

3. The motion to discipline Steven Weatherspoon, counsel for 

respondent, is denied. 

Distribution: 

Donald Lund 

4545 South Mission, #159 

Tucson, Arizona 85714 

Steven Weatherspoon, Esq. 

Chandler, Tullar, Udall & Redhair 

Arizona Bank Plaza, Suite 1700 

33 N. Stone Avenue 

Tucson, Arizona 85701 

Law Judge 

291 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 5 1982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Complaint of Discharge, Discrimination, 

or Interference 

on behalf of. CLYDE SMITH, ·JR. , : 

JAMES R. CLEVENGER, MONROE 

MULLINS, DAVID MAY, JERRY LEE 

SMITH, JOHN R. TELFER, JR., 

JAMES THACKER, H. K. TILLEY, 

JR., AND THOMAS W. WALKER, 

Complainants: 

v. 

MULLIN CREEK COAL COMPANY, INC.,: 

Respondent 

DECISION 

Docket No. KENT 81-17-D 

No. 1 Mine 

Appearances: Darryl A. Stewart~ Esq., Office of the Solicitor, U.S. Department of Labor, for Complainants; 

Before: 

Charles E. Lowe, Esq., Lowe & Lowe, Pikeville, Kentucky, for 

Respondent. 

Administrative Law Judge Steffey 

Two hearing sessions were held in the above-entitled proceeding. The 

first hearing was held on March .6 and 7, 1981, in Pikeville, Kentucky, and 

pertained only to the merits of complainants' contention that they had been 

discharged in violation of section 105(c)(l), 30 U.S.C. § 815(c)(l), of the 

Federal Mine Safety and Health Act of 1977. A bench decision was mailed to 

the parties on March 17, 1981. The bench decision found that all nine complainants had been discharged in violation of section 105(c)(l) of the Act 

and paragraph (B) of the bench decision provided for reinstatement of the 

four miners who had requested reinstatement and paragraph (C) of the bench 

decision ordered respondent to make payments of back pay to all nine complainants. Paragraph (G) of the order accompanying the bench decision provided 

for an additional hearing for the purpose of determining the facts required 

to compute back pay. The second phase of the hearing in this proceeding was 

held on November 17, 1981, in Prestonsburg, Kentucky, and a 17-page order 

was issued on January 12, 1982, setting forth the methodology to be used in 

computing back pay. 

Counsel for the parties filed on February 1, 1982, two letters showing 

that counsel for the parties agree to the correctness of the calculations for 

back pay computed by complainants' counsel. The parties have not raised any 

issues with respect to the methodology I used in directing the computation of 

back pay. Therefore, I find that the calculations submitted by complainants' 

counsel in his letter of January 22, 1982, should be used as the basis for 

ordering payment of back pay and the letters of counsel showing agreement as 

to the calculations are attached as an appendix to this decision, 

292 
WHEREFORE, it is ordered: 

(A) The 16-page bench decision mailed to the parties on March 17, 1981, 

is confirmed and hereby issued as the final decision on the merits of the 

discrimination charges alleged in this proceeding. 

(B) The final decision in this proceeding is comprised of: (1) the 

16-page bench decision confirmed in paragraph (A) above, (2) the two-page 

Order Granting Request for Extension of Time, (3) the 16-page Order Providing 

for Computation of Back Pay, and (4) the six-page Appendix made up of letters 

from the parties agreeing to the computations of back pay. 

(C) Paragraph (B) of the bench decision is confirmed, to wit, the Complaint of Discharge, Discrimination, or Interference filed in this proceeding 

on October 24, 1980, is granted for the reasons given in the bench decision 

confirmed in paragraph (A) above. 

(D) Paragraph (B) of the bench decision is rescinded as moot because 

respondent has already reinstated all of the complainants who wished to be 

reinstated. 

(E) Paragraph (C) of the bench decision is rescinded as moot because 

back pay has been computed and payment is awarded in paragraph (J) below. 

(F) Paragraph (D) of the bench decision is rescinded as moot because 

respondent has already provided the basic data required for computing back pay" 

(G) Paragraph (E) of the bench decision is rescinded as moot because 

the parties have already participated in the gathering of the necessary data 

for computing back pay. 

(H) Paragraph (F) of the bench decision is confirmed, to wit, the 

employment records of all nine cowplainants shall be completely expunged of 

all references to their unlawful discharge and matters relating thereto. 

(I) Paragraph (G) of the bench decision is rescinded as moot because 

counsel for the parties have already requested a reconvening of the hearing 

for the purpose of determining back-pay data, the hearing has already been 

held, and the amount of back pay due to each complainant has been computed. 

(J) Respondent, within 30 days from the date of this decision, shall pay 

each complainant the amount set forth after his name in the tabulation below 9 

together with interest at 12 percent per annum. 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

Thomas V. Walker .. o •••••••••••••• °' • o •••• 

John R. Telfer, Jr. ••••••••••••e•o•••••• 

Clyde Smith, Jr. •••••••o•••••••••••••o•• 

James R. Clevenger••••••••••••••••&••••• 

Jerry Lee Smith ........................ . 

David May •••••. c. ••••••••• o •••••••••••••• 

293 

$16,226.95 

15,979.90 

10,478.15 

26,410.30 

17,082.30 

13, 241. 65 
(7) 

{8) 

{9) 

Distribution: 

H. K. Tilley, Jr. . .................... . 19,224.95 

4,484.70 

1,830.00 

Monroe Mullins ...•..................... 

James Thacker 

~e-~z;g. Richard C. Steffey~ Administrative Law Judge 

(Phone: 703-756-6225) 

Darryl A. Stewart, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 {Certified Mail) 

Charles E. Lowe, Esq., Attorney for Mullin Creek Coal Company, Inc.D 

Lowe & Lowe, P.O. Box 69, Pikeville, KY 41501 (Certified Mail) 

MSHA, Special Invest~gations, U.S. Department of Labor 9 4015 Wilson 

Boulevard, Arlington, VA 22203 

Assistant Solicitor, U.S. Department of Labor 9 4015 Wilson BoulevardD 

Arlington~ VA 22203 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

The 16-page bench decision reproduced below was 

mailed to the parties on March 17~ 1981, and is confirmed 

by paragraph (A) above as the final decision on the 

merits of the discrimination charges raised in this 

proceeding" 

This hearing involves a Complaint of Discharge, Discrimination, or Interference filed on October 24, 1980, in Docket No. KENT 81-17-D by the Secretary 

of Labor and the Mine Safety and Health Administration on behalf of nine coal 

miners, namely, Clyde Jr. Smith, James R. Clevenger, Monroe Mullins, David May, 

Jerry Lee Smith, John R. Telfer, Jr., James Thacker, H.K. Tilley Jr., and 

Thomas v. Walker, pursuant to section 105(c)(2), 30 U.S.C. § 815(c)(2), of the 

Federal Mine Safety and Health Act of 1977, alleging that complainants were 

illegally discharged by Mullin Creek Coal Company, Inc., on or about April 10, 

1980, because they had withdrawn from'Mullin Creek's No. 1 Mine and had refused 

to produce coal from an area of the mine having allegedly unsafe and hazardous 

roof condi t.ions. 

The issues raised by the Complaint are whether respondent violated section lOS(c)(l) of the Act so as to entitle the complainants to the relief they 

are seeking under section 105(c)(2) of the Act. My decision will be based on 

the findings of fact which are set forth below: 

295 
Findings of Fact 

1. The No. 1 Mine of Mullin Creek Coal Company, Inc., has two working 

sections. On April 10, 1980, when most of the events resulting in the filing 

of the Complaint in this proceeding occurred, a continuous-mining machine was 

being used in one section and conventional mining procedures were being used 

in the other section. The men using the conventional equipment were engaged 

in secondary mining or the extracting of pillars. Two production shifts per 

day were used in the pillar-recovery section. Respondent has stipulated that 

it is subject to the provisions of the Act and to the regulations promulgated 

thereunder. 

2o Jerry Lee Smith was the operator of the roof-bolting machine on the 

3-p.m.-to-11-p.m. shift and had worked at the No. 1 Mine for about 1 year 

prior to April 10, 1980. He left the mine about 6 p.m. on April 10 because 

he claimed that hazardous conditions made it unsafe for him to work. He 

described the unsafe conditions as an absence of the proper number 'of breaker 

posts, excessively wide bolting places, and lack of timbers for use as line 

posts or roadway posts. He claimed that such wide cuts of coal had been taken 

from the No. 2 and No. 3 pillars, that he had to install 32 bolts on 4-foot 

centers instead of the 15 bolts which would have been required if exce 

wide cuts had not been taken. Smith also refused to install bolts in the 

No. 7 pillar after the coal was loaded because the roof just outby that pillar 

had dropped down about 2 or 3 inches. Smith said that it was unsafe to pass 

under that portion of bad roof in order to bolt the roof in the fresh cut 

which had been loaded from the No. 7 pillar. Smith also claimed that eight 

breaker posts were required to be set inby the end of pillar but in 

one entry in the entire line of pillars had breaker posts been set, and even 

for that single entry, only six of the eight required posts had been installed. 

Also, Smith said that an adequate amount of air was not reaching the working 

face because of the complete absence of brattice curtains. Smith asks that 

he be reinstated to his former position. 

3. Monroe Mullins was the operator of the cutting machine in the pillarrecovery section on the 3-to-11-p.m. shift on April 10, 1980. He had worked 

at the No. 1 Mine about 4 months prior to April 10. Mullins left the mine 

about 6 p.m. on April 10 because he believed it was unsafe to work in the 

mine. Mullins claimed that six breaker posts had been installed in only one 

entry out of seven entries, and that in the single entry where breaker posts 

had been set, only six had been set of the eight which were required. Mullins 

asked the section foreman for additional timbers, but the section foreman told 

him to run coal and no timbers were provided. Mullins also stated that proper 

ventilation was lacking because no brattice curtains at all had been installed. 

All seven pillars had been completely cut from one side to the other without 

leaving wings on either side of the pillars. Mullins asks that he be reinstated to his former position as operator of the roof-bolting machine. 

4. Thomas v. Walker now works for the A and S Coal Company and does not 

ask to be reinstated to his former position at Mullin Creek's mine. On 

April 10, 1980, Walker was the "shot firer 11 ·or the person who filled holes 

296 
with explosives and detonated them. Walker left the mine on April 10 at about 

6 p.m. because he considered the mine to be unsafe. The conditions which he 

described were that the entire ends of all seven pillars had been drilled and 

undercut. No timbers had been installed by the previous day shift, but timbers 

were brought in and set for him to shoot the coal down in the No. 7 pillar. 

Walker had difficulty in shooting the other pillars because of their having 

been drilled and undercut all the way across the pillars. The undercutting 

had weakened the coal to be shot to such an extent, that the coal was settling 

down to the floor of the mine and causing the holes which had been drilled for 

insertion of explosives to be crushed and obliterated. Despite that problem, 

Walker was able to shoot coal in the No. 6 pillar; he shot only half of the 

No. 5 pillar; he shot all of the No. 4 pillar and half of No. 3. The coal had 

fallen so badly in the No. 1 and No. 2 pillars, that he was unable to shoot 

any part of them. The hazard which upset Walker the most was that the roof was 

tending to override the working section and all coal fell so far into the area 

where he was working that his powder and detonators were covered by falling 

coal and it was necessary for him to dig them out of the coal so that he could 

finish shooting the pillars where holes were still visibleo Walker was also 

concerned about being asked to set timbers beside the loading machine while 

it was still in operationo Walker additionally resented the fact that the 

section foreman would not stop the loading machine long enough for the miners 

to determine from sound whether the roof and timbers were making noises indicating an imminent roof fall. Walker was also concerned about the poor 

ventilation that existed as a result of the complete absence of brattice 

curtains on the sectiono 

5. Ho Ko Tilley was working at the Noo l Mine on April 10, 1980c P£ is 

unemployed at the present time and would like to be reinstated. On April 9, 

Tilley had worked as an operator of a ram car, but when he went into the mine 

on April 10, the mine foreman told him that his job was being changed from 

that of operator of a ram car to that of helper for the operator of the roofbolting machine. He left the mine on April 10 at or about 6 p.m. because he 

feared for his safety. 1he hazards he described were that all pillars had 

been cut from one side to the other without leaving wings on each side. He 

also was concerned about the c.omplete lack of any brattice curtains on the 

section. Tilley was upset about having been transferred suddenly to the 

position of helper for the operator of the roof-bolting machine without 

having received any prior training to do that kind of work. 

6. James Thacker was an operator of a ram car on April 10, 1980. He is 

now working for Preece Coal Company and does not want to be reinstated to his 

former position. Thacker left the mine on April 10 after working only a few 

hours. The hazards he was upset and nervous about consisted of cracked roof 9 

availability of only one or two timbers, and failure of ventilation. He saw 

no brattice curtains at all on the section. Thacker said that failure to set 

timbers prevents the miners from having a means of being warned by the cracking of timbers if the roof should begin to fall prematurely or suddenly. 

7. Clyde Smith was working at Mullin Creek's mine on April 10, 1980. He 

is now working for the McGinnes Coal Company and does not want to be reinstated. When Smith came to work at 3 p.m. on April 10, 1980, he was told that 
his job had been changed from that of operator of the coal drill to that of a 

general laborer. Smith went to the face area and spent the first part of the 

shift installing six timbers between the No. 2 pillar and the No. 3 pillar. 

Two other miners helped him set those six timbers which had to be cut with a 

dull saw. Smith realized that no timbers were available to set in other 

places where they were needed and requested the section foreman to get them. 

David May, one of the men helping Smith set timbers, stated that he would see 

the section foreman about obtaining additional timbers. Smith was concerned 

about lack of ventilation which resulted from a complete absence of brattice 

curtains. Smith asked the section foreman to get additional pillars and the 

section foreman said he would worry about availability of timbers and refused 

to stop production until timbers could be set. Smith considered conditions 

in the mine to be so bad that he became upset and nervous and left the mine 

after working only a few hours. 

8. David May is now working for Dot Coal Company. He does not want to 

be reinstated to his former position. May was working at Mullin Creek's No. l 

Mine on April 10, 1980, as a beltman and general laborer. He went into the 

mine about 3 p.m. and saw several unsafe conditions~ including cracked roof 

pillars being cut all the way across the ends, and poor ventilation because 

of the complete lack of brattice curtains. May asked the section foreman for 

additional timbers and the section foreman promised to have some brought into 

the mine. May waited at the power center for the timbers to be brought in~ 

but they did not arrive before the mine foreman came into the mine and called 

all men together for a talk which was highly critical of their working habitso 

May became upset after the foreman~s speech and left the mine a short time 

afterward, believing that conditions in the mine were too unsafe for him to 

continue working there. 

9. John R. Telfer, Jr., now works for Wolf Creek Collieries and does not 

want to be reinstated to his former position at Mullin Creek's mine. Telfer 

was working on the 3-to-11-p.m. shift on April 10, 1980. He had been a helper 

for the operator of the roof-bolting machine, but when he entered the mine to 

work on April 10, he was given the job of being an operator of a ram car. He 

believed conditions to be unsafe in the mine because the pillars had been cut 

all the way across the ends and there was a complete lack of brattice curtains. 

There were not enough timbers on the section and Telfer asked the section 

foreman to get some timbers, but the section foreman declined to stop production to install timbers and told Telfer to haul coal. Telfer left about 6 p.m. 

after deciding that conditions were too hazardous for him to continue working 

on the section. 

10. James R. Clevenger was working at Mullin Creek's mine on April 10, 

1980, as a repairman. He is presently unemployed and would like to be reinstated to his former position. He left the mine on April 10 about 6 p.m. 

after deciding that conditions were too hazardous for him to continue working. The conditions he described were that the pillars had been cut all the 

way across, that complete lack of any brattice curtains failed to provide 

proper ventilation, and that no roadway timbers had been set. He repaired a 

cutting machine and a tractor for a ram car ·before he stopped working on 

April 10, 1980. 

298 
11. All of the nine complainants named in the preceding paragraphs 

stated that when they were leaving the mine property on April 10, the mine 

foreman saw them on the surface of the mine and stated, as they passed the 

mine office, that he would interpret their leaving before the shift had 

expired as a voluntary resignation or act of quitting. All of the complainants stated that they disagreed with the mine foreman's position and some of 

them told the mine foreman that they were not quitting and would report to 

work the next day. 

12. When complainants returned to work on Friday, April 11, 1980, the 

day after they had declined to work in unsafe conditions, they first went by 

the office to pick up their paychecks. The checks were accompanied by nquit" 

slips which the men refused to accept. According to the testimony of respondent's bookkeeper and one of the former owners of the mine, Kenneth Stanley, 

the quit slips were supplemented on Monday, April 14, 1980, with lay-off slipso 

The lay-off slips allowed the complainants to draw unemployment compensation 

after April 10, 1980, whereas the "quit" slips would not permit them to claim 

unemployment compensation. 

13. Stanley was at the mine office when complainants picked up their 

checks on April 11, 1980, and he talked to them individually, or in a group, 

in his office. He asked them to call him after he had investigated their 

complaints. They did call back on Monday, April 14, 1980, and Stanley, or 

his secretary, told them that they no longer had jobs at Mullin Creek's mineo 

140 All of the complainants testified that they received certified 

letters asking them to come back to work on May 1, 1980. All of them 

returned to work after receiving the certified letters. None of the nine 

complainants were reinstated to their former positions on a production shift. 

Instead, they were assigned work related to laying track in the mine for the 

purpose of opening a new section which would use a continuous-mining machine. 

On May 9, 1980, after they had worked less than 2 weeks, all of the complainants received lay-off slips. According to the testimony of Earl Tolman and 

Debbie Stanley, who worked in respondent's office, on May 9, 1980, the same 

day that complainants were laid off, a total of 23 miners, including complainants, were laid off. On May 30, 1980, 11 additional miners were laid 

off; on June 3, 1980, 10 miners were laid off; and on June 6, 1980, 3 miners 

were laid off. 

15. Two MSHA inspectors, named Hugh v. Smith and Danny Harmon, conducted 

a spot inspection of respondent's No. 1 Mine on April 11, 1980, the day after 

the complainants had left the mine in protest of unsafe conditions. Inspector 

Smith wrote Citation No. 713379 at 4:15 p.m., under section 104(d)(l) of the 

Act, alleging that a violation of 30 C.F.R. § 75.200 had occurred in the area 

of the mine where retreat mining was in progress. The citation state's that 

respondent's roof-control plan had been violated by the failure of respondent 

to install roadway posts in the Nos. 1, 2, and 3 pillar blocks and by the 

failure to use wooden cap blocks on the radius turn posts that had been 

installed in the Nos. 1-6 pillar blocks. The citation also alleges that the 

pillar blocks appeared to be taking weight because coal was sloughing from the 

299 
ribs and reducing the size of the pillar blocks. The other inspector, Danny 

Hannon, issued Withdrawal Order No. 730125 at 5:45 p.m. on April 11, 1980, 

alleging a violation of 30 C.F.R. § 75.301 because the minumum quantity of 

9,000 cubic feet per minute of air was not reaching the last open crosscut to 

carry away any hanuful dust and explosive gases which might have accumulated 

in the mine. The order stated that there was insufficient air movement to 

turn the blades of an anemometer. Inspector Harmon stated that no brattice 

curtains at all had been installed on the section and that 10 brattice curtains had to be erected to direct an adequate volume of air to the last open 

crosscut on the working section. 

16. Kenneth Stanley was a co-owner of the No. 1 Mine on April 10, 1980, 

when complainants left the mine after objecting to the hazardous conditions 

which existed in the mine. Stanley sold his stock in June 1980 and, at the 

time of the hearing held in March 1981, Stanley had no interest in Mullin 

Creek Coal Company. On April 11, 1980, when complainants reported to the 

mine office to pick up their checks, Stanley asked the miners to come into 

his office to discuss the reason for their leaving the mine on April lOo He 

talked to three or four of them individually and then all of them came into 

his office at once. Stanley stated that the reason they gave for walking 

out was that they were upset and nervous about the way the mine foreman had 

talked to them on April 10. As indicated in Finding No. 13 above, Stanley 

investigated their complaints and then advised all of them that they no longer 

had jobs at Mullin Creek's mine" 

170 Both Stanley and respondent 1 s bookkeeper testified that the miners 

came to the mine dressed in casual clothes and that none of them wore hardhats or other clothing required for working underground. Both Stanley and 

the bookkeeper saw the miners when they came for their checks around 11 a.m. 

or noon and did not know whether the miners had brought their working clothes 

with them for use around 3 p.m. when the second shift on which they worked 

began. 

18. Stanley stated that the mine foreman on the second shift, Elbert 

Church, had reported to him that the complainants had left the mine before 

their shift had ended, but Stanley could not recall whether Church had given 

him a reason for complainants' leaving. Stanley stated that instructions had 

been placed on the bulletin board and that all miners had been told that they 

should report any unsafe conditions first to the section foreman, then to the 

mine foreman, then to him, and that if the unsafe conditions were not eliminated by any of the management personnel at the mine, the unsafe conditions 

should be reported to both the State and Federal inspectors. 

19. Freddie Meade is a ram car operator who was hauling coal on the 

second shift (3-to-11-p.m.) when the complainants left the mine. He said that 

one of the complainants, Clyde Smith, tried to get him to leave at the time 

the nine complainants left, but he declined to leave. Meade said that the 

miners on the day shift were not setting timbers on their shift and that the 

men on the second shift resented having to install timbers which should have 

been set by the miners who worked on the day shift. Meade stated that the 

300 
required number of timbers had not been set on the second shift on April 10, 

but he claimed that plenty of timbers could be found within three breaks of 

the face and that the operators of the ram cars would bring timbers to the 

working face if they were needed. Meade testified that there were plenty of 

brattice curtains in the mine, but he did not like to see curtains hung near 

the face because, in his opinion, they are a hazard to the loading of coal 

because they obstruct vision. Meade agreed that conditions on the section 

were unsafe on April 11 when the inspectors examined the mine. 

20. Bobby Smith was the operator of the loading machine on April 10, 

1980, when the nine complainants left the mine before their second shift had 

ended. He agreed with the nine complainants that conditions in the mine were 

bad on April 10 because the pillars had been cut all the way across, no 

brattice curtains had been installed, and no roadway posts had been erectedo 

Bobby Smith, however, said that no one complained about not having timbers,, 

He also said that the reason the men left the mine on April 10 was that they 

were upset because the mine foreman, Elbert Church, had changed some of their 

positions around, such as Clyde Smith 7 s reassignment to setting timbers and 

H. K. Tilley7 s reassignment as helper for the operator of the roof-bol 

machine. Bobby Smith said that the complainants were also upset because 

were having to set timbers on their shift which should have been set on the 

day shift. Bobby stated that in Church's speech to the men on the second 

shift on April 10~ Elbert Church, the mine foreman, emphasized the fact that 

he could not do anything about the way the day shift did its work, but that 

he was responsible for the way they (the miners on the 3-11 porno shift) did 

their work. Church also made it clear to the miners on the second shift that 

they would have to increase production on their shift because the second 

shift's production had declined considerably. 

21. Bobby Smith also emphasized the fact that the miners on the second 

shift were deliberately doing acts which interfered with production. He 

mentioned such acts as deliberately stalling a ram car in a mud hole, throwing 

a metal guard on the belt to stall it, and dumping coal on the feeder when 

the beltline was already stalled. Smith claimed to have personal knowledge 

only as to the stalling of the ram car. 

22. Lawrence Kindrick is a certified mine foreman and is now working for 

Moore and Moore Coal Company, but on April 10 he was employed by respondent and 

was operating a coal drill on the 3-to-11 p.m. shift. He testified that the 

mine foreman, Elbert Church, made a speech to the miners toward the first part 

of the shift. The miners were upset about the things Church said and left the 

mine, but Kindrick did not know when they left. He stated that he saw nothing 

unsafe that night. Although he first.stated that he did not recall how the 

section looked, he thereafter stated that the section was being ventilated, 

that timbers had been set in each entry, and that there were plenty of timbers 

available on the section. 

23. Elbert Church was the mine foreman on the 3-to-11 p.m. shift on 

April 10, 1980, when the complainants in this proceeding left the mine before 

their shift was over. He has worked for respondent for the past 4 years. He 

301 
stated that production on the second shift had dropped to about half of the 

amounts previously produced. He called the miners together on the night of 

April 10 and told them that the section would be closed down if they did not 

start producing more coal than they had been producing. He told them that 

they were idle an excessive amount of the time and that if he found them 

loafing when the section foreman had assigned them work to do, they would be 

discharged on the spot. Church said that the miners on his shift had been 

complaining because they had to set the timbers which the day shift should 

have installed. He said that he told them the day shift was the day-shift 

foreman's responsibility and that he would let the day-shift foreman worry 

about that shift and that he would worry about his shift. 

24. In Church's opinion, the complainants had left on April 10 because, 

in his speech to them, he had threatened to fire them if they continued to 

loaf when they should be working. Church agreed with the testimony of one of 

the complainants, Clyde Smith, to the effect that Church had refused to grant 

Smith's request for permission to talk to Church after Church had completed 

making his speech on April 10. Church said the reason that he refused to 

talk to Smith was that Smith had, on a previous occasion, talked to Church 

for 45 minutes during a production shift. For that reason, Church believed 

that anything Smith might have to say to him could be postponed to the end of 

the shift. Church stated that he would not ask miners to work in unsafe conditions and claimed that he had had brattice curtains installed to within two 

crosscuts of the working face. Church testified that he was on the surface 

of the mine when complainants left early on April 10 and that he warned them 

at the time they left that he would consider their leaving to be the same as 

if they had been discharged. 

Violations of Section 105(c)(l) of the Act Were Proven To Have Occurred 

I believe that the 24 Findings of Fact set forth above summarize the basic 

facts on which my decision should be based. The ultimate question raised by 

the Complaint in this proceeding is whether violations of section 105(c)(l) 

occurred. Section 105(c)(l) provides, in pertinent part, that: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the 

statutory rights of any miner * * * in any coal mine subject 

to this Act because such miner * * * has filed or made a complaint under or related to this Act, including a complaint 

notifying the operator or the operator's agent * * * at the 

coal * * * mine of an alleged danger or safety or health violation in a coal * * * mine, * * * or because of the exercise by such miner * * * on behalf of himself or others of 

any statutory right afforded by this Act. 

The section foreman, Joe Beard, to whom complainants reported safety and 

health violations, did not testify as a wit~ess to this proceeding. Several 

of the complainants testified that they had complained to him about a lack of 

302 
timbers to set on the evening of April 10, that they had complained about the 

unsafe roof conditions that existed on April 10, and that they had complained 

about the lack of ventilation caused by the nonexistence of brattice curtains. 

Respondent's witnesses did not purport to claim that they were in the presence 

of the section foreman at all times on April 10 so as to be able to state that 

no safety complaints were made to the section foreman. 

Complainants' testimony to the effect that they complained about safety 

clearly preponderates, especially in the absence of any testimony by the section foreman giving his version of the events which occurred on April 10. 

The·Commission held in Local Union No. 1110, UMWA v. Consolidation Coal Co., 

2 FMSHRC 2812 (1980), that it is unrealistic to require that each of a group 

of miners make his own individual complaint about safety if he knows that 

other miners have already complained without receiving any improvement in 

conditions. 

There can be no doubt about the existence of unsafe conditions in the 

mine on the 3-to-11 p.m. shift on April 10, 1980. Even respondent 1 s witnesses, with the exception of Lawrence Kindrick, testified that conditions 

in the mine were unsafe on April 10, 1980. Kindrick's testimony is entitled 

to almost no weight because he first testified that he did not recall what 

conditions existed on April 10 and thereafter stated that timbers had been 

set and that ventilation curtains had been installed. 

The mine foreman stated that brattice curtains had been installed to 

within two crosscuts of the working face. Even if that were true~ curtains 

installed within two crosscuts of the working face will not provide the volume 

of 9,000 cubic feet per minute of air at the last open crosscut which is 

required by 30 C.F.R. § 75.301. Therefore, the mine foreman's testimony does 

not controvert the complainants' contention that proper ventilation was not 

being provided on April 10. Moreover, the mine foreman stated that he rejected 

the complainants' objections to having to install timbers which should have 

been set by the day shift on the ground that he was not responsible for the 

failure of the day shift to comply with respondent's roof-control plan. The 

mine foreman completely ignored the fact that the day shift's failure to 

install timbers caused the miners on his shift to be exposed to unsafe roof 

conditions until the miners on his shift could install the timbers which had 

not been erected by the day shift. The mine foreman's excuse that the day 

shift's foreman could worry about the day shift and that he would worry about 

the night shift was a clear failure on his part to carry out his responsibility 

to see that the working section was safe. Obviously, one of the reasons that 

his second .shift's production had declined was that his men were having to do 

the roof-support work which should have been perfonned by the crew of men who 

worked on the day shift. It is not surprising that his men became upset 

when he threatened to fire them for loafing and refused to listen to their 

complaints. 

303 
Respondent's Claim that Miners Did Not Stop Working Because of Unsafe 

Conditions 

The primary defense which respondent makes to the complainants' contention that they refused to work on April 10 because of the un~afe conditions 

in the mine, is that all of the miners who refused to work gave as their reason for refusing to work that they they were upset and nervous. Nearly all of the 

complainants testified that they were nervous and upset when they refused to 

work on April 10. That would be a norm.al reaction fqr men to have who were 

exposed to unsafe roof conditions each day when they reported to work. That 

would also be a normal reaction for men to have when their foreman blames 

them for failure to produce large quantities of coal while simultaneously 

expecting them to do the roof-control work which should have been performed 

by the miners on the day shift. 

Every one of the unsafe and unhealthful conditions cited by the compiainants who refused to work was corroborated by the testimony of respondent 1 s 

own witnesses. The mine foreman conceded that one of the complainants had 

been sent to obtain a supply of timbers and therefore was not present at the 

time he made his speech threatening to fire the men if they did not increase 

their production of coalo The fact that a man had been sent to obtain timbers 

supports the complainants 1 contention that an adequate supply of timbers was 

unavailable on the section at the time they were told to set timbers" 

The complainants' contention that timbers were not being set by the 

shift is also supported by the fact that when Inspector Smith examined the 

mine on April 11, the day after the men refused to work because of unsafe 

roof conditions, he cited respondent for an unwarrantable failure violation 

of its roof-control plan in that roadway posts had not been set in the Noso 

1, 2 and 3 pillar blocks, that cap blocks were not being used on the radius 

turn posts that had been installed in the Nos. 1 to 6 pillar blocks. Additionally, the inspector noted that two of the pillar blocks had been dangered 

off by respondent as being unsafe for extraction operations. The danger signs 

had been erected on the next shift following the one on which the complainants 

had refused to work. The inspector's finding of unsafe roof conditions on 

April 11 is strong corroboration for the complainants' contention that the 

roof was unsafe at the time. they refused to work. 

As to the complainants' contention that an inadequate amount of air was 

being provided at the working face, Inspector Harmon wrote an order of withdrawal under the unwarrantable failure provisions of the Act on the next day 

after the men refused to work. The reason given for his writing the order 

was that his anemometer would not even turn when he tried to determine 

whether the required volume of 9,000 cubic feet of air per minute was being 

provided at the last open crosscut. Inspector Harmon testified that no 

brattice curtains whatsoever had been installed in the working section and 

that it was necessary for the miners to erect 10 brattice curtains before 

an adequate volume of air could be directed to the working face. The 

inspector's finding on April 11 as to a complete lack of brattice curtains 

is strong corroboration for the complainants' contention that the section 

was not being ventilated properly on April 10 when they refused to work~ 

304 
As I have indicated above, respondent's mine foreman conceded that curtains had been installed only up to two crosscuts from the working face. It 

is not likely that the day shift would have come in and torn down the curtains on the morning of April 11 if they had actually existed on the evening 

of April 10. Even assuming that the mine foreman's testimony is correct, the 

lack of curtains for a distance of two crosscuts from the place where complainants were working would have failed to provide adequate ventilation at 

the working face. 

It is true that Stanley, one of respondent's co-owners, claims to have 

interviewed the men on April 11 after they had walked out on April 10. He 

claims that the men defended their refusal to work only on the grounds that 

they were nervous and upset and that they did not complain about unsafe or 

hazardous conditions on April 11. Stanley promised to investigate the cause 

of their being upset and nervous, but the only investigation he made was to 

ask the mine foreman what had happened. Stanley did not go underground on 

either April 10 or April 11 to examine the working section. He had told the 

complainants to call him on Monday after he had finished his investigationo 

When the complainants did call, Stanley told them that he no longer had a 

job for them. 

The conditions described by the complainants on April 10 and the conditions described by the inspectors on April 11 would be expected to cause 

miners to be upset and nervous. The fact that complainants may not have 

articulated the reason for their being upset and nervous at the time they 

refused to work is not a sufficient reason to dismiss the Complaint when 

the evidence shows that working conditions in the mine were both unsafe and 

unhealthful at the time they refused to work. Several of the complainants 

testified that they were too nervous to eat their lunch and one man was so 

upset that he vomited. 

It should be noted that the mine foreman did not try to determine the 

cause of their refusal to work.· The only action he took when he saw the 

complainants leaving on April 10 was to tell them as they walked past his 

office that he would consider them to have been discharged if they walked 

out before the shift had been completed. 

The Alleged Sabotage 

Respondent claims that the miners were committing acts of sabotage in 

the mine. The mine foreman testified that the miners were throwing objects 

into the feeder and on the conveyor belt for the purpose of causing it to 

become so choked with foreign materials that the equipment had to be stopped 

while the clogging materials were extricated. The operator of the loading 

machine claimed that he saw one of the complainants deliberately drive a ' 

ram car in a mud hole for the purpose of rendering it inoperative. 

One of the complainants, James Clevenger, testified that he repaired a 

wire in the control panel on the ram car. No one tried to controvert 

Clevenger's claim that he repaired a wire in the ram car. Therefore, the 

305 
evidence is at least equivocal as to whether the ram car was deliberately 

stuck in a mud hole or simply ceased to run because of the defective wire 

at the time it became mired in mud. 

Respondent does not take the position that it discharged complainants 

because of the alleged acts of sabotage described above. Since Respondent 

does not claim.that it discharged complainants because of the alleged acts 

of sabotage, it is unclear to me just how respondent would have me use its 

claim that complainants were deliberately trying to slow down production. 

Respondent's Claim that Complainants Refused To Work Because of Peer Pressure 

Respondent claims that complainants refused to work on April 10 because 

several of the miners' jobs had been changed. The mine foreman changed H. K. 

Tilley 1 s job from that of an operator of a ram car to that of a helper to the 

operator of the roof-bolting machine and the mine foreman changed Clyde Smithvs 

job from operator of the coal drill to that of setting timbers" Two of the 

men (Freddie Meade and Bobby Smith) who remained in the mine and continued 

working on April 10 testified that two of the complainants, Tilley and SmithD 

respectively, tried to get them to leave the mine because Tilley and Smith 

were upset over the changes in their jobs. 

Each of the complainants testified that he had refused to work on April 10 

because of unsafe and unhealthful conditions in the mineo If the evidence discussed above and the findings of fact set forth above had failed to show that 

unsafe and unhealthful conditions existed in the mine on April 10 respondent c 

claim that the men were persuaded to leave by Tilley and Smith who were dissatisfied with their job assignments would be more persuasive than it is. 

Clyde Smith testified that the change in his job from operator of the coal 

drill to that of setting timbers did not upset him because the change provided 

him with an opportunity of making the mine safe by giving him time to set the 

timbers which were required by the roof-control plan. Smith claimed, however» 

that only six timbers were available on the section at the time he started 

to set timbers on April 10. After he and two other miners had set the six 

timbers available, he asked the section foreman to obtain a supply of additional timbers. The mine foreman testified that David May had been dispatched 

to obtain timbers. The evidence, therefore, supports Smith's claim that he 

could not set timbers because none were available after he had installed the 

six which were present on the section when he reported for work. 

The fact that all nine complainants left at the same time indicates that 

they probably had a discussion among themselves about leaving before they 

actually left the section. There is a lack of evidence, however, to show 

that the primary reason the miners left was that four of them had had changes 

in their job assignments. Assuming that Smith was upset over the change in 

his job assignment, the evidence shows that he had additional reasons for 

refusing to work and for trying to influence some of the other miners to 

refuse to work. He testified that when he asked the section foreman for 

additional timbers, the section foreman told him that he could not stop 

306 
production while timbers were set. Smith also testified that the section 

foreman became very agitated when Smith suggested that a Federal inspector 

be called to examine conditions on the section. Smith also said that the 

mine foreman refused to listen to his complaints after the mine foreman had 

made his speech exhorting the men to increase production. The mine foreman 

himself corroborated that David May had been sent to obtain a supply of 

timbers. Consequently, Smith had quite a few reasons to be upset about conditions in the mine on April 10 and it is quite likely that he included his 

job reassignment as one of the reasons for suggesting that all of the men 

ought to refuse to work in protest of the conditions which existed. Both of 

respondent's witnesses who claimed that Tilley and Smith had tried to get 

them to leave the section also testified that conditions on the section were 

unsafe on April 10 when the nine complainants ref used to work and left the 

section. 

In view of the circumstances described above, I cannot conclude that the 

Complaint in this proceeding should be dismissed just because one or two of 

the complainants may have been active in persuading the other seven 

ants to refuse to work in protest of the unsafe conditions under which 

were asked to perform, especially in light of the mine foreman~s request 

that they increase production at the same time that he declined to take 

action to provide proper roof support and ventilation. 

The Recall of Complainants on May 1 2 1980 

One of the few facts in this proceeding which was undisputed is the fact 

that all nine of the complainants were sent certified letters asking that 

report for work on May 1, 1980. All of them did report for work in response 

to the certified letters. None of them, however, were reinstated to the positions on a production section which they held prior to their discharge on 

April 10. Both Stanley, the co-owner who testified at the hearing, and the 

company's bookkeeper stated that the nine complainants were recalled for the 

sole purpose of doing manual labor, such as laying railroad track, required 

for opening a new section which would utilize a continuous-mining machine in 

lieu of the conventional equipment which was being used in the section of the 

mine where complainants were working on April 10. Stanley stated that he 

knew when he recalled the nine complainants that they would be used in connection with opening the new section and that they would be laid off when 

that limited work had been completed. As it turned out, the nine complainants did various types of manual labor at the mine and were then laid off on 

May 9 after working less than 2 weeks. 

The evidence shows that on May 9, when complainants were laid off, 

14 other miners were laid off. Additional miners were laid off on other dates: 

11 on May 30, 10 on June 3, and 3 on June 6. The reason for the general reduction in personnel was that the mine was converted to use of continuous-mining 

machines which require fewer miners than operation of a mine using conventional 

equipment. Respondent contends that even if violations of section lOS(c)(l) 

are found to have occurred so as to warrant the reinstatement of some of the 

miners, and payment of lost wages to all of them, that the only period for 

307 
which they should be permitted to earn back wages would extend from the time 

of their discharge on April 10, 1980, to the time of their reinstatement on 

May 1, 1980. The reason for respondent's position as to back pay is, of 

course, based on its argument that the miners were laid off on May 9 as a 

part of a general reduction in working force and not because of anything 

which happened on April 10, 1980. 

I find that respondent's position as to back pay must be rejected for 

several reasons. There was not a true reinstatement of complainants to the 

positions which they held at the time of their discharge. The co-owner who 

testified at the hearing stated unequivocally that when complainants were 

recalled on Hay 1, respondent's management knew that complainants would be 

employed only for a very brief period of time for the purpose of laying track 

to open the new sectiono Respondentvs witnesses did not explain how the 

reduction in force was madeo All of complainants were discharged on May 9~ 

the day when the first group of miners were laid offo There is nothing in 

the record to show that all nine complainants would have been laid off on 

May 9 if they had not refused to work on April 10. The fact that complainants were recalled for a short-term job and then laid off 9 days later 

as a general reduction in force supports a conclusion that the rehiring and 

second discharge were part of a plan deliberately designed to prevent the 

miners from recovering back pay in the event their Complaint in this proceeding should be grantedo 

The Hiners 1 Right To Withdraw Because of Unsafe Conditions 

The findings of fact set forth at the beginning of this decision show 

that complainants had been exposed to unsafe conditions on April 10, 1980. 

The Commission held in Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980), 

that a miner has the right under the Act to refuse to work in hazardous conditions. The evidence shows that complainants had objected to the lack of roof 

support and ventilation on April 10, 1980, prior to the time that they refused 

to work. Therefore, respondent violated section 105(c)(l) of the Act with 

respect to each of the nine complainants when respondent refused to allow 

complainants to return to work on April 11 because of their refusal to work 

in unsafe and unhealthful conditions on the afternoon and evening of April 10, 

1980. The order accompanying this decision will hereinafter require respondent to reinstate to their former or equivalent positions all of the complainants who wish to be reinstated. Respondent will also be ordered to pay all 

complainants the wages which they would have earned if they had not been 

unlawfully discharged on April 10, 1980. 

It was agreed at the hearing that evidence would not be taken with respect 

to the jobs which some of the complainants have held between the time they 

were discharged on April 10, 1980, and the time that they are paid back wages 

under the order accompanying this decision. At the conclusion of the hearing 

on the merits, I stated that I would provide a period of time for complainants 

to calculate their back pay and that a supplemental hearing would thereafter 

be scheduled at which respondent would be g~ven the opportunity to challenge 

any of the facts underlying the calculations of back wages. No final decision 

308 
will be issued in this proceeding until the facts necessary for awarding back 

pay can be obtained. 

Civil Penalty 

Counsel for complainants requested at the conclusion of the hearing that 

I assess civil penalties for the violations of section lOS(c)(l) which I have 

found to exist. My order issued January 13, 1981, providing for hearing in 

this proceeding, consolidated the civil penalty issues with the issues raised 

by the filing of the Complaint, but that order made it clear that I would defer 

the assessment of civil penalties until such time as the Secretary of Labor 

files a Proposal for Assessment of Civil Penalty pursuant to the provisions 

of sections lOS(a) and llO(a) of the Act and sections 2700.25~ 2700026 0 and 

2700.27 of the Commission's Rules of Procedure (29 C.F.R. §§ 2700.25, 2700.26 

and 2700.27). 

WHEREFORE, it is ordered: 

(A) The Complaint of Discharge, Discrimination, or Interference filed 

in this proceeding on October 24, 1980, is granted for the reasons hereinbefore given. 

(B) Respondent shall reinstate Jerry Lee Smith, Monroe Mullins, Ho K. 

Tilley, and James R. Clevenger to their former or equivalent positions at 

respondent's Noa 1 Mine. 

(C) Respondent shall pay all nine complainants the wages they would have 

earned if they had not been unlawfully discharged on April 10, 1980. Back 

pay may be reduced by the amount which any of the complainants earned from 

working at other jobs between the date of their discharge on April 10 and the 

time of their reinstatement with respect to the four miners named in paragraph 

(B) above or to the time of repayment of back pay with respect to the remaining five complainants who do not wish to be reinstated. 

(D) Respondent shall provide MSHA's investigators and complainants 

with such information as they may need from respondent's payroll records in 

computing the back pay. 

(E) Complainants' counsel is responsible for assuring that the basic 

facts required for computing back pay and offets thereto are gathered, compiled, and computed. The time for accomplishing the gathering of said 

information and making the necessary calculations will expire on May 22) 

1981, unless an extension of time is required and requested. 

(F) The employment records of all nine complainants shall be completely 

expunged of all references to their unlawful discharge and matters relating 

thereto. 

(G) Counsel for complainants and counsel for respondent shall confer 

and agree upon a mutually convenient time for recovening of the hearing for 

309 
• 

the purpose of pennitting respondent's counsel to develop any facts which may 

be required pertaining to places where complainants have wo~ked between the 

time they were discharged on April 10, 1980, and the time the hearing is 

reconvened. The date agreed upon shall be reported to me and an order providing for reconvening of the hearing will be subsequently issued subject to 

openings in my calender of hearings and the availability of a suitable hearing room. If the date requested by counsel conflicts with my calender or 

the availability of a hearing room, a change in the date will not be made 

without-giving counsel for both parties an opportunity to arrive at an 

alternative date. 

~ Cf, ~¥/6-;Y- Richard C. Steffey' :-

Administrative Law Judge 

(Phone: 703-756-6225) 

Distribution: 

Darryl A. Stewart, Attorney, Office of the Solicitor~ U.S. Department of 

Labor, Room 280, U.So Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Charles E. Lowe, Esq., Attorney for Mullin Creek Coal Company, Inc.~ 

Lowe, Lowe & Stamper, P.O. Box 69. Pikeville 0 KY 41501 (Certified Mail) 

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'° ' PS Form 3811. Aug, 1978 

310 
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), 

May 18, 1981 

on behalf of CLYDE JR. SMITH, 

JAMES R. CLEVENGER, MONROE 

MULLINS, DAVID MAY, JERRY LEE 

SMITH, JOHN R. TELFER, JR., 

JAMES THACKER, H.K. TILLEY, JR., 

AND THOMAS V. WALKER, 

Complainants 

v. 

1'IULLIN CREEK COAL COMP ANY·, INC. , 

Respondent 

Complaint of Discharge, 

Discrimination, or Interference 

Docket Ho. KENT 81-17-D 

No. 1 Mine 

ORDER GRANTING REQUEST FOR EXTENSION OF TIME 

Counsel for complainants filed on May 15, 1981, in the above-entitle('. 

proceeding a letter requesting that the time for compiling data 

for complainants in this proceeding be extended from the date of May 22, 

1981, to July 6, 1981. As grounds for granting the motion, complainants' 

counsel states that the special investigator who was working on the case 

has been attending a training program in Beckley, West , for several 

weeks and has been unable to devote any time toward the compilation of the 

back wages involved. 

In the order accompanying the bench decision mailed to the parties on 

March 17, 1981, I provided in paragraph (E) that the time for compiling the 

data required for computing the back pay due complainants under my bench 

. decision would expire on May 22, 1981, unless an extension of time was found 

to be required. Under the Commission's rules, 29 C.F.R. §§ 2700.8(b) and 

2700.lO(b), respondent has a period of 15 days within which to file an answer 

to complainants' motion for an extension of time. Inasmuch as the date of 

May 22 will come before the 15-day period for filing a reply has expired, I 

shall act upon the motion at this time. If respondent's counsel files an 

answer in opposition to the granting of the extension of time, I shall modify 

this order, if necessary, to consider any objections which may be raised by 

respondent in opposition to the grant of the request for extension of time. 

It was obvious at the hearing that complainants have not kept precise 

records as to the dates of their employment or the amounts paid. I would 

assume that the investigator will have to check with the employers of those 

complainants who have held other jobs in order to determine the precise 

amounts that they received from such employers. As to those complainants 

who have not worked any place since their discharge by respondent, it does 

not appear that much work would be necessary to determine the amount of 

their back pay. The extension requested is approximately 6 weeks and it may 

well take 6 weeks to interview all the complainant~ and obtain the required 

311 
facts. Therefore, I shall grant the extension at this time, pending receipt 

from respondent's counsel of any facts which may warrant a reduction in the 

time required for obtaining the necessary back-pay data. 

The official file now contains the filings by respondent's counsel 

seeking to obtain review of my bench decision. The provision in the order 

accompanying my bench decision for reconvening of the hearing was granted in 

response to the request for a further hearing made by respondent's counsel. 

I should make it clear at this time that if respondent's counsel is able to 

agree with complainants' counsel as to amount of back pay due to each 

of the complainants, I am willing to accept such a stipulation. A stipulation would avoid the necessity of holding a further hearing. If the amount 

of back pay could be provided to me without the need for holding a further 

hearing. I would be willing to insert the back-pay amounts for each complainant in my bench decision and issue it in final fonn within a very short time 

after I have received the necessary information from the parties. 

If the procedure set forth in the preceding paragraph could be followed 0 

respondent could file its petition for discretionary review immediately upon 

receipt of my final decision. I am suggesting the above-described procedure 

for the partiesv consideration. If a further hearing is desired by the parties~ 

I shall be glad to hold it at a date which is agreeable with the parties so 

long as such date does not conflict with my own calendar of hearings or the 

availability of a hearing room. 

WHEREFORE, for the reasons given above~ it is ordered: 

The request for an extension of time to and including July 6, 1981, 

within which to compile the back-pay data required by paragraph (E) of the 

order accompanying my bench decision is granted and the time is extended 

to July 6, 1931. 

Distribution: 

~ C. ~-:f;;-//f:. ... 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

Darryl A. Stewart, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Charles E. Lowe, Esq., Attorney for Mullin Creek Coal Company, Inc., 

Lowe, Lowe & Stamper, P.O. Box 69, Pikeville, KY 41501 (Certified 

Mail) 

312 
FEDERAL MU~:./ SAFETY AND HEAL TH REVIEW' ':;;OM MISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE s·AFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

JAN 12 1982 

on behalf of CLYDE SMITH, JR., 

JAMES R. CLEVENGER, MONROE 

MULLINS, DAVID MAY, JERRY LEE 

SMITH, JOHN R. TELFER, JR., 

JAMES THACKER, H. K. TILLEY, JR. 

AND THOMAS V, WALKER, 

Complainants 

v. 

MULLIN CREEK COAL COMPANY, INC., 

Respondent 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. KENT 81-17-D 

No. 1 Mine 

ORDER PROVIDING FOR COMPUTATION OF BACK PAY 

Preliminary Considerations 

1. The Effect To Be Given to Delay in Providing Data 

A hearing was held in the above-entitled proceeding on March 6 and 

7, 1981. On March 17, 1981, I mailed to the parties a bench decision 

finding that respondent had violated section 105(c)(l) of the Federal 

Mine Safety and Health Act of 1977 and ordering respondent to reinstate 

four of the nine complainants and reimburse the remaining five complainants for back pay which they would have earned if they had not been unlawfully discharged. Paragraph (E) of the bench decision provided that 

counsel for complainants was responsible for gathering the required 

information and computing the amount of back pay due to each of the nine 

complainants. Paragraph (E) also provided that the time for computing 

back pay would expire on May 22, 1981, unless an extension of time was 

requested. 

Counsel for complainants filed on May 15, 1981, a request for an 

extension of time to and including July 6, 1981, within which to compile 

the necessary information and compute the amount of back pay due t~ complainants. The sole reason given for the requested extension of time was 

as follows: 

We request an extension because the Mine Safety and Health 

Administration Special Investigator working with us on the case 

has been unable to devote any time toward the compilation of 

the back wages involved, primarily due to a communication breakdown and due to his attendance for several weeks in a training 

program held in Beckley, West Virginia. 

313 
I issued on May 18, 1981, an order granting the request for an 

extension of time. I was well aware when I granted the extension of time 

that respondent's exposure to payment of back pay and interest would be 

increased by the grant of the extension. Therefore, in my order of May 18, 

1981, I made the following observation: 

* * * Under the Commission's rules, 29 C.F.R. §§ 2700.S(b) and 

2700.lO(b), respondent has a period of 15 days within which to 

file an answer to complainants' motion for an extension of time. 

Inasmuch as the date of May 22 will come before the 15-day period 

for filing a reply has expired, I shall act upon the motion at 

this time. If respondent's counsel files an answer in opposition 

to the granting of the extension of time, I shall modify this order, 

if necessary, to consider any objections which may be raised by 

respondent in opposition to the grant of the request for extension 

of time. 

Respondentvs counsel never did file any objection to the grant of the extension of time. 

Paragraph (G) of my bench decision provided, among other things, as 

follows: 

(G) Counsel for complainants and counsel for respondent 

shall confer and agree upon a mutually convenient time for reconvening of the hearing for the purpose of permitting respondent's 

counsel to develop any facts which may be required pertaining to 

places where complainants have worked between the time they were 

discharged on April 10, 1980, and the time the hearing is 

reconvened. * * * 

The order extending the time for compiling and computing back pay also 

stated that if the parties could agree on the facts pertaining to computation of back pay, no supplemental hearing would be required, Counsel 

for complainants filed a letter on July 21, 1981, stating, in its entirety, 

as follows: 

In accordance with your request, be advised that the above 

respondent's attorney and myself have agreed that the latter 

part of October, 1981 or anytime in November, 1981 would be 

an agreeable time to conduct the further hearing in the above 

proceeding. 

The above suggested hearing period was agreed upon in light of 

respondent's request to obtain copies of complainants' 1980 

Federal Income Tax Return and W-2 Forms for 1980 which are not 

presently in respondent's possession. 

Although I presently possess some of the documents respondent 

has requested, the reamining copies must be obtained from the 

IRS Center in Memphis, Tennessee. Be advised, however, that I 

314 
have already instituted the procedure whereby the complainants 

can obtain the requested documents from the Internal Revenue 

Service; however, the IRS has informed me that the process may 

take up to 10 weeks. 

Accordingly, if the above suggested hearing period is unacceptable, please so inform us so that the parties can undertake to 

make other arrangements. 

In a notice of reconvening of hearing issued August 10, 1981, I stated 

that I had already scheduled hearings to be held in October and during the 

first week of November. Therefore, I scheduled the hearing in this proceeding to be reconvened on November 17, 1981. 

Up to the time the hearing was reconvened on November 17, 1981, 

respondent's counsel had voiced no objections to the length of time which 

had passed between the issuance of my bench decision on March 17, 1981, 

and the reconvening of the hearing on November 17, 1981. Shortly after 

the hearing had begun on November 17, however, counsel for respondent 

stated that he had complied with the orders in my bench decision by furnishing complainants' counsel with the rates of pay which the complainants 

had been earning at the time of their discharge, but that complainants' 

counsel had still not provided respondent with the dates and places where 

the complainants had worked and that he did not think respondent should 

have to pay for the delay which had resulted from the failure of complainants v counsel to provide the necessary information (Tr. 967-968), 

Counsel for complainants stated that he had tried to obtain the 

necessary information, but had been unable to do so because the complainants had failed to respond to the letters he had sent to them requesting 

information. Counsel for complainants concluded his explanation for the 

length of time which had been spent in trying to get information as 

follows (Tr. 971-972): 

* * * I've indicated that this portion of the proceeding is an 

individual effort; it's not a group effort. They can't rely on 

information provided by one miner to support their claim for back 

wages; they have to bring it forward themselves. I've even sent 

them forms that requested for the IRS where all they had to do was 

fill out the information and mail it in and IRS would send it back 

to them. I haven't gotten that from several of the men. Now, 

Your Honor, I'd like to say for the record I can't come down here 

and sit with them every day. I can't travel with them to where 

they're going. I have to put some responsibility on these men and 

I just haven't got it for each one of them. 

I ruled at the hearing that each of the nine complainants would testify and 

that his back pay would be allowed, based on whether he had cooperated in 

providing information in a prompt manner (Tr. 973-974). 

315 
Now that I have reviewed the transcript and have reconsidered the 

matter of delay, it is obvious that complainants' counsel could have provided respondent's counsel with complete information from the miners who 

responded promptly to his requests for information. If that had been done, 

it might have been unnecessary to have had all of the miners reappear to 

give testimony about facts which may have been in the possession of complainants' counsel for several months prior to November 17 when the hearing 

was reconvened. 

It is clear that the failure of some miners to provide information 

caused an inordinate delay between the rendering of the decision on the 

merits and the calculation of back pay. A large part of the delay resulted simply from the fact that nine complainants are involved. They 

live in various parts of the country. Complainant Walker, for example, 

had to drive 400 miles one way just to at the hearing (Tr, 974)" 

They have a wide range of ability and understanding of what was required 

of them. 

Respondent 1 s counsel requested that my rulings with respect to back pay 

take into consideration the complainants~ inordinate in the 

information required for computation of back pay. I would like to grant 

respondent's request and place a cut-off date beyond which respondent would 

not be liable for payment of back pay, but there are various equities to 

consider. The most unjustified delay occurred innnediately after the 

issuance of my bench decision on March 17, 1981. As indicated above" my 

bench decision provided that all data be compiled and that back-pay computations be supplied to me by May 22, 1981. Yet· nothing whatsoever was done 

during that 2-month period. Counsel for complainant explained that the 

2-month delay had occurred because of a "communications breakdown" and the 

attendance by MSHA's special investigator at a training program conducted 

in Beckley, West Virginia. Respondent's counsel can hardly be held responsible for that 2-month delay, but neither can the nine complainants be held 

responsible because they were not asked to supply any information at all 

during that 2-month period. I would like to hold that respondent is not 

liable for payment of back pay during that period, but, if r'were to do so~ 

I would be penalizing the complainants for possible shortcomings of their 

counsel and MSHA's special investigator during that period. 

Respondent's counsel did not specifically object to the initial 2-

month delay. His objection as to the delay was directed to the period of 

time after June 10, 1981, when he supplied to complainants' counsel the 

rates of pay which complainants were earning prior to their discharge. 

Counsel for respondent also objected to the failure of complainants' counsel 

to provide him with income tax returns and other data when complainants' 

counsel sent respondent's counsel a letter dated October 28, 1981 (Tr. 968; 

972). Complainants' counsel explained that he had obtained income tax 

returns and other data from some of the complainants and that he thought 

they had been sent to respondent's counsel, but that his secretary inadvertently failed to enclose them with the letter of October 28 (Tr. 969). 

316 
Respondent's counsel, of course, could have called complainants' counsel 

prior to the hearing to advise him that the enclosures referred to in the 

letter of October 28 had not been included with the letter. Additionally, 

neither counsel apparently ever undertook to discuss each complainant 1 s 

back pay on an individual basis so as to make an attempt to reach a specific 

figure with respect to each complainant. 

The legislative history pertaining to section 105(c) of the Act makes 

it clear that Congress wanted the miners to be reimbursed for all costs 

incurred by the miners as a result of any act of discrimination. Page 37 

of Senate Report No. 95-181, 95th Cong., 1st Sess., May 16, 1977, states as 

follows: 

It is the Committee's intention that the propose, 

and that the Commission , all relief that is necessary to 

make the complaining party whole and to remove the deleterious 

effects of the discriminatory conduct including, but not limited 

to reinstatement with full rights, with 

interest, and recompense for any special damages sustained as a 

result of the discrimination. The specified relief is only illustrative. Thus, for , where appropriate, the Commission 

should issue broad cease and desist orders and include requirements 

for the posting of notices by the operator. 

In view of the legislative history quoted above, I believe that the ruling 

I made at the hearing is the one which can be made with respect to 

reducing respondent's exposure to payment of back pay, that is, that the 

complainants are entitled to receive back pay for any after their 

discharge when they did not have jobs paying at least as much as they would 

have received had they not been discharged, the only exceptions being in 

those instances when complainants caused undue delay by failing to respond 

to requests for information made their counsel and MSHA's special 

investigator (Tr. 972). 

2. The Effect To Be Given to. Complainantsv Decline of Reinstatement 

Counsel for respondent also pointed out at the hearing (Tr. 1167) 

held on November 17, 1981, that five complainants had testified during the 

initial hearing held on March 6, 1981, that they did not want to be reinstated at respondent 1 s mine. Respondent's counsel argued that respondent 

should not have to make payments of back wages to any complainant who 

declined reinstatement on March 6, 1981. As to that argument, it is clear 

that my bench decision contemplated that the miners declining reinstatement would be entitled to back pay up to the time that checks for back pay 

were actually written. Paragraph (C) of my bench decision ordered respondent to provide back-pay for the miners who declined reinstatement for the 

period running from their first discharge on April 10, 1980, to "* * * the 

time of repayment of back pay". The bench decision was issued on March 17, 

1981. If I had had the necessary data regarding back pay, I could have 

issued a final decision on March 17, 1981,.and that decision would have 

required that respondent provide back pay for all complainants declining 

317 
reinstatement through the date on which the checks for back pay were 

written. Since I still did not have such information on the date the hearing was reconvened on November 17, 1981, the payment of back pay for the 

miners who declined reinstatement would still be running if respondent had 

not, on or about September 14, 1981, offered to reinstate all nine complainants. The running of back-pay obligations ceased as of September 14, 

1981, because all those complainants who declined the actual offer of back 

pay have no right to be paid for any period beyond the date when they 

either accepted the offer and commenced working again for respondent, or 

declined the opportunity to be placed on respondent's payroll again. 

Interest on the payment of back pay will, of course, continue to run until 

the day the payments are actually made. 

3. Stipulation for Period Between First Discharge and Second Discharge 

Finding Nos. 11 through 14 in my bench decision explain that all nine 

complainants in this proceeding were first discharged on April 10, 1980, 

when they refused to work because of unsafe conditions. All nine complainants were given an opportunity to return to work at respondentvs mine on or 

about May 1, 1980. All nine of the complainants returned to respondent 1 s 

mine and worked until they were discharged again on May 10, 1980. Consequently, complainants are entitled to back pay for the 14-day period from 

April 10, 1980, to May 1, 1980. One complainant did not return until after 

May 1 and is entitled to pay for about 16 days. Counsel for the parties 

submitted as Exhibit 4 in this proceeding a stipulation providing for the 

exact amount of back pay each complainant is entitled to receive for the 

period from April 10 to May 1, 1980. That stipulation will be used to 

dispose of all questions pertaining to the calculation of back pay between 

complainants' first discharge and their rehiring on or about May 1, 1980, 

with a possible exception in the case of Complainant James Thacker, as 

hereinafter explained. 

4. Exclusion of Back Pay for Period from April 9, 1981, to June 8, 1981 

Although respondent's No. 1 Mine is not considered to be a "unibn" 

mine, respondent's mine was unable to produce coal from April 9, 1981, to 

June 8, 1981, because of the general strike called by the United Mine 

Workers of America during that time. Since complainants would not have 

been able to work during the strike even if they had not been discharged, 

they are not entitled to back pay or interest on back pay for the period 

extending from April 9, 1981, to June 8, 1981 (Tr. 1054; 1165). 

Method for Computing Back Pay for Each Complainant 

1. Thomas Walker 

Thomas Walker was discharged by respondent on May 10, 1980. At the 

time of his discharge, he was earning $73.20 per day. He began looking for 

another job on June 6, 1980, when he applied for work at Greenwood Coal 

Company and Tibbal Floor Company. He next sought work at Sterns Coal Company 

318 
on June 17, 1980 (Tr. 976). He asked for work at West Coal Company on 

July 10, 1980. He updated his application at Greenwood Coal Company on 

July 23, 1980, and returned to Sterns Coal Company and Tibbal Floor Company on August 6, 1980. He made two additional trips to.Greenwood Coal 

Company on August 21, 1980, and August 27, 1980 (Tr. 977). He went on 

September 9, 1980, to the coal washer of Greenwood Coal Company which 

hires miners for Greenwood. On September 9, 1980, he also tried to get 

work again at West Coal Company and on September 19, 1980, he went back to 

Greenwood Coal Company. He returned to Greenwood's coal washer on 

October 1, 1980. He applied for work at a tent factory in Sterns, Kentucky, 

on October 16, 1980, and on October 17, 1980, he returned to Greenwood Coal 

Company to ask for work. He applied for a maintenance job at McNairy 

County Manufacturing Company on November 14, 1980. He returned to the tent 

factory and Tibbal Floor Company on December 10, 1980, to ask for work 

(Tr. 979). When he returned to Greenwood Coal Company on December 19, 1980, 

he was promised a job. He applied for work at A & S Coal Company on 

January 3, 1981. He updated his application at A & S Coal Company on 

January 16, 1981, and the foreman at A & S Coal Company told him to report 

for work on February 2, 1981 (Tr. 979). The evidence shows that Walker 

made a conscientious effort to secure alternative employment after his 

discharge by respondent on May 10, 1980. 

Walker was paid $72.00 per shift when he began working for A & S Coal 

Company. Walker was still working for A & S when he testified in this proceeding on November 17, 1981, and he was still being paid $72.00 per shift 

(Tr. 980). As compared with Walker's rate of pay at A & S, his rate of pay 

at respondent's mine was $73.20. If Walker had continued working for respondent, his rate of pay would have increased by $5.60 to $78.80 on 

September 1, 1980 (Tr. 1165). Since Walker is entitled to be paid at the 

rate he would have earned if he had not been discharged on May 10, 1980, 

Walker is entitled to be paid at the rate of $73.20 from May 10, 1980, to 

September 1, 1980, and at the rate of $78.80 from September 1, 1980, to 

February 2, 1981, when he began to work for A & S (Tr. 979). Additionally, 

Walker is entitled to be paid the difference of $6.80 between his A & S 

wages and the wages he would have been paid by respondent up to the time 

he was offered reinstatement on September 14, 1981, exclusive of payment of 

differential during the strike, that is, from April 9, 1981, to June 8, 

1981. 

2. John Robert Telfer 

John. Robert Telfer was discharged by respondent on May 10, 1980. 

Immediately after his discharge, he started trying to find work. Between 

May 10, 1980, and October 31, 1980, he made unsuccessful trips about three 

times each month to ask for work at Pikco Coal Company, Maxann Coal Company, 

V & M Coal Company, and Five S Coal Company. Telfer's father-in-law was a 

foreman at Wolf Creek Collieries and on October 31, 1980, his father-in-law 

obtained a job for him at the No. 4 Mine of Wolf Creek Collieries (Tr. 996-

997). His rate of pay at Wolf Creek's mine was $12.25 per hour, or $98.00 

per shift, as compared with $79.20 per sh±ft which respondent was paying 

him at the time of his discharge (Tr. 997). 

319 
At the time of the hearing held on March 6, 1981, in this proceeding, 

Telfer testified that he did not want to be reinstated at respondent's 

mine because on March 6 he was working at Wolf Creek for wages of $98 

per day as compared with ·respondent's payment of $79. 20 per day (Tr. 998). 

Although respondent's mine was much closer to Telfer's home than Wolf 

Creek's No. 4 Mine was, Telfer rode to and from work with his father-inlaw without charge. As a foreman for Wolf Creek, his father-in-law was 

ceimbursed by Wolf Creek for the gas used in traveling to and from work 

(Tr. 1007). 

Wolf Creek's No. 4 Mine was divided into an "upper" and a "lower" 

mine. Management decided to close the upper mine. The closing of the 

upper mine made it necessary for Wolf Creek to lay off miners at the lower 

mine so as to provide jobs for employees with considerable seniority who 

lost their jobs when the upper mine was closed. Telfer had only been 

working for Wolf Creek for a few months when the decision to close the 

upper mine was made. Telfer's lack of seniority made it necessary for 

Wolf Creek to lay him off on July 11, 1981 (Tr. 1008; 1019-1020). Telfer 

therefore, did not have any job on September 28, 1981~ when respondent 

offered to reinstate him at its No. 1 Mine. Consequently, Telfer accepted 

respondent's offer of reinstatement and Telfer is now working for respondent even though he had stated at the hearing held on March 6 that he 

did not want to be reinstated at respondent's mine. 

I stated at the hearing that the unique circumstances described 

above might qualify Telfer to back pay for the period between the time 

he lost his position with Wolf Creek on July 11 and the time he was reinstated by respondent on September 29. Respondent's counsel argued that 

respondent's back-pay obligation ought to be terminated on March 6, 1981, 

for any miner who testified on that day that he did not want to be reinstated. Respondent argued that that was especially the appropriate procedure in this proceeding because it was not respondent's fault that it 

has taken the complainants frpm March 17, 1981, when my bench decision 

was mailed to the parties, to November 17, 1981, for the hearing to be 

rescheduled at which complainants introduced the facts required for computation of back pay. 

Counsel for complainants argued that Telfer should be paid for the 

time between his loss of the job at Wolf Creek and the time he was reinstated by respondent because Telfer was among those miners who had from 

the beginning supplied him with information for computation of back pay. 

Therefore, Telfer was not.responsible for the delay in providing information pertaining to calculation of back pay (Tr. 1010). 

As I indicated in the first part of this decision, complainants are 

entitled to back pay up to the time they were offered reinstatement which, 

in Telfer's case, was September 29, 1981 (Tr. 1007). Consequently, 

Telfer is entitled· to back pay from May 10, 1980, to October 31, 1980, 

when he began working for Wolf Creek at a rate of $98.00 per day. Telfer 

320 
is also entitled to back pay from July 11, 1981, when he was laid off by 

Wolf Creek to September 29, 1981, when he was reinstated by r~spondent. 

The rate of back pay is $79.20 per day from May 10, 1980, to September 1, 

1980, and $84.80 ($79.20 + pay increase of $5.60) per day for all times 

after September 1, 1980. 

3. Clyde Smith, Jr. 

Clyde Smith, Jr., was discharged by respondent on May 10, 1980 (Tr. 

1023). Between May 10, 1980, and November 3, 1980, he applied for work at 

Tab Coal Company, Triple J Coal Company, Loftis Coal Company, and Doug 

Chapman. He went to those places several times and all of them advised 

him that they were not hiring any miners at that time. Finally, Smith 

obtained a job with Robert Coal Company on November 3, 1980, and he has 

been employed by Robert Coal Company since that time, although at the time 

of the hearing, he was not working because of a back injury (Tr. 1025; 

1030-1032). 

Counsel for complainants stated that Smith had not only been prompt 

about providing him with information about Smith s own efforts to find 

work, but had also been helpful in assisting him in obtaining information 

from the other complainants (Tr. 1023). Consequently, no reductions in 

back pay would be appropriate in Smith's case because he has in no way 

contributed to the in providing the facts needed for computing back 

pay. 

Smith was paid at the rate of $73.20 per day when he worked for 

respondent. Robert Coal Company paid Smith from $76.20 to $79.20 per day 

(Tr. 1024). Therefore, Smith is not entitled to receive any differential 

between the rate he was paid by respondent and the rate he was paid by 

Robert Coal Company, but he is entitled to back pay for the period from 

May 10, 1980, when he was discharged, to November 3, 1980, when he began 

working for Robert Coal Company. The rate for that period is $73.20 per 

day from May 10, 1980, to September 1, 1980, and $78.80 ($73.20 + pay 

increase of $5.60) per day from September 1, 1980, to November 3, 1980. 

4. Monroe Mullins 

Monroe Mullins was discharged by respondent on May 10, 1980. At the 

time of his discharge, respondent was paying Mullins $79.20 per day 

(Tr. 1035). Mullins asked for work at Loftis Coal Company and Teresa 

Coal Company. He only looked for work at those two places because they 

are located in Kentucky and Mullins is from Virginia. Mullins wanted to 

find work in Virginia and moved back to Virginia about July 5, 1980. 

Mullins was given a job in Virginia with Dyna-Carb Coal Company on July 10, 

1980, at a pay rate of $75.00 per day (Tr. 1035-1036). Mullins worked for 

Dyna-Carb up to about November 25, 1980 (Tr. 1037). Mullins was able to 

obtain a job working for Tab Coal Company. Mullins continued to work for 

Tab Coal Company up to March 6, 1981, when the first hearing in this case 

was held. He testified on March 6 that he would like to be reinstated to 

321 
his job at respondent's mine because on March 6 he did not have a job that 

paid as much as respondent was paying him when he was discharged (Tr. 1051). 

Although Mullins could have continued to work for Tab Coal up to the 

beginning of the UMWA strike, Mullins elected to terminate his job with Tab 

Coal on Monday, March 9, 1980, because he knew that the UMWA strike was set 

to begin toward the end of March and Mullins had already decided that h~ 

wanted to move back to Virginia. Mullins next found a job on June 20, 1981, 

when he began to work for Dotson Coal Company (Tr. 1043). He transferred to 

Smiley Coal Company when Smiley offered him $5 more per day than Dotson was 

paying him. Mullins worked for Smiley until that company went out of business. 

Thereafter Mullins obtained a job with T.J.P.E. Coal Company at a rate of 

$80.00 per day and Mullins was still working for T.J.P.E. Coal Company when 

respondent offered to reinstate him on or about September 14, 1981. Mullins 

declined respondent's offer of a job because he liked working for T.J.P.E. 

more than he liked working for respondent (Tr. 1045). Mullins testified 

that he lost no working time between his jobs at Dotson, Smiley, and T.J.P.E. 

(Tr. 1043). 

Mullins did not have a job for a short period of time between the time 

that he left Dyna-Garb and his obtaining work with Tab Coal Company on 

January 1, 1981. At the hearing held on November 17, 1981, Mullins did not 

know when he stopped working for Dyna-Carb. I asked Mullins to obtain that 

information and submit it to me after the hearing; but respondentvs counsel 

objected to my giving Mullins any additional time to obtain that information 

since he had already been given a period of 8 months between the two hearings 

held in this proceeding within which to obtain all dates and places where he 

had worked (Tr. 1057). Mullins' own counsel testified that Mullins had been 

sent a letter a long time prior to the hearing requesting him to obtain his 

dates and places of employment (Tr. 1046). In the first part of this order, 

I ruled that respondent would not be required to reimburse complainants for 

back pay when their testimony shows that they had contributed to undue delay 

by failing to provide information in a timely manner. In keeping with that 

ruling, respondent will not be required to provide back pay for the time 

lost by Mullins between the termination of his job with Dyna-Garb and the 

commencement of his job with Tab Coal Company. Also, since Mullins voluntarily stopped working for Tab Coal Company on March 9, 1981, before the 

strike began, he will not be given back pay for the period from March 9, 

1981, to April 9, 1981, when respondent's mine was closed by the strike. 

Inasmuch as Mullins' voluntary act of quitting his job at Tab Coal Company 

also prevented him from having a job after the strike ended on June 8, 1981, 

respondent will not be required to provide Mullins with back pay for the 

period from June 8, 1981, when respondent's mine was reopened after the 

strike, to June 20, 1981, when Mullins began to work for Dotson Coal Company (Tr. 1050). Of course, no complainant will receive back pay for the 

period from April 9, 1981, to June 8, 1981, because respondent's mine was 

closed for that period on account of the strike (Tr. 1054). 

Mullins was being paid $79.20 per day by respondent at the time of his 

discharge on May 10, 1980. Mullins was pafd only $75.00 per day when he 

worked for Dyna-Carb, but Mullins did not know when he stopped working for 

322 
Dyna-Carb. Mullins also claimed that he began working for Smiley Coal Company because it offered to pay him $5 more per day than the $75.00 per day 

which Dotson was paying him (Tr. 1040). Later Mullins testified that 

Smiley only paid him $75.00 per day (Tr. 1047). Additionally, Mullins 

first testified that his job with Dotson Coal Company lasted for 3 months 

after he began working for Dotson on June 20, 1981 (Tr. 1040). That would 

mean that Mullins worked for Dotson until September 20, 1981. Mullins also 

testified that he started working for Smiley after leaving Dotson and that 

Smiley went out of business about the last of July (Tr. 1040). It would 

have been impossible for Mullins to have worked for Dotson until tember 

and then to have worked for a company which went out of business toward the 

end of July. In view of Mullins' inability to give the dates when his 

employment with Dyna-Carb ended and his employment with Smiley began and 

ended, respondent will not be required to pay Mullins the differential of 

$4.20 between his rate of pay of $79.20 received from respondent and the 

pay of $75.00 per paid by both Dyna-Carb and Dotson because it is impossible to determine on the basis of Mullins' testimony when he ceased to be 

paid $75.00 and when he began to be paid $80.00 per day. The foregoing 

ruling is consistent with my prior holding that respondent should not be 

required to reimburse complainants when are unable to provide the 

names of the companies for which they worked, the dates they to work 

and stopped working, and their rates of pay even though they had been given 

a period of 8 months within which to prepare such information. 

Based on the rulings made above, respondent is required to 

Mullins with back pay at the rate of $79.20 per day for the 

his discharge on May 10, 1980, to July 10, 1980, when Mullins 

for Dyna-Carb Coal Company. 

5. James R. Clevenger 

provide 

from 

working 

James R. Clevenger was discharged by respondent on May 10, 1980, and 

at the time of his discharge, respondent was paying him $79.20 per day 

(Tr. 1061-1062). Clevenger started drawing unemployment compensation a 

short time after his discharge and continued to draw it for about 16 months 

(Tr. 1070; 1077). Clevenger testified that he tried to obtain work at all 

places which were within a reasonable distance of his home in Hatfield, 

Kentucky (Tr. 1073). He applied for work at Big Hill Coal Corporation on 

July 21, 1980, and on August 4, 1980, he asked Loftis Coal Company for work. 

He went to Barbar Kay Coal Company to seek a job on August 19, 1980, and 

August 27, 1980. He asked Robert Coal Company for a job on September 8, 

1980. He sought work with Preece Coal Company on October 17, 1980, and on 

July 24, 1980, he tried to get a job in the auto body shop of Hubbard Motor 

Company. He tried to find work at J & H Coal Company on November 10, 1980, 

and with Big Hill Coal Corporation on December 1, 1980. About April 1981, 

he tried to get a job driving a truck for Roy Francis (Tr • .1063-1065). 

Clevenger did not try to find work very of ten between April 1981 and 

September 14, 1981, when he accepted respondent's offer to reinstate him 

at respondent's mine (Tr. 1064). Clevenger said that he did not have the 

gas to drive around looking for work in 1981, but that other people were 

323 
looking for a job for him and would have advised him of any openings if 

they had occurred (Tr. 1064; 1072). Clevenger said that although he was 

an electrician, he was not a certified electrician and since most mines 

were only interested in hiring certified electricians, it was difficult 

for him to find work (Tr. 1070). 

Clevenger testified that he believed he had tried very hard to find 

work and that he would rather have had a job than to have been drawing 

unemployment compensation because he could earn the amount of an unemployment check by working only 2 days at a coal mine (Tr. 1075). There is 

no doubt but that Clevenger had an economic incentive to earn money 

because he is separated from his wife and is supposed to provide $250 

per month for the support of two children (Tr. 1078). During 1980, he 

only sent his children about $600 and he apparently accomplished that 

primarily by selling his car, The only transportation he had for getting 

to and from work is a 1947 model truck. He had to borrow $100 from his 

brothers in order to replace the engine in the truck before he could 

drive it to and from work (Tr. 1080-1081). 

I find that Clevenger made a reasonable effort to obtain work after 

his discharge on May 10, 1980. There is nothing in the record to show 

that he is responsible in any way for the delay which occurred between 

the first and second hearings in this proceeding. Therefore, respondent 

should pay Clevenger back pay from the date of his discharge on May 10, 

1980, to the date of his reinstatement on September 14, 1981, at the 

rate of $79.20 per day for the period from May 10, 1980, to September , 

1980, and at the rate of $84.80 ($79.20 +pay increase of $5.60) per day 

for the period from September 1, 1980, to September 14, 1981, exclusive 

of the period from April 9, 1981, to June 8, 1981, when respondent's 

mine was closed on account of the strike (Tr. 1054; 1165). 

6. Jerry Lee Smith 

Jerry Lee Smith was discharged by respondent on May 10, 1980, and 

respondent was paying Smith $79.20 per day at the time of his discharge 

(Tr. 1083-1084). Smith first obtained a job with Big Hill Coal Corporation 

on September 24, 1980, but he was laid off from that job only 3 days 

later. His salary for those three days was greater than the amount he 

was receiving when he was working for respondent (Exh. 20; Tr. 1091). 

Smith next obtained a job with Robert Coal Company on October 12, 1980, and 

Smith worked for Robert Coal until March 14, 1981, when he told management 

that he no longer wished to work for them because the mine released 

methane (Tr. 1093; 1096). Smith did not obtain any other employment 

between March 14, 1981, and September 14, 1981, when he accepted respondent's 

offer of reinstatement. Smith testified that he did seek work during 

the months of May, June, and July with Loftis Coal Company, Preece Coal 

Company, Triple J Coal Company, and Thacker Energy (Tr. 1088-1089). 

Smith brought notes from at least three individuals stating that he had 

been to the aforementioned companies' places of business to ask for work 

(Exhs. 22, 23, and 24). 

324 
Smith's testimony shows that he is entitled to receive back pay for 

the periods of unemployment which occurred after his discharge. The fact 

that he voluntarily stopped working for Robert Coal Company because he was 

afraid to work in a mine known to release methane could -possibly be considered as a reason for disallowing back pay, but I believe that he should 

be paid for the period between his decision to stop working in a gassy mine 

because he did try to find work in nongassy mines in the interim between 

his leaving Robert Coal Company and his reinstatement at respondent's mine. 

Under the Act, an unlawfully discharged miner has a right to be made 

"whole" to the extent possible. Smith was working in respondent's nongassy mine up to the time of his discharge on May 10, 1980. He should not 

be denied back pay because he chose to stop working in a mine which was 

more hazardous than respondent's mine. Therefore, I find that Smith should 

be provided back pay for the period between his departure from Robert Coal 

Company to the time of his reinstatement at respondent's mine. 

Consistent with the facts given above and the ruling made above, 

Jerry Lee Smith should be awarded back pay at the rate of $79.20 per day 

from May 10, 1980, to September 1, 1980. He should be awarded back pay at 

the rate of $84.80 ($79.20 +pay increase of $5.60) per day from 

September 1, 1980, to September 24, 1980, when he began working for Big 

Hill Coal Corporation. He only worked through September 26, 1980, for Big 

Hill before he was laid off. He should, therefore, be awarded back pay at· 

the rate of $84.80 per day from September 29, 1980, to October 12, 1980 

when he began working for Robert Coal Company. Smith stopped working for 

Robert Coal Company on March 14, 1981. Consequently, he should be awarded 

back pay at the rate of $84.80 per day from March 16, 1981, to September 14, 

1981, exclusive of the period from April 9, 1981, to June 8, 1981, when the 

mine was closed because of the strike. Smith is not entitled to be paid 

any differential between the rate of pay he received at respondent's mine 

and the rate he was paid by his other employers because all other employers 

either paid him the same wages he received from respondent, or more than he 

was receiving when he worked at respondent's mine (Tr. 1086). 

7. David May 

David May was discharged by respondent on May 10, 1980, and at that 

time he was being paid $68.56 per day by respondent (Tr. 1111; 1113). He 

tried to obtain work in May 1980 with Tab Coal Company. He asked for work 

with V & M Coal Company in October 1980 (Tr. 1112). He asked for work 

with Robert Coal Company in October 1980 (Tr. 1112). He also tried to get 

a job with V & M Coal Company. Although he was unsure about the date of 

his filing of an application for work with V & M Coal Company, he introduced 

as Exhibit 27 a note signed by Lorie Chafin stating that he had "put in an 

application here approximately 3 weeks ago" (Tr. 1119). May was finally 

able to get a job with Dot Coal Energy on January 9, 1981, and May was 

still working for Dot Energy on November 17, 1981, when he testified in 

this proceeding. May declined respondent's offer of reinstatement in 

September of 1981 because Dot Energy has paid him wages at a higher rate 

than he was paid by respondent (Tr. 1114-1115). 

325 
Based on the evidence summarized above, I find that David May is 

entitled to back pay at the rate of $68.56 from May 10, 1980, to September 1, 1980, and to back pay at the rate of $74.16 ($68.56 + pay increase of $5.60) from September 1, 1980, to January 9, 1981, when he began 

to work for Dot Coal Energy. 

8. H. K. Tilley, Jr. 

H. K. Tilley, Jr., was discharged by respondent on May 10, 1980 

(Tr. 1129) at which time respondent was paying him $73.20 per day (Tr. 1137). 

Tilley tried to obtain a job with Northern Coal Company on May 28, 1980 (Exh. 

29; Tr. 1133). He asked for work at Stemco on June 14, 1980 (Exh. 30; 

Tr. 1134). He inquired about work with Cooks Trucking in June 1980 (Tr. 

1138). He sought work with LMB River Coal Company on July 15, 1980 (Exh. 

31; Tr. 1135). He tried to get a job with T & B Tire Sales on August 20. 

1980 (Tr. 1134). He also asked for a job at Ratliff Trucking, Inc., on 

November 12, 1980 (Exh. 33; Tr. 1135). Tilley introduced as Exhibits 28 

through 33 various notes stating that he had made inquiries about obtaining 

work at the places mentioned above; additionally, Tilley testified that he 

made about six trips to each of the aforementioned places in an effort to 

find work (Tr. 1132). 

Tilley did not obtain a job until June 11, 1981, when he began to 

work for LMB River Coal Company. Even though Tilley was working for LMB 

River Coal Company when respondent offered to reinstate him at respondent's 

mine, Tilley accepted respondent 1 s offer and began working again for respondent on September 14, 1981 (Tr. 1159). Tilley returned to work at 

respondent's mine because LMB River Coal was considering closing its mine 

and because LMB River Coal's mine was "low" coal which had caused Tilley 

to injure his wrist (Tr. 1139). When Tilley began working for LMB River 

Coal, he was paid wages at the rate of $80.00 per day; therefore, he is 

not entitled to be paid any differential between the amount he earned at 

respondent's mine and the amount he was paid by LMB River Coal (Tr. 1138). 

Tilley injured his wrist again shortly after he returned to work for respondent and, at the time of the hearing on November 17, 1981, he had been 

off from work because of his injured wrist and because his teeth were 

abscessed and were giving him a great deal of trouble (Tr. 1157-1158). 

Respondent's counsel cross-examined Tilley at some length, as he did 

several of the witnesses, about their injuries and lack of motivation in 

obtaining jobs sooner than they did (Tr. 1141-1160). I find that Tilley's 

testimony is sufficiently credible to show that he made a reasonable and 

satisfactory effort to find work after he was discharged by respondent. 

The description which he provided of the type of injury he suffered and 

the kinds of treatment he has been given support a finding that he did not 

feign injuries just to be off from work (Tr. 1156-1157). The fact that he 

was out of work for well over a year with no income other than unemployment 

compensation would explain why he was unable to pay a dentist to stop the 

deterioration of his teeth (Tr. 1157-1158). During the period of his unemployment, he lived with his mother-in-law part of the time. It was 

necessary for him to sell his trailer for $1,000 (Tr. 1136). None of the 

aforesaid difficulties would be a reason to hold that Tilley should be 

denied reimbursement for the pay he lost as a result of his discharge. 

326 
Based on the facts summarized above, Tilley should be awarded back 

pay at the rate of $73.20 per day from May 10, 1980, to September 1, 1980, 

and should be awarded back pay at the rate of $78.80 ($73.20 + pay increase of $5.60) per day from September 1, 1980, to June 11, 1981, when he 

obtained a job with LMB River Coal Company, exclusive of the period from 

April 9, 1981, to June 8, 1981, when respondent's mine was closed because 

of the strike (Tr. 1054; 1165). As stated above, no differential need be 

paid because his wages with LMB River Coal were higher than the amount he 

would have received had he continued working for respondent, even if one 

takes into account respondent's pay increase of September 1, 1980. 

9. James Thacker 

Counsel for complainants stated at the hearing that James Thacker 

had attended a meeting on Monday, November 16, 1981, the day prior to the 

day of reconvening the hearing in this proceeding, and that Thacker had 

stated on Monday that he could not be away from work any longer than Monday. 

Thacker was, therefore, not present to testify in support of his request 

for payment of back wages (Tr. 1160). Complainants 9 counsel also explained 

that Thacker had obtained work after the discharge on May 10, 1980, more 

quickly than any of the other complainants. Thacker, in fact, worked for 

Teresa Coal Company between the time he was first discharged on April 10, 

1980, and the date of May 1, 1980, when all of complainants were offered 

jobs after the first discharge (Tr. 1163). Complainantsv counsel further 

stated that a calculation had been made which showed that Thacker was 

entitled to 25 days of back pay (Tr. 1162-1163). 

Based on the facts provided by complainants' counsel, Thacker would 

be entitled to back pay at the rate of $73.20 (Tr. 1163) for the period 

from May 10, 1980, to June 9, 1980, when Thacker began to work for Triple 

J Coal Company (Tr. 1161). There were 20 working days between May 10, 

1980, and June 9, 1980. Therefore, the remaining 5 working days for which 

Thacker is entitled to receive back pay occurred between the first discharge on April 10, 1980, and the second discharge on May 10, 1980. As 

I have previously explained in this order, the parties entered into a 

stipulation as to the amount of back pay to which each complainant is 

entitled for the period from April 10, 1980, to May 10, 1980 (Exh. 4). 

Under that stipulation, Thacker is said to be entitled to back pay for a 

period of 14-3/4 days, instead of the 5 days specified by complainants' 

counsel. The stipulation must have been negotiated before counse~ for the 

parties were aware of the exact facts with respect to Thacker. Therefore, 

the parties are at liberty to amend the number of hours for which Thacker 

is entitled to be paid between April 10 and May 10, 1980, or they may 

deduct days from the 20 days between May 10 and June 9, 1980, in determining the amount of back pay to which Thacker is entitled. In no event 

should respondent pay Thacker for more than 25 days of back pay because 

some of the other complainants have had their back pay reduced for failure 

to produce the dates on which they began to work, or ceased to work, for 

other employers. Since Thacker did not appear at the hearing in support 

of his claim for back pay, he must be held to be entitled only to the 25 

327 
days of back pay which was given in the record by his counsel in his 

absence (Tr. 1160-1163). 

Award of Interest 

Section 105(c)(2) of the Act provides that any miner who has been 

discharged in violation of section 105(c)(l) is entitled to reinstatement 

"* * * to his former position with back pay and interest". The Act does 

not specify the rate of interest which should be paid. In my decision 

issued in Local Union 1374, District 28, UMWA v. Beatrice Pocahontas Company, 

Docket No. VA 80-167-C, issued August 27, 1981, 3 FMSHRC 2004, I ordered 

miners to be compensated with interest at a rate of 12 percent per annum. 

I based the 12-percent rate on the fact that the Internal Revenue Service 

was paying that rate or requiring taxpayers to pay that rate in connection 

with overpayment or underpayment of taxes. The miners in this proceeding 

were discharged during a period when interest rates were as high as they 

have ever been. They would no doubt have had to pay at least 12 percent 

interest if they had tried to borrow money during the period of their 

unemployment. Therefore, I believe that the back pay which is required to 

be awarded in this proceeding should be made at a rate of 12 percent 

interest. 

The parties may defer computing interest until after my final decision 

awarding back pay is issued because interest will continue to run until the 

date of payment. The parties may~ therefore, prefer to make the interest 

calculations only once, that is, on the date of payment. 

WHEREFORE, tor the reasons given above, it is ordered: 

(A) Counsel for respondent and counsel for complainants shall confer 

for the purpose of cooperating in computing the amount of back pay which 

is due to each of the nine complainants, following the procedures which I 

have hereinbefore specified for each of the complainants. 

(B) Counsel for respondent and counsel for complainants shall supply 

me with the amounts due each complainant on or before February 8, 1982. 

(C) The amounts due each complainant for the period from April 10, 

1980, to May 1, 1980, are those stipulated to by the parties in Exhibit 4, 

except for a possible adjustment which counsel may wish to make in awarding 

Complainant James Thacker back pay for a period of 25 days. 

~a. rlb.JA 

Richard C. Steffey~ Administrative Law Judge 

(Phone: 703-756-6225) 

328 
Distribution: 

Darryl A. Stewart, Attorney, Office of the Solicitor, U. S. Department of Labor, Rm. 280, U. S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Charles E. Lowe, Esq., Attorney for Mullin Creek Coal Company, Inc., 

Lowe, Lowe & Stamper, P. O. Box 69, Pikeville, KY 41501 (Certified 

Mail) 

329 
LOWE & LOWE 

ATTOFINEYS AT l.AW 

SECONO STREET 

PIKEVILLE. KENTUCKY 41501 

CHARLES E. LOWE 

C+-tA~LES E. t.OWE, _ti::=!. 

January 26, 1982 

Mr. Darryl ;_. Stewart 

Office of the Solicitor 

280 U. S. Courthouse 

801 Broadway Nashville~ Tennessee 37203 

TELEPHONE 1606) 

OFFICE 43?~72'13 & .d32·525.:l 

!'>ES. 4:37-7615 & 437-6120 

RE: Secretary of Labor, on 

behalf of Clyde Jr. Smithv 

et al 

Dear Sir: 

VSo 

J'Vrullin Creek Coal Company~ Inc" 

Docket No. KENT 81-17-D 

The company's bookkeeper has just called me and stated 

that your figures in the above captioned matter appears 

to be correct, including vacation pay and according to 

the ruling of the Administrative Law Judge. 

I am enclosing a copy of your calculations with a copy 

of this letter to the Judge for compliance with the 

Order to have this to him before February 8, 1982. 

I remain. 

FEDERAL MmE SAFETY AUD 

FEB 1 1982 

BEAtTH REVIEW COMMISSIOtf 

CEL/ar 

cc: Hon. Richard c. Steffey Administrative Law Judge Federal Mine Safety and Health Review Commission 

2 Skyline, 10th Floor 

5203 Leesburg Pike . Falls Church, Virginia 22041 

330 
January 22, 1982 

oOl BROAm1AY 

NASHVILLE, TENNESSEE 37203 

615-251-5818 

SOL/DAS/DCB 

Mr. Charles E. Lowe 

Attorney at Law 

f EDERAl Mm£ SAJETY Arm 

FEB 1 1982 

Post Off ice Box 69 

Pikeville, Kentucky 41501 BEA~ TH REVIEW COMMISSION 

Re~ Secretarv of Laborv on behalf of 

Clyde Jr. Smith, et al v. Mullin Creek 

Coal Company, Inc. 

Docket No. KENT 81-17-D 

Dear Mr. Lowe: 

In accordance with Judge Steffey 1 s January 12u 1982 Order: please 

find stated below our computations of the gross back wages, 

exclusive of interest, due to each of the nine complainants 

involved in the proceeding stated above. 

(1) Thomas V. Walker 

Due 15 days' pay for May, 1980 at $73.20 per day = $ 1,098.00 

Due 21 days' pay for June, 1980 at $73.20 per day = 1,537.20 

Due 22 days' pay for July, 1980 at $73.20 per day = 1,610.40 

Due 21 days' pay for August, 1980 at $73.20 per day = 1,537.20 

Due 22 days• pay for September, 1980 at $78.80 per day = 1,733.60 

Due 23 days' pay for October, 1980 at $78.80 per day = 1,812.40 

Due 19 days' pay for November, 1980 at $78.80 per day = 1,497.20 

Due 22 days' pay for December, 1980 at $78.80 per day = 1,733.60 

Due 21 days' pay for January, 1981 at $78.80 per day = 1,654.80 

Due 20 days' pay for February, 1981 at $6.80 per day = 136.00 

Due 22 days' pay for March, 1981 at $6.80 per day = 149.60 

Due 6 days' pay for April, 1981 at $6.80 per day = 4p .. ao 

Due 0 day's pay for May, 1981 at $0 per day = 0 

Due 16 days' pay for June, 1981 at $6.80 per day = 108.80 

Due 23 days' pay for July, 1981 at $6.80 per day = 156.40 

Due 21 days' pay for August, 1981 at $6.80 per day = 142.80 

Due 9 days' pay for September, 1981 at $6.80 per day = 61.20 

Subtotal = $15,010.00 

Agreed stipulated amount for period April 10, 1980 

through May 3, 1980 1,216.95 

Total = $16,226.95 

331 
Page 2 

(2) John R. Telfer 

Due 15 days' pay for May, 1980 at $79.20 per day = 

Due 21 days' pay for June, 1980 $79.20 per day = 

Due 22 days' pay for July, 1980 at $79.20 per day = 

Due 21 days' pay for August, 1980 at $79.20 per day = 

$ 1,188.00 

1,663.20 

1,742.40 

1,663.20 

Due 22 days' pay for September, 1980 at $84~80 per day= 

Due 22 daysi pay for October, 1980 at $84.80 per day = 

1,865.60 

1,865.60_ 

Due 15 days' pay for Julyv 1981 at $84.80 per = 

Due 21 days' pay for August, 1~81 at $84.80 per aay = 

Due 21 days' pay for September, 1981 at $84.80 r day = 

Subtotal = 

80 

1,272.00 

lf780.80 

1,780.80 

Agreed stipulated amount for period April 10 8 

through May l, 1980 1$158.30 

Total = $15,979.90 

(3) Clvde Smith, Jr. 

Due 

Due 

Due 

Due 

15 days' 

21 days' 

22 days 1 

21 days' 

pay for 

pay 

pay for 

pay for 

May, 1980 at $73.20 per day = 

June, 1980 at $73.20 per day = 

July, 1980 at $73.20 per day = 

August, 1980 at $73.20 per day = 

Due 22 days' pay for September, 1980 at $78.80 per day= 

Due 23 days' pay for October, 1980 at $78.80 per day= 

Due 1 day's pay for November, 1980 at $78.80· per day = 

$ lu098o00 

lv537o20 

1,610.40 

1,537.20 

1,733.60 

1,812.40 

78.80 

subtotal = $ 9,407.60 

Agreed stipulated amount for period April 10, 1980 

through May 1, 1980 

Total 

1,070.55 

= $10,478.15 

(4) James R. Clevenqer 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

15 days' 

21 days' 

22 days' 

21 days' 

22 days' 

23 days' 

19 days' 

22 days' 

21 days' 

20 days' 

22 days' 

6 days' 

0 day's 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

for 

for 

for 

for 

for 

for 

for 

for 

for. 

for 

for 

for 

for 

May, 1980 at $79.20 per day = 

June, 1980 at $79.20 per day = 

July, 1980 at $79.20 per day = 

August, 1980 at $79.20 per day = 

September, 1980 at $84.80 per day= 

October, 1980 at $84.80 per day= 

November, 1980 at $84.80 per day= 

December, 1980 at $84.80 per day= 

January, 1981 at $84.80 per day = 

February, 1981 a~ $84.80 per day = 

March, 1981 at $84.80 per day = 

April, 1981 at $84.80 per day = 

May, 1981 at $0 per day = 

332 

$ 1,188.00 

1,663.20 

1,742.40 

1,663.20 

1,865.60 

1,950.40 

1,611.20 

1,865.60 

1,780.80 

1,696.00 

1,865.60 

508.80 

0 
Pc:ge 3 

James R. Clevenger - continued 

Due 16 days' pay for June, 1981 at $84.80 per day = 

Due 23 days' pay for July, 1981 at $84.80 p~r day = 

Due 21 days 1 pay for August-, 1981 at $84. 80 per day = 

Due 9 days' pay for September, 1981 at $84.80 per day= 

1,356.80 

1,950.40 

1,780.80 

763.20 

Subtotal = $25,252.00 

Agreed stipulated amount for period April 10, 1980 

through May 1, 1980 

(5) Jerrv L. Smith 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

15 daysi 

21 daysG 

22 days' 

21 days' 

19 days 1 

8 days 1 

12 days' 

6 days 1 

0 day's 

16 days' 

23 days' 

21 days' 

9 days' 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

for 

for 

for 

for 

for 

for 

for 

for 

for 

for 

for 

for 

for 

Total = 

Mayu 1980 at $79.20 per day = 

June, 1980 at $79.20 per day = 

Julyu 1980 at $79.20 per day = 

August, 1980 at $79.20 per day = 

Septernberu 1980 at $84.80 per day= 

October, 1980 at $84.80 per day= 

Marchu 1981 at $84.80 per day = 

April, 1981 at $84.80 per day = 

May, 1981 at $0·per day = 

June, 1981 at $84.80 per day = 

July, 1981 at $84.80 per day = 

August, 1981 at $84.80 per day = 

September, 1981 at $84.80 per day= 

lrl58.30 

$26,410.30 

$ lql88.00 

1,663.20 

lu742.40 

1,663.20 

1,611.20 

678.40 

1,017.60 

508080 

0 

1,356.80 

1,950.40 

1,780.80 

763.20 

Subtotal = $15,924.00 

Agreed stipulated amount for period April 10, 1980 

through May 1, 1980 1,158.30 

(6) David May 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

Due 

15 days' 

21 days' 

22 days' 

21 days• 

22 days' 

23 days' 19 days' 

22 days' 

6 days' 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

pay 

for 

for 

for 

for 

for 

for 

for 

for 

for 

Total= $17,082.30 

May, 1980 at $68.56 per day = 

June, 1980 at $68.56 per day = 

July, 1980 at $68.56 per day = 

August, 1980 at $58.56 per day = 

September, 1980 at $74.16 per day = 

October, 1980 at $74.16 per day= 

November, 1980 at $74.16 per day = 

December, 1980 at $74.16 per day= 

January, 1981 at $74.16 per day = 

$ 1,028.40 

1,439.76 

1,508.32 

1,439.76 

1,631.52 

1,705.68 

1,409.04• 

1,631.52 

444.96 

Subtotal = $12,238.96 

Agreed stipulated amount for period April 10, 1980 

through May 1, 1980 1,002.69 

Total = $13,241.65 

333 
F'eigs 4 

(7) H. K. Tilley, Jr. 

Due 15 days' pay for May, 1980 at $73.20 per day = $ 1,098.00 

Due 21 days• pay for June, 1980 at "$ 7 3 • 2 0 per day = 1,537.20 

Due 22 days' pay for July, 1980 at $73.20 per day = 1,610.40 

Due 21 days' pay for August, 1980 at $73.20 per day = 1,537.20 

Due 22 days' pay for September, 1980 at $78.80 per day = 1,733.60 

Due 23 days' pay for October, 1980 at $78.80 per day = 1,812.40 

Due 19 days' pay for November, 1980 at $78.80 per day = 1,497.20 

Due 22 days' pay for December, 1980 at $78.80 per-oay = 1,733.60 

Due 21 days' pay for January, 1981 at $78.80 per day = 1;654.80 

Due 20 days' pay for February, 1981 at $78.80 per day = 1 9 576.00 

Due 22 days' pay for March, 1981 at $78.80 per day = 1?733.60 

Due 6 days» pay for April, 1981 at $78.80 per day = 472.80 

Due 0 day 1 s pay for Mayu 1981 at $78.80 per day = 0 

Due 2 days' pay for Juneu 1981 at $78.80 per day = 157.60 

Subtotal = $18,154.40 

Agreed stipulated amount for period April lOu 1980 

through May 1, 1980 1£070.55 

Total = $19v224o95 

( 8) Monroe Mullins 

Due 15 days' pay for May, 1980 at $79.20 per day = $ 1,188.00 

Due 21 days' pay for June, 1980 at $79.20 per day = 1,663.20 

Due 6 days' pav 

- J. for July, 1980 at $79.20 per day = 475.20 

Subtotal = $ 3,326040 

Agreed st~pulated amount for period April 10, 1980 

through May 1, 1980 1,158.30 

Total = $ 4,484.70 

(9) James Thacker 

Due 83 hours' pay for May 10, 1980 to June 9, 1980 

at $9.15 per hour = $ 759.45 

Agreed stipulated amount for period April 10, 1980 

through May 1, 1980 = 1,07_0.55 

Total = $1,830.00 

If your computations are not the same as ours, please call me 

here in Nashville at 615-251-5818 so that we may discuss our 

differences prior to the required February 8, 1982 submission to 

Judge Steffey. 

334 
Very truly yours, 

RALPH D. YORK 

Acting Associate Regional Solicitor 

335 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

1FEB 8 1982 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CONSOLIDATION COAL COMPANY, 

Respondent 

Contest of Citation 

Docket No. WEVA 81-222-R 

Citation No. 805557; 12/30/80 

Blacksville Noo 2 Mine 

Civil Penalty Proceeding 

Docket No, WEVA 81-361 

A/O No, 46-01968-03076 

Blacksville No. 2 Mine 

DECISION AND ORDER 

The captioned review-penalty proceeding is before me on reassignment 

from Judge Cook who held a consolided hearing in McHenry, Maryland on 

July 28, 1981. 

There is no genuine dispute as to any of the material facts. 1/ 

The dispositive issue is whether as a matter of law 30 C.F.R. 70.20l(d) 

:!:,/ mandates corrective action dust sampling on each production shift 

during the time fixed for abatement. 

1/ The operator's claim that inculpatory statements to Inspector Ryan 

by the operator's safety superintendent were inadmissible hearsay is 

without merit. FRE 80l(d)(2)(C), (D). Under the Federal Rules of 

Evidence statements made to a declarant by an authorized agent of a 

party acting within the scope of his employment are excluded from the 

category of hearsay. As the Advisory Committee Note shows no guarantee 

of trustworthiness is required in the case of such an admission, The 

la.ck of merit in the objection was underscored when counsel for the 

operator chose to elicit the same inculpatory information from the 

operator's dust foreman, Mr. Reese (Tr. 67). This was later confirmed 

in questioning by the trial judge (Tr. 81). 

].:./ The standard provides: 

"During the time for abatement fixed in a citation for violation of 

[the respirable dust standards], the operator shall take corrective 

action to lower the concentration of respirable dust to within the 

permissible concentration and then sample each production shift until 

five valid respirable dust samples are taken." 

336 
The operator contends that the referent of the demonstrative 

pronoun "then" is any time during the time fixed for abatement. Where, 

as in this case, the time fixed for abatement was some 32 days, the 

operator's interpretation would permit several production shifts to be 

run without sampling prior to the time fixed for abatement. 

Counsel for MSHA claims the proper interpretation is the "very 

first production shift" following the accomplishment of corrective 

adjustments to the operator's dust control system. The operator 

concedes it did not begin sampling until the second production shift 

after corrective action was taken. 

Both interpretations are at variance with the statutory directive 

that underlies the improved standard. The standard issued in April 1980 

is a paraphrase of section 104(f) of the Mine Safety Law, which is 

identical with old section 104(i) of the Coal Act, 30 U.S.C. § 814(£), 1/ 

The statute provides that after a notice of violation of the respirable 

dust standard issues "fixing a reasonable time for abatement of the 

violation," the operator "[d]uring such time," shall "cause samples 

, •• to be taken of the affected area during each production shift. u 

Under the plain and unambiguous language of the statute it is clear that 

ftduring the time fixed for abatement," here the 32 days, the operator 

was obligated to take dust samples "during each production shift" and 

not just on the production shifts that came after corrective action was 

taken. 

Since it would do violence to the Congressional intent and to 

established canons of construction of remedial legislation to construe 

the improved standard more narrowly than the statute, I find the phrase 

"and then" as used in the improved standard means "during the time fixed 

for abatement." 4/ For these reasons, I conclude the failure to sample 

on the first production shift after corrective action was taken was a 

violation of 30 C.F.R. 70.20l(d). 

Because the operator failed to sample during only one production 

shift after compliance was achieved the miners were not exposed to any 

11 This provides: 

"If, based upon samples taken, analyzed, and recorded pursuant to 

section 202(a), ••• the applicable limit on the concentration of 

respirable dust required to be maintained under this Act is exceeded and 

thereby violated, the Secretary or hi.s authorized representative shall 

issue a citation fixing a reasonable ·time for the abatement of the 

violation. During such time, the operator of the mine shall cause 

samples described in section 202(a) to be taken of the affected area 

during each production shift •••• " 

!!../ Under section 10l{a)(9), 30 U.S.C. § 81l(a)(9), no improved standard 

can reduce the protection afforded miners by a statutory standard. 

337 
• 

significant health hazard. On the other hand, the operator is chargeable with knowledge that sampling was required on each production shift 

during the period fixed for abatement. Any claimed ambiguity in the 

improved standard is resolved by reference to the statutory standard in 

effect since 1970. ·That ignorance of the law is no defense applies 

whether the law be a statute or a duly promulgated and published 

regulation. United States v. International Minerals & Chemical Corp. 

402 U.S. 558, 563 (1971). 

For these reasons, and after considering the other statutory 

criteria, I conclude the amount of the penalty warranted for the violation found is $150.00. 

Accordingly, it is ORDERED that the operator pay the penalty 

assessed, $150.00, on or before Friday, February 26, 1982, and that 

subject to payment the captioned matt/ be DISMISSED. 

/' 

I 

/! 

Distribution: 

. seph B. Kenne y 

Administrative Law 

Samuel Skeen, Jr., Esq., Consolidation Coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

David E. Street, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

338 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 9 J982 

CONSOLIDATION COAL COMPANY, 

Contestant 

Contest of Citation and Order 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISIONS 

Docket No. WEVA 82-11-R 

Citation No. 858823; 9/10/81 

Docket No. WEVA 82-12-R 

Order No. 8588 23; 9/10/81 

Blacksville No. 2 Mine 

Appearances: Jerry F. Palmer and Juanita M. Littlejohn, Esquires, 

Pittsburgh, Pennsylvania, for the Contestant; Howard 

K. Agran, Attorney, U.S. Department of Labor, Philadelphia, Pennsylvania, for the Respondent. 

Before: Judge Koutras 

Statement of the Proceedings J 

These consolidated proceedings concern two contests filed by the 

contestant on October 13, 1981, pursuant to sections 104(d) and 107(e) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et~· 

challenging the propriety and legality of a section 104(a) citation and 

a section 107(a) imminent danger withdrawal order issued by Federal 

Mine Inspector Cecil M. Branhan on September 10, 1981, after inspection 

of the subject mine. 

Respondent filed timely answers in these contests asserting that 

the citation and order were properly issued, and pursuant to notice served 

on the parties, a hearing was held in Washington, Pennsylvania on January 12, 

1982, and the parties appeared and participated fully therein. 

Discussion 

The section 107(a) - 104(a) citation-order issued by inspector Branham 

on September 10, 1981, no. 858823, states the following alleged "condition 

or practice": 

In the G Bleeders Section (I.D. 016), 2.6 volume per 

centum of methane was being liberated in the face of 

the No. 5 entry (94 feet inby survey station 5698). 

339 
The current of air in this entry was not sufficient 

to dilute, render harmless, or carry away this methane. 

Tests were made 12 inches from the rib, 13 inches from 

the roof, and 33 inches from the face and air samples 

were taken. 

Inspector Branham cited a 

30 CFR 75.301, and also made a 

"significant and substantial. 11 

his order was "the No. 5 entry 

5698 to the face (94 feet). 11 

Stipulations 

violation of mandatory safety standard 

finding that the alleged violation was 

He also found that the area affected by 

of the G Bleeder section from survey station 

The parties stipulated to the following: 

lo The Blacksville No. 2 Mine is owned and operated by contestant, and is subject to the provisions of the Acto 

2o The presiding Administrative Law Judge has jurisdiction 

to hear and decide these cases. 

3. MSHA Inspector Cecil M. Branham is a designated authorized 

representative of the Secretary of Labor and properly served 

the citation in question on a representative of the contestant 

in accordance with sections 104 and 107 of the Act, 

4. A true and correct copy of the citation-order may be admitted 

as part of the record in this case. 

Testimony and evidence presented by the respondent MSHA. 

MSHA Inspector Cecil M. Branham testified as to his background and 

experience and confirmed that he issued the citation in question after conducting 

a regular inspection at the mine on September 10, 1981. He identified a copy 

of exhibit C-1 as a sketch of the five entries on the G bleeder area in 

question and he testified as to what he found during his inspection. He 

testified that he took several methane readings with his G-7 methanometer 

near the continuous miner parked at the face of the No. 5 entry, as well 

as at the face itself after additional roof support was installed at 

the face. His readings ranged from 2.2 to 3.0, and he averaged it out to 

2.6 and that is what he recorded on the face of the citation. 

Inspector Branham testified that no mining was taking place at the 

No. 5 face, the power was off, the continuous miner was not energized, 

the fan was not running and no miners were working in the area. He made no 

permissibility inspection, took no air readings at the face, but did 

take an air reading outby the face and fan location shown on exhibit C-1 

and recorded 23,000 cubic feet of air per minute at that location. 

340 
With regard to the citation asserting a violation of section 75.301, 

Mr. Burnham stated that he cited this section because of the fact that 

he believed the presence of the amounts of methane which he found indicated 

to him that the air and ventilation in the area was not sufficient to 

carry away, dilute, or render the methane harmless. 

With regard to the imminent danger portion of the citation which he 

issued in Docket WEVA 82-12, ·Mr. Burnham stated that he followed 

the MSHA policy guidelines set forth in the inspector's manual under section 

75.308 which states that the presence of methane in excess of 1.5 may support 

an imminent danger withdrawal order. He also indicated that there were no 

indications that mine management was aware of the presence of methane 

at the face or was doing anything to correct the situation. He confirmed 

that the methane condition was corrected within an hour or so by 

adjustments made to the line curtain which had been installed along the 

left side of the rib. The curtain was tightened up, slack was taken up, 

and another plastic curtain was installed across the face near the miner 

and this reduced the methane level to the allowable limits. 

Mr. Burnham confirmed that the continuous mining machine would deenergize in the event dangerous levels of methane were encountered, but 

he saw no indications that the face area had been dangered off. After 

recording his methane readings he orally advised inspector escort 

Delbert Eddy that the "section was on order". He remained in the area 

while the abatement was in process and subsequently terminated the order 

at 11:15 a.m. after the methane levels were reduced below the 1.0 level. 

He believed that the adjustments made to the line curtain cured the problem. 

Contestant's Testimony 

Roy D. Stone, testified that he has been employed by the contestant 

as a section foreman for the past ten years. He detailed his normal routine 

concerning his inspection of the section prior to commencing mining 

activities and stated that on September 10, 1981, he examined all five faces 

in the G bleeder section and recorded his findings in the fire boss book. 

He confirmed that he found methane is the number 5 entry face area and 

stated that it amounted to .6 or .7 on the left side of the miner and a 

little better than 1 or 1.5 on the right side although he could not take 

a methane recording directly at the face because of lack of roof support, he 

believed that it probably exceeded the levels which he detected by means 

of his methane detector, and it probably reached a level of 2.5 or 3.0. 

Mr. Stone stated that when he discovered the presence of methane he 

proceeded to take corrective action by means of making adjustments to 

the existing ventilation curtain. This was done by tightening up the 

curtain which had been sagging from the roof because it was wet and 

weighting down the bottom portion which had been "flying around." 

Mr. Stone stated that when he detected the presence of methane in the 

working place in question he proceeded to take corrective action and he 

stated that he advised Mr. Eddy of this fact but did not directly discuss 

341 
it with inspector Burnham. A spad gun was used to tighten up the ventilation 

curtain and additional curtain was hung to dissipate the methane. He 

indicated that he was not aware that an innninent danger order had been 

placed on the section at the time abatement efforts were going on and 

maintained that he was in the process of attempting to adjust the ventilation 

to get rid of the methane at the time that the corrective action was 

initiated by inspector Burnham. 

Findings and Conclusions 

At the conclusion of the testimony of Mr. Stone, the parties advised 

me that after further joint consideration of the matter a proposed 

compromise was reached which would enable the contestant to withdraw 

its contests on the basis of the following agreements and stipulation 

freely entered by counsel for both sides: 

l. Contestant will withdraw its contest with respect 

to that portion of citation 8588823 which alleges 

a violation of 30 CFR 75.301, and contestant no 

longer desires to contest the issuance of the section 

104(a) citation which charges contestant with a 

violation of mandatory safety standard 75.301. 

2. Respondent MSHA will vacate that portion of citation 

8588823 which alleges that the condition or practice 

described by Inspector Burnham constituted imminent 

danger under section 107(a) of the Act. Inspector 

Burnham will modify the citation to reflect that the 

107(a) imminent danger order has been vacated and rescinded. 

Respondent's counsel asserted that Inspector Branham is in agreement 

with the aforementioned proposed disposition of these cases. After due 

consideration of the agreed-upon settlement disposition of these cases, 

including a review of the record and arguments presented by the parties, I 

conclude and find that the proposed disposition is reasonable and warranted 

and it is approved. Accordingly, IT IS ORDERED that: 

1. In docket WEVA 82-11-R, the section 104(a) citation 

citing the contestant with a significant and substantial 

violation of mandatory safety standard 30 CFR 75.301, 

is AFFIRMED, and contestants motion to withdraw its contest 

in this regard is granted. 

2. In docket WEVA 82-12-R, the section 107(a) imminent 

danger order is rescinded and vacated and respondent will 

modify the citation accordingly. 

Judge 

342 
Distribution: 

Howard K. Agran, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Jerry Palmer, Esq., Consolidation Coal Co., Consol Plaza, 1800 Washington 

Rd., Pittsburgh, PA 15241 (Certified Mail) 

343 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

FEB 101982 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, 

v. 

C F & I STEEL CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~~~~-

DOCKET NO. WEST ~~387 

A/C No. 05-00296-03040 

MINE: Allen 

DECISION AND ORDER 

Appearances: 

James H. Barkley, Esq., Office of the Solicitor 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

Petitioner filed a petition for assessment of a civil penalty against 

the respondent for alleged violation of 30 C.F.R. 75.1003-Z(e), promulgated 

by authority of the Federal Mine Safety and Health Let of 1977. The cited 

section states in pertinent part "Electrical contact shall be maintained 

between the mine track and the frames of off-track mining equipment being 

moved in-track •.. " 

Respondent denies that there was a violation of the cited regulation. 

344 
Findings of Fact 

1. On March 26, 1980 at respondent's Allen Coal Mine an MSHA 

inspector observed a belt drive and motor weighing between 500 and 700 

pounds which had been loaded onto a flatcar being pulled by an electric 

trolley locomotive. 

2. The trolley was powered by a direct current of 250 volts of 

electricity which passed from the overhead trolley wire through the 

locomotive and then down through the rail as a return conductor. 

3. The flatcar was constructed of steel and the belt drive and motor 

were mainly constructed of steel, The flatbed surface was 16 to 18 

inches above the rails on which it rode, The top of the belt drive and 

motor was approximately 6 to 8 inches below the trolley wire, 

4, The flatcar had an amount of sand and dirt on it, and some of it 

had been scrapped off in order to mount the belt drive and motor onto the 

flatcar, 

ISSUE 

Was electrical contact being maintained between the mine track, the 

flatcar, and the belt drive and motor while the locomotive was moving the 

equipment? 

DISCUSSION 

The MSHA inspector testified that in the event contact is made between 

the bare trolley wire and the metal casing of the belt drive assembly, the 

equipment would become energized. In order to prevent a miner from receiving an electrical shock from an energized piece of equipment on a flat 

-car there must be a solid connection of metal-on-metal so that a 

continuous ground to the rail is provided. 

The flatcar surface had some sand and dirt on it, some of which had 

been scrapped off in order to mount the belt drive on the car. The 

inspector testified that although the load consisted of metal sitting on 

metal, a chain of that type is not acceptable as a continuous connection. 

The load might be "sporadically altered" and with the sand and dirt present 

on the flat bed rail car, there was no safe guard from electrical contact 

to any person who might touch the belt drive when it might be energized, 

The cited regulation states, however, that "electrical contact shall 

be maintained", and the evidence does not show that this was not being 

done. The inspector testified that he was assuming that with "ste,~1-onsteel between the belt drive and the flatcar, and steel-on-steel between 

the flatcar and the rails" there was electrical contact. The inspec::or did 

not use any means to determine whether there was electrical contact between 

the flatcar and the belt drive and motor when the citation was issued. The 

inspector stated that an ohmmeter could be used for that purpose. 

345 
The regulation states that electrical contact shall be maintained, but 

it does not state how this is to be accomplished. Although there was 

evidence that some sand on the flatcar surface might break the electricRl 

contact, there was no evidence that contact was not being maintained at the 

time the inspection took place. 

The evidence presented leaves me in a position of having to speculate 

as to whether the required electrical contact was or was not present at the 

time the citation was issued; or, to speculate further, whether or not 

electrical contact might be broken if the load became "sporadically 

altered". The petitioner must show that electrical contact was not, in 

fact, being maintained in order to present a prima facie case. Having 

failed to do so, the citation should be vacated. 

CONCLUSION OF LAW 

·1. The undersigned administrative law judge has jurisdiction over the 

parties and subject matter of these proceedings. 

2. The petitioner has failed to present a prima facie case showing a 

violation of 30 C.F.R. 75.1003-2(e) as alleged in Citation No. 388365. 

ORDER 

Citation No. 388365 and the civil penalty therefor is VACATED, 

Distribution: 

James H. Barkley, Esq. 

Office of the.Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

346 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

fEB 11 \982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)~ Docket No. YORK 80-101-M 

Petitioner A.c. No. 30-00006-05009 

Vo 

Ravena Quarry and Plant 

ATLANTIC CEMENT COMPANY, INCw~ 

Respondent 

Appearances~ 

Before: 

DECISION 

Jithender Rao, Esqw, Office of the Solicitor 9 U.So Department 

of Labor, New York, New York~ for Petitioner; 

Richard K. Muser, Esq., Clifton, Budd, Burke & DeMaria~ 

New York, New York, for Respondent. 

Judge Melick 

This case is before me upon a petition for ass~~sment of civil penalty 

under section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et~-, the "Act," alleging violations of mandatory standards. The general issues are whether Atlantic Cement Company, Inc. 

(Atlantic), has violated the regulations as alleged in the petition filed 

herein, and, if so, the appropriate civil penalties to be assessed for the 

violations. A full evidentiary hearing was held with respect to Citation 

No. 206226. A proposal for settlement was submitted with respect to the 

remaining citations and was amplified with testimony and docmnentary evidence. 

Petitioner also requested to withdraw one citation (Citation No. 205400) for 

insufficient evidence and that request was approved on the basis of an 

adequate proffer by counsel. Petitioner also requested to withdraw its 

determination that the violations in Citation Nos. 205397 and 205399 were 

"significant and substantial" as defined in the Act and as interpreted in 

Secretary of Labor v. Cement Division, National Gypsum Company, 3 FMSHRC 822 

(1981). The Secretary proferred sufficient information from which it could 

be determined that such withdrawal was appropriate and the request was 

accordingly approved at hearing. The parties agreed in the proposal for 

settlement to specific penalty amounts as to the remaining citations and 

submitted evidence only concerning the disputed question of whether those 

violations were "significant and substantial" under the National Gypsum 

standard. 

34 17 
Contested Citation 

Citation No. 206226 charges a violation of the mandatory standard at 

30 C.F.R. § 56.11-12. That standard provides in relevant part that 

"[O]penings above, below, or near travelways through which men or materials 

may fall shall be protected by railings, barriers, or covers." The citation 

herein specifically alleged in relevant part as follows: 

• • • that the storage area for filters at the top of the 

steel rack was not provided with a railing or barrier to keep 

a person from falling over the edge to the concrete floor 

approximately 9 feet below. The supervisor stated that a 

person used this area approximately once per week to obtain 

filters. This steel rack was located in the storage room. 

The essential evidence is undisputed and the factual allegations set 

forth in the citation are not contested. Atlantic contends only that those 

facts do not support a violation of the cited standard. Alva Shearp an 

employee of Atlantic for 19 years, admitted that filters and screens were 

indeed stored on the cited platformo He emphasized however that most of 

the filters were stored so they could be identified and removed while stand~ 

ing on a steel safety ladder without the necessity of climbing on to the 

cited platform itself. Approximately once a week however~ it would be 

necessary for someone to step onto the cited platform to obtain other types 

of filters. In the 13 years Shear had worked at Atlantic no one had ever 

fallen off the platformo 

The issue here presented is whether this storage platform constituted a 

"travelway" within the meaning of the cited standardo Inasmuch as it is 

admitted that at least occassionally work.men did in fact walk or travel on 

this platform in order to locate and remove at least some of the filters, it 

is clear that those portions of the platform over which the men must travel 

are "travelways." I am bound by the plain meaning of that term. Since the 

"opening" or drop-off along the edges of the platform were not protected by 

"railings, barriers, or covers" it is apparent that the violation existed as 

charged. 

In determining whether the violation was "significant and substantial," 

I must consider whether the violation could be a major cause of a danger to 

safety and health and whether there existed a reasonable likelihood that the 

hazard contributed to would result in an injury or illness of a reasonably 

serious nature. National Gypsum, supra. The evidence in this case shows 

that miners could be working on the exposed steel platform some 9 feet above 

a concrete floor as often as once a week. These miners were accordingly 

exposed with some frequency to a serious hazard. There is little doubt that 

if someone fell from that height to the concrete floor, he could suffer 

serious if not fatal injuries. Accordingly, I find that the violation herein 

was "significant and substantial." For similar reasons, I also find a high 

degree of gravity. The hazard was also obvious but apparently no injuries 

had ever resulted from the condition. I find accordingly that Atlantic is 

348 
chargeable with simple negligence in failing to have protected against it. 

The condition here cited as with all the conditions listed in this case were 

appropriately abated. The operator had received 31 assessed violations in 

the previous 24-month period. The plant here at issue worked 700,000 man 

hours per year. Under the circumstances I find that a penalty of $200 is 

appropriate for this violation. 

Partially Contested Citations 

Respondent does not dispute that violations existed as charged in 

Citation Nos. 207687, 207688, 207689, 206227, and 206228, but disputes the 

"significant and substantial" findings made by the Secretary in connection 

therewith. Accordingly, evidence was submitted at hearing with respect to 

.that issue. 

Citation No. 206227 This citation alleges a violation of the mandatory 

standard at 30 C.F.R. § 56.9-22 charging that 11 a berm was not provided for 

approximately 500 feet along the northeast side of the elevated roadway to 

the waste dump water pump." The allegations in the citation are not contested. It is undisputed that the height of the roadway varied from 1 to 

10 feet and that an ice-covered lake was situated adjacent to the bottom of 

the slope. It is also undisputed that the roadway was infrequently used, 

perhaps once a week, by an empty front-end loader having an axle height of 

approximately 2 to 3 feet and by a pickup truck. At the time of the citation, there also existed on the roadway patches of ice, one as large as 

8 feet by 12 feet in size. According to Ed Tompkins, a union representative 

who accompanied the MSHA inspector, the road in question was used almost 

exclusively by maintenance pickup trucks travelling at only 5 to 8 miles an 

hour. A small berm of 6 to 12 inches and clumps of trees along the roadway 

afforded some protection but the trees were spaced from 10 to 50 feet apart. 

Within this framework of evidence, I find that indeed injuries would be 

reasonably likely to occur from the absence of an adequate berm along the 

cited roadway and that if the injuries were sustained they would be reasonably serious, and possibly fatal to the driver and passengers of a truck 

or front-end loader falling down the unprotected sections of slope. Under 

the circumstances, the admitted violation is "significant and substantial." 

National Gypsum, supra. 

Citation No. 206228 This citation charges a violation of the standard 

at 30 C.F.R. § 56.12-30 and alleges that "the 480-volt exposed leg wires for 

the waste dust water pump were not enclosed to keep a person from coming into 

contact with them." The allegations in the citation and the factual representations by MSHA inspector Gary Kettlekamp are not in dispute. Kettlekamp 

testified that the wires were exposed for several inches. A telephone was 

located only 6 inches beneath the junction box thereby placing an individual 

using the telephone in close proximity to the exposed wiring. There was a 

"danger" sign on the door to the building in which the wires were exposed 

and the .wire was not energized at the time of the citation. Kettlekamp 

pointed out, however, that whenever the dust pump was in operation the wires 

would be energized. 

349 
According to Union Representative Tompkins, only electricians were permitted to use this building. Its use was even further restricted to cases of 

pump failure occurring usually no more than twice a month. It is undisputed 

however, that contact with the exposed energized wiring could be fatal. 

Within this framework of evidence, I conclude that there was indeed sufficient 

opportunity for exposure to the hazard that injuries would have been reasonably likely to occur from the violative condition and that if an individual 

would have contacted the exposed wiring, the injuries would have been reasonably serious and quite possibly fatal. The violation was therefore 

"significant and substantial." 

Citation No. 207687 This citation alleges a violation of the standard 

at 30 C.F.R. § 56.14-1 charging that the "motor drive coupling (approximately 

.4 inches in diameter) for the north shale feeder located on the addative floor 

of the mill was not provided with a guardo 11 Again the allegations in the 

citation are undisputed. Moreover, there is no dispute that the exposed 

coupling at issue was located directly adjacent to a belt crossover and about 

3 and 1/2 feet off the floor. The evidence shows that an individual would 

have to fall to the east side and then extend his arm in order to come into 

contact with the exposed coupling. The mill helper customarily used the 

crossover only three times a day. 

Within this framework of evidence, I do not find the violation to be 

"significant and substantial." The possibility of injury was indeed quite 

remote because of the infrequent use of the catwalk~ the distance from the 

catwalk to the exposed coupling, and the combination of unusual circumstances 

required for exposure to occur. 

Citation No. 207688 This citation alleges a violation of the standard 

at 30 C.F.R. § 56.14-6 charging that "the guard provided for the 12-inch 

diameter Torus coupling on the slurry pump located in the mill building 

slurry pumphouse was not in place while the machinery was in operation." The 

allegations in this citation are not disputed. ,The slurry pump room was 

14 feet by 25 feet in size. The exposed area of the coupling was approximately 12 inches square and was located about 3 feet from the ground. The 

mill helper was the only employee even working in the vicinity of the exposed 

part and his exposure was limited to a visual examination made some distance 

from the exposed part only once or twice a shift. Under the circumstances, 

I do not find that the violation was "significant and substantial." The 

possibility of exposure of employees to the hazard was extremely limited. 

Injuries were therefore highly unlikely. 

Citation No. 207689 This citation alleges a violation of the mandatory 

standard at 30 C.F.R. § 56.14-1 charging that "there was no guard provided 

for either of the two operating sprocket drive motor couplings atop the, dust 

bucket elevator." The allegations in the citation are not disputed. The 

couplings were located about 10 inches from a ladder and an employee was 

exposed only while greasing the dust bucket. Both couplings were smooth and 

rotated at approximately 400 revolutions per minute. Even though exposure 

to the hazard was limited to one person--an oiler who climed the ladder only 

350 
once a week--! find that the close proximity of the hazard to that worker 

made the possib,ility of injury likely. Under the circumstances, I am convinced that injuries would have been reasonably likely to occur and that such 

injury from clothing, tools or a limb contacting the moving couplings could 

be reasonably serious. Accordingly, the violation is "significant and 

substantial." 

Amount of Penalty 

In light of the above findings and the stipulations agreed to by the 

parties and considering all the criteria under section llO(i) of the Actj 

I find that the following penalties are appropriate: 

Citation No. 

205397 

205399 

205400 (vacated) 

207687 

207688 

206226 

207689 

206227 

206228 

ORDER 

Amount of Penalty 

to be Paid 

$150 

145 

92 

92 

200 

92 

92 

122 

Atlantic Cement Company, Inc., is ORDERED 

within 30 days of the date of this decision. 

civil penalties of $985 

Distribution: 

Jithender Rao, Esq., Office of the Sol1 itor, U.S. epartment of Labor, 

1515 Broadway, Room 3555, New York, NY 10036 (Certified Mail) 

Richard K. Muser, Esq., Clifton, Budd, Burke & DeMaria, 420 Lexington 

Avenue, New York, NY 10170 (Certified Mail) 

351 
FEDERAL MINE SAFETY AND HEALTH REVIEW C'::>MMISSION 

333 W_ COLfAX P.VU<UE, SUITE 400 

DENVER, COLQR,\DO 8020-1 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

TEXAS INDUSTRIES, INCORPORATED, 

Respondent. 

·---

Appearances: 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

FEB f 21982 

CIVIL PENALTY PROCEEDING 

DOCKET NO. CENT 79-60-M 

A/C No. 41-01849-05002 F 

MINE: Beckett Road Pit and 

Plant No. S 30 

Robert A. Fitz, Esq., ()ff ice of James E. White, Regional Solicitor, 

United States Department of Labor, Dallas, Texas 

For the Petitioner 

W. Kyle Gooch, Esq., Smith, Smith, Dunlap and Canterbury, 

Dallas, Texas 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

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

Administration, (MSHA), charges respondent, Texas Industries, Inc., (TXI), 

with a viola~ion of Title 30: Code of Federal Regulations, Section 56. 

9-5,_!_/ a safety regulation adopted under the Federal Mine·Safety and 

Health Act, 30 U.S.C. 801 ~seq. Respondent denies that a violation 

occurred. 

After notice to the parties a hearing on the merits was held rn 

Dallas, Texas. 

1/ The cited regulation provides as follows: 

56.9-5 Mandatory. Operators shall be certain, by signal or other 

means, that all persons are clear before starting or moving equipment. 

352 
ISSUES 

The issues are whether TXI violated the regulation. Further, if ;:i 

Violation OCCUrred, what penalty, if any, is appropriatP, 

SUMMARY OF THE EV I DENCE 

Donald Clary, in his 18th year, died on the seventh day of his 

employment with Texas Industries, Inc. 

On August 8, 1978, Clary and plant operator Bailey, the only employees 

in the vicinity, were working at the log washer at the Beckett plant (Tr. 

9, 40, 78, 79, 96, P2, P7, P9). 

As material is dredged from the river it comes into the plant and 1s 

split at a scalping screen into waste, sand, and rock fractions. A 36 inch 

McLanahan log washer then removes the clays, silts, and debris. Twin 

counter paddle shafts, geared to 29 r.p.m., rotate in the log roller. A 

vertical box screen retains larger sized sol ids. The screen itself can 

become clogged and this in turn causes a water overflow. The screen can be 

cleaned by hammering on it on the down stream side of the log washer. The 

cleaning procedure does not place a person in a hazardous position (P3, 

P 5, P 11 , R5 , R7 , R8) . 

On the day of the accident operator Bailey told Clary he wanted to 

clean the screen (Tr. 25). After lunch, about 2:15 p.m., Bailey shut down 

the machinery. He then show~d Clary how to clean the screen (Tr. 26). 

Bailey then told Clary "I am going back [to the control room] to turn the 

fedder belt and log washer back on" (Exhibit R9). As he left Railey saw 

Clary beating on the screen as he stood on the catwalk (Tr. 36, R9). 

The control room portion of this plant is a level ahove the log washer 

(Tr. 11, 21, Rl, R3). It takes about half a minute, or 25 to 30 seconds, 

for a worker to go from the catwalk to the control room switches at the 

upper level (Tr. 22). At the point where the controls are located Railey 

could not see Clary (Tr. 32, 69, P-7, P-9, Rl, R3,. R6). 

Bailey 

see Clary. 

immediately 

turned on the machinery. He then walked over to where he could 

He saw him. His body was turning in the log washer. He 

turned off the power. There was no hope of life (R9). 

Clary, feet first into the paddles, was three feet from where he had 

been cleaning the screen (Tr. 88) .. 

TI1ere was no reason for Clary to be above the tub or the catwalk (Tr. 

87, 88, 96). Clary, when hammering on the screen, was standing on the 

catwalk. There is no d.irect evidence of the height that the steel side of 

the log washer extends above the catwalk but I estimate the distance at 

353 
approximately four feet. To reach the paddles where he w~is found Clary had 

to scale that barrier (P2, R8). 

An MSHA inspector indiuited it is routine in the industry to use " 

start up signal with a time int~rval before activating machinery (Tr. 44). 

TXl' s pol icy is to sound the ;:ilarm signal be fore the morning start up and 

after a lockout. No lockout procedure occurred here (Tr. 51-52, 94). 

DISCUSSION 

The evidence here establishes that TXI violated the regulation. It's 

obligatio~ under 30 C.F.R. 56.9-5 is to he certain that all persons are 

clear before starting equipment. The means suggested by the standard are a 

"signal or other means." No signal was given here and the alternative, a 

broad umbrella, was neither effective nor could Bailey be "certain" that 

Clary was clear. I recognize that the death of Clary in and of itself does 

not, by its mere occurrence, prove a violation of the regulation. Lone 

Star Industries, Inc. 3 FMSHRC 2526 (1981). 

Plant operator Railey did not testify and his evidence is garnered 

from his oral and written statements made to TXI ;:ind MSl{i\, The direct 

evidence: "when he started beating the screen off, I told him I was going 

back to turn the feeder belt and log wash hack on, I left him there 

beating the screen ... 11 neating on a screen can often drown out a 

speaker 1 s words. Did Clary ever acknowledge that he heard Bailey 1 s 

statement? If he heard the statement what did it mean to him? Would 

Bailey turn on the machinery 1 immediately' or after some interval. Or, as 

this was only his ~eventh day on the job, would Clary anticipate a start up 

alarm as at the start of the morning shift or after a lock out. Did 

Clary think there had been a lock out of the e~uipment? ln fact, Clary had 

to be taught .how to heat the screen to clear the clogged material. This 

could well indicate the machinery had not been previously shut down during 

Clary's prior six days. This would really leave Clary as an unknowing 

pirticipant. In short, I cannot be certain that Bailey knew Clary was to 

be clear of the equipment. Certainly is an exactitude demanded by the 

regulation. 

There is credible evidence in this case that the TXI warning horn, 

which could be activated at the control panel, was "barely.audible," (Tr. 

28). In its post trial brief TXI argues that an audible warning device is 

not relevent because TXI relied on" other means." The "other means" 

consisted of personal notification to be certain that Clary was clear 

before the operator started the equipment. 1 agree the defense here does 

not rely on a signal but relies on personal notification. However, such 

notification must be as effective as an audible signal. For the reasons 

previously stated I have found it was not. 

No eye witnesses saw Clary die. TXl claims it is highly probable that 

his death resulted after the log washer was started when Cl.ary took a short 

354 
cut across an I-Beam an<l fell into the log •.vaf;her on his t.1;iy to the control 

station. I, too, can specul.at":!. It appears to me that Clary, essenti;illy 

inexperienced on the job, reached among the log washr~r pa(1rlles to retri,:ve 

a piece of wire screening (See Exhibit P-5). As l1e did t\1e machine stiJrted 

and pulled him in. As he tried to extricate hi_mself his feet became entangled. 

I recognize that it is uncontroverted that Clary received a safety 

booklet when he started to work with TXI (RlO). He further received 24 

hours of safety instructions and he was specifically tolrl not to go above 

the catwalk (Tr. 96). However, the gravamen of this case centers on the 

failure of the plant operator to comply with the regulation before starting 

the machinery. Any contributory negligence by Clary is not determinative 

of whether TXI violated the regulcition. 

For the above reasons l conclude that TXI violat~d 30 C.F.R. 56.9-5. 

CIVIL PENALTY 

Section llO(i) of the Act [30 U.S.C. 820(i)J provides as follows: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Cormnission sh,:tll consider the op•~rator's history 

of previous viol at ions, the Appropriateness of such penalty to 

the size of the business of the operator charge<i, whether the 

operator was .negligent,· the effect on the opercitnr's ahility 

to continue in business, the gravity of the violation, and the 

demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

ln connect ion with the stat11tory criteria 1 note that: TXI operates 122 

plants in seven states. At the Beckett Road Pit and Plant it mines sand 

and gravel from the river bottom by dragline (Tr. 49, 62, P-11). All TX1 

employees worked approximately 855,879 man hours in 1978. The emp 

at the Beckett Road Pit and Plant worked 27,166 man hours. (Stipulation) 

TXl is accordingly a large operator. 

TX.I has no prior adverse history but l find TXI was highly negligent 

in that it did not use an alarm AS is the indtJstry practice but instead 

re 1 ied on the more hazardous approach of "persona 1 not if ic at ion. 11 The~ 

gravity was apparent resulting in the death of worker Clary. After the 

citation was issued TXl complied by installing :m m1di.ble alarm. The alarm 

could be heard above the operating equipment (Tr. 57). 

' ()n balance, and considering the stat11te, lam unwilling to disturb the 

proposed civil penalty of $3,000. 

355 
Based on the foregoing findings of fact and conclusions of law I enter 

the following 

ORDER 

Citation 156111 and proposed civil penalty are affirmed. 

Distribution: 

Robert A. Fitz, Esq. 

Office of the Solicitor 

United States Department of Lahor 

5 Griffin Square, Suite 501 

Dallas, Texas 75202 

W. Kyle Gooch, Esq. 

Smith, Smith, Dunlap, Canterbury 

4050 First National nank Building 

Dallas, Texas 75202 

356 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Docket No: LAKE 81-87•M 

A.O. No: 21-00089-05002 

Hader Quarry and Mill 

VALLEY LIMESTONE COMPANY, 

Respondent 

DECISION 

Appearances: Rafael Alvarez, Esq., Offic~ of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 

Chicago, Illinois 60604, for Petitioner 

By: 

Lloyd H. Johnson, Sr. 9 Valley Limestone Company, 

Box 127, Zumbrota, Minnesota 55992 9 appeared pro se 

Charles C. Moore, Jr., Administrative Law Judge 

The above-captioned civil penalty case was tried before Judge John 

Cook on August 25, 1981 in Minneapolis, Minnesota. Judge Cook has since 

transferred from the Federal Mine Safety and Health Review Commission 

and the case has been assigned to me. The parties were advised of 

Judge Cook's transfer on January 19, 1982. They have not suggested any 

rehearing or further evidentiary proceeding. I hold and by their actions, 

that the parties have waived any right to now object to a decision based 

on the record made before Judge Cook. 

On August 29, 1978 Citation No: 289667 was issued to Valley Limestone 

Company, a trade name used by Lloyd H. Johnston, alleging a violation of 

36 CFR. 56.9-37. See Exhibit M5. The citation charges: 

The Chevrolet 6400 series haul truck was left unattended 

without setting the brakes at the grizzly dump site and at pit 

while being loaded. 

The standard in question requires that "mobile equipment shall not 

be left unattended unless the brakes are set ~ •• " If the statements 

set forth in the citation are true and if respondent is subject to the 

coverage of the Federal Mine Safety and Health Act of 1977~ then a 

violation has occurred. 

Respondent quarrys limestone crushes some of it into gravel for use 

as surfacing material and some into powdery limestone for use on farmlands. 

It sells this limestone powder and gravel within the State of Minnesota 

and only to customers near its quarry. Some of the limestone is used on 

35'7 
Mr. Johnson's wife's farms. Respondent moved that the case be dismissed 

for lack of coverage and Judge Cook took the motion under advisement. 

I had similar motions before me in Secretary of Labor vs. Capitol 

Aggregates, Inc., Docket No: DENV 79-163-PM and DENV 79-240-PM. 2 FMSHRC 

869, 870 (1980). That case involves a cement plant but insofar as 

coverage of the Act is concerned it is quite similar to the instant 

case. As to the motions to dismiss filed because of alleged lack of 

coverage in Capitol Aggregates, Inc., I stated: 

Both motions were denied pricipally on the rationale of Wickard vs. 

Filburn, 317 U.S. 111 (1942). The case involved home grown wheat 

which was used for the grower's own consumption and the court said 

at page 91 "but if we assume that it is never marketed, it supplies 

a need of the man who grew it which would otherwise be reflected by 

purchases in the open market. Home grown wheat in this sense 

competes with wheat in commerce." Subsequent cases have held that 

Respondentvs activities need not be considered alone in order to 

measure their effect on commerce but may be combined with others 

engaged in similar activities. 

Even activity that is purely intrastate in character may 

be regulated by Congress, where the activity, combined with 

like conduct by others similarly situated, affects commerce 

among the States or with foreign nations. See Heart of Atlanta 

Motel, Inc. v. U.S. 379 241, 255 (1964); WfCkard v. Filburn, 

317 U.S.111, 127-128 (1942). [Fry v. U.S., 421 U.S. 542 at 547 

(1974).J 

For the reasons set forth above, I hold that Respondent's operation 

is covered by the Mine Safety and Health Act. 

When Inspector Tarro came to the quarry on August 29, 1978, he 

observed two trucks and a front-end loader engaged in transporting the 

limestone to the crusher. The driver would take a load of limestone to 

the crusher in one truck, then he would return and leave that empty 

truck to be loaded while he drove the other truck to the crusher. When 

the inspector saw the dr~ver leave the truck subject to the citation 

herein to be loaded, and get in the other truck and drive away, he saw 

the first truck roll about 50 feet just before the loader dumped any 

limestone in. When he questioned the front end loader operator and 

examined the truck he found that there was no handbrake and that the 

reason the truck had not been left in gear with the motor off, was that 

it couldn't be started without being pushed. It was constantly left 

running. While Respondent asserts that the truck did not roll 50 or 60 

feet, maybe only a few feet, he does not deny that the truck was left 

idling with no brakes set. The violation clearly occurred. 

358 
When the inspector returned two weeks later and found that the 

hand-brake had not been repaired (there was not even a handle to set the 

brakes) he issued a 104(b) order. His reasoning was that the violation 

had not been abated and there was no reason for an extension of time. 

While that order is not before me for review, the propriety of its 

issuance has a bearing on the good faith effort to abate the violation. 

If the charge had been made that the truck did not have adequate brakes, 

the order would be clearly justified. Mere failure to use the equipment 

would not constitute abatement. But the charge here was leaving the 

truck unattended without setting the brakes and ordinarily when a yiolation 

is caused by some affirmative act on the part of a miner, abatement is 

accomplished by instructing all miners not to do whatever it was that 

the offending miner did. Such an instruction would have been of no 

value in the instant case because there were no brakes to be set. Good 

faith compliance would have been to repair the brakes immediately and 

instruct the driver never to leave the truck unattended without setting 

the brakes. Respondent did not do that in this case. While Mr. Johnson 

testified that he did not use the truck he was vague as to the time 

after which he did not use it. He did not seem to be able to distinguish 

between the original citation and the order that was issued two weeks 

later. After one of those times he did not use the truck, but the truck 

was in the quarry when the order was issued. Under the circumstances I 

do not find good faith abatement even though I am not sure the order was 

technically proper. 

The gravity of this violation is very high. Even if there were no 

mining laws, common sense would dictate that you do not leave a vehicle 

idling without some means of preventing it from rolling, either blocking 

it or braking it, or shutting off the engine and putting it in gear. At 

this very mine, in 1973, a fatality was caused by a truck failing to 

have an emergency brake, and it may have been this same truck. This 

prior fatal accident does not go to the Respondent's history of violations 

because the Act under which this proceeding was brought was not in 

effect at that time but the evidence does show that Respondent was well 

aware of the hazards involved in a failure to have emergency brakes. 

If the brakes had been working on the truck and the truck driver 

had failed to set them I would impute the negligence of the driver to 

the operator in considering the amount of the penalty to be assessed. 

Here, however, the truck driver did not have a brake to set and because 

of the condition of the truck he could not stop the engine and leave it 

parked in gear. I consider it gross negligence for Respondent to allow 

this piece of equipment in this condition to be used in mine operations. 

While Mr. Johnston complains that he was being harrassed by the 

inspector, I think the inspector was being lenient in giving him two 

weeks to abate a violation of this type. Another inspector might have 

issued an innninent danger order and requ~red that the quarry be shut 

down until the truck was either repaired or taken out of service. 

359 
There is no history of prior violations and the operation is not 

large, but the g:oss negligence and the gravity involved in this violation 

justify a substantial penalty. I realize that when a mine operator 

challenges a citation in an administrative proceeding, and ends up being 

assessed a penalty higher than that determined by the assessment officer, 

be feels that he is being punished for having forced the government to 

go to trial in the matter. That is a false impression, however. The 

fact is that after examining the evidence in a case, the judge often has 

much more information concerning the violation than was available to the 

assessment officer at the assessment stage of the proceedings. The 

evidence in the instant case and the circumstances surrounding the 

violation convinces me that a $700 penalty would be appropriate. 

Respondent is therefore ordered to pay to MSHA, within 30 days, a 

civil penalty in the amount of $700. 

Entered~ 

Distribution: By Certified Mail 

Charles C. Moore, Jr., 

Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, Chicago, Illinois 60604 

Mr. Lloyd H. Johnson, Sr., Valley Limestone Company, Box 127 

Zumbrota, Minnesota 55992 

360 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

fEB 11 \982. 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. PENN 81-46 

Petitioner A.c. No. 36-06018-03030 

v. 

Emilie No. 4 Mine 

KEYSTONE COAL MINING CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

James P. Kilcoyne, Jr. 9 Esq.~ Office of the Solicitorp U.S. 

Department of Labor~ for Petitioner; 

Bartley R. Simeral, Esq., Keystone Coal Mining Corporation~ 

Indiana, Pennsylvania. 

Judge Charles C. Moore, Jr. 

Respondent is charged with five separate violations (citations) of 

30 C.F.R. § 75.1103-4(a) which provides: "Automatic fire sensor and warning 

device systems shall provide identification of fire within each belt flight 

(each belt unit operated by a belt drive)." Respondent 9 s belt system consists of five flights designated as No. 1 Main, No. 1 North, No. 2 Conveyorj 

No. 3 North, and No. 1 Right. No. 1 Main is the most outby belt flight and 

the sensor on that flight is the one that Inspector Lawson and several other 

inspectors first tested when they conducted a blitz inspection on 

September 30, 1980. Inspector Lawson stayed in the lamphouse where the 

alarm and monitor were located while the other inspectors went underground 

to assist in the testing procedure. The remote locators are, in essence, 

variable resistors located in each of the drive units of the five belt 

flights. The remote indicators are connected with heat-sensing elements 

along their respective belt flights and if a heat-sensing element is activated, it has the effect of shorting out the system just inby the resistors 

of the remote indicator on that particular belt flight. When the remote 

indicator is thus shorted out, a belt rings and an electronic readout in.the 

lampshack on the surface shows a number that is supposed to indicate the' 

particular flight where the fire is located. The indicator in the lampshack 

does not read in ohms of resistance but is proportional thereto so that if 

you double the resistance in the system you would double the number showing 

on the read-out indicator. 

361 
When a remote lqcator is triggered, it has the effect of shutting 

everything inby that locator out of the system and the only resistance on 

the system is the total of the variable resistors located in the untrigger~9 

remote locators outby the one that has been shorted. The locator system 

works by totaling up these resistances. Each remote locator is affixed with 

a testing key or switch which shorts out the wires inby the resistors, thus 

having the same effect as if one of the heat sensors had shorted out the 

wires. 

The system was supposed to be adjusted so that if the test key on the 

remote locator for No. 1 Main was turned, the indication in the lamphouse 

should have been between 1 and 4. When it was turned during Mr. Lawson's 

test, it registered 18. The figures 18 does not correspond with any of the 

designed readouts for the five belts. The readout for No. 2 conveyor should 

be between 4 and 6, the readout for No. 3 North should be between 8 and 10~ 

the readout for No. 1 North should be between 10 and 12, and the readout for 

No. 1 Right should be between 12 and 14. A reading of 18 indicates that 

there is a fire but does not indicate where the fire is located. 

Inspector Lawson wrote Citation No. 842716 for the erroneous readout 

at No. 1 Main. He then tested No. 1 Right but the remote locator test key 

was inoperable at that location. The remote locator was replaced and in 

'its uncalibrated state gave a reading of 9.2. This reading would have 

been impossible if the remote locator in No. 1 Main was still reading 18. 

The resistances are additive and regardless of how this replaced remote 

locator was calibrated~ the readout in the lamphouse would have to be more 

than the resistance being created at No. 1 Maino The explanation is that 

one of Respondent's technicians was at the No. 1 Main locator trying to 

calibrate it for the correct reading of between 1 and 4 while the rest of 

the tests were being made, or at least while some of them were being made 

because some of the tests were made after No. 1 remote locator had been 

properly calibrated. Citation No. 842717 was written because of the faulty 

test key switch. The section cited, however, does not requre a test key 

and the fact that a test key is not working does not keep the remote 

locator from working. (TR lOO)_sl 

The next test was made at No. 3 North and the indication there was 10.6 

which would indicate a fire in No. 1 North rather than No. 3 North. 

Citation No. 8428718 was written for this condition. 

The next test was made on the No. 2 Conveyor remote locator and the 

reading was 1.8 which would indicate a fire on the No. 1 Main belt. Citation 

No. 842719 was written for this condition. Citation No. 842720 was written 

because the indication on the remote locator in No. 1 North was 18.9 which, 

as in the case with the original readout on the No. 1 Main remote locator, 

would indicate a fire but would not indicate its location within the belt 

system. 

The first citation was issued at 8:30 a.m., the second at 8:45. the 

third at 9 o'clock, the fourth at 9:15, and the fifth at 9:30. Inspector 

'!:_/ The Inspector's opinion to the contrary is rejected. 

362 
Seibert testified that he was present when the test was made in the No. 1 

Main remote locator and that immediately after the test one of Respondent's 

employees started readjusting the resistance controls in an attempt to bring 

the readout to its proper value. He stayed at that position until the proper 

calibration had been made and then went to the No. 2 Conveyor where the 

fourth citation was issued, No. 842719, at 9:15. There is a discrepancy in 

the times because the citation for No. 1 Main was supposedly abated as soon 

as it came into adjustment and that was not until 9:30. Inspector Seibert 

could not have remained in No. 1 Main until 9:30 and have also been in No. 2 

Conveyor at 9:15 even though the two remote locators for these flights are 

fairly close. On Respondent's Exhibit No. 1, the arrows depict the positions 

of the remote locators and the orange lines show the five flights of belts 

involved in this case. 

Respondent's Exhibit No. 5 is an MSHA policy statement which to me 

indicates that the policy is to issue only one citation on this system if it 

is out of adjustment. Both inspectors, however, interpreted the policy 

statement as requiring a citation for each flight that was out of adjustmento 

I see no need to rule on these contentions because I am convinced that once 

the technician started readjusting the resistance on the remote indicator of 

No. 1 Main, it invalidated all of the readings on the other remote locatorsa 

It is a system of adding resistances and all of the remote locators inby 

No. 1 Main were affected by the adjustment of the locator in No. 1 Main. It 

is not clear to what extent the other locators were adjusted between the 

time of the first citation at 8:30 and the time of the last at 9~30 But it 

is clear~ for example, that the remote locator on Noo 1 Right~ if tested 

should indicate its own resistance plus the resistance of the remote locator 

on No. 2 Conveyor and the remote locator on No. 1 Main. If there is a 

recalibration of any remote locator outby the one being tested, it destroys 

the validity of the test. 

I therefore find that the citation issued for the No. 1 Main remote 

locator, Citation No. 842716 was valid but that all of the others were 

invalidated when the tests were improperly conducted. The four citations 

indicated are thus vacated. 

I find the violation at No. 1 Main did occur. The inspector testified 

that the negligence was of a low order and there is no dispute as to the 

other criteria involved. A penalty of $200 is assessed. 

ORDER 

It is therefore ORDERED that Respondent pay to MSHA, within 30 days,, a 

civil penalty of $200. 

363 

~~;Jtt~f!.. Charles C. Moore, Jr. 

Administrative Law Judge 
Distribution: 

David Bush, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

Bartley R. Simeral, Esq., Keystone Coal Mining Corporation, 

655 Church Street, Indiana, PA 15701 (Certified Mail) 

364 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 FEB 171982 DENVER, COLORADO 802(14 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), on 

behalf of KENNETH E. BUSH, 

Complainant, 

v. 

UNION CARBIDE CORPORATION, 

Respondent. 

) 

) 

) COMPLAINT OP DISC~ARGE, 

} DISCRIMINATION, OR INTERFERENCE 

) 

) DOCKET NO. WEST 81-115-0M 

) 

) MD 80-152 

) 

) 

) 

) 

DECISION AND ORDER 

Appearances; 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Complainant 

John W. Whittlesey, Esq. 

Union Carbide Corporation 

Law Department 

27,0 Park Avenue 

New York, New York 10017 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

The Secretary, on behalf of Kenneth E. Bush, filed a complaint against 

the respondent alleging that on or about July 25, 1980, respondent discharged Bush contrary to Section 105(c}( i)Jj of the F'eder;:il Mine Safety 

and Health Act of 1977 (hereinafter the "Act") for exercising his· statutory 

rights under the Act. 

1/ Sect ion lOS(c )( 1) reads in pertinent part "No person shall discharge ... 

any miner ••. because such miner .•• has ..• made a complaint under or 

related to this Act, including~ complaint notifying the operator •.• of an 

alleged danger or safety or health violation in a •.. mine .... " 

365 
Respondent answered th11t Rush wris not "~ miner as ~fine<l in the Act, 

and that respondent discharged complainant bRcause of insubordination, 

refusal to carry out work a:Viignment, anr:I for making threatening and 

derogatory remarks and gestures toward the plnnt superintrn<lent. 

Additionally, respondent denies that there is jurisdiction of the Act 111 

these proceedings. 

At the commencement of the hearing, respondent moved to dismiss the 

proceedings on the fol lowin?; grounds: ( 1) that procedural rule 41 ];_/ 

requires that prior to the issuance of a discrimination complaint the 

Secretary must file a written determination of violations and that the 

complaint must be filed within 30 days of that determination. Since no 

such written determination wns served on the respondent, there was no 

jurisdiction to issue the complaint; and (2) that MSHA hris no jurisdiction 

over respondent's facility because it is not a "minf~ 11 within the meaning of 

the Act. 

FINDINGS OF FACT 

1. At all times relevent to these proceedings, respondent operated a 

facility for processing vanadium. The facility is hereinafter referred to 

as the "Rifle Plant". 

2. Vanadium is contained in an ore that is mined or extracted from 

the ground. After the vanadium ore is processed at another location, 

respondent's Rifle Plant receives the vanadium in a concentrated liquid 

solution shipped in by truck: 

3. At the Rifle Plant the concentrated liquid solution is made into 

several finished products, including modified vanadiwn oxide. 

4. For several years prior to July 1980, sulfuric acid arrived at the 

Rifle Plant by railroad tank car, and the acid was unload~~d from the railroad tank cars into storage tanks. In July, 1980, it he came necessary to 

change the procedure so as to off load sulfuric acid from tank cars into 

tank trucks and from tank trucks into storage tanks. It was also necessary 

to load the acid from storage tanks into tank trucks. 

5. After the railroad tank car arrives at the plant, the acid is 

removed by means of compressed air piped into the trink c!lrs which forces 

2/ Section 2700.41 When to file. 

(a) The Secretary. A c~mplaint of discharge, discrimination or 

interference shall be filed by the Secretary within 30 days after his 

written determination that a violation has occurred. 

366 
the acid into the trucks. The pipe from the rail car e1npt ies ;icid into a 

manhole on top of the tank truck. 

6. As the compressed air forces the nci<l into the truck, there is a 11 blow back" when the tank car empties all the acid into the truck, and the 

air is still being blown into the man hole on top of the truck. The "blow 

back" causes acid to spray out of the manhole. 

7. Complainant was a heavy duty auto mechanic employed for about five 

years as such by respondent at the rifle plant. As part of complainant's 

duties he was asked by a supervisor in July, 1980, to participate and learn 

the procedure for unloading sulfuric acid. 

8. The first sulfuric acid was loaded onto trucks on July 21, 1980. 

The complainant complained to a supervisor that there was a lack of valves 

in the procedure for unloading the acid, there were some leaks of acid, the 

air pressure regulator was working improperly, and that there was possible 

"blow back" of acid from the truck. 

9. On July 22, 1980, there were two leaks of acid in the line to the 

tank truck and both leaks were fixed. On the same date the acid "blow 

back" problem was rectified by leaving an amount of acid in the railroad 

tank car so that air pressure would not blow into the truck unless it was 

forcing acid into the manhole. This would prevent t 11e acid from blowing 

back on the workers, 

10. On July 22, 1980, complainant was to participate in "breaking in" 

or learning to unload the acid from trucks coming in, but he informed the 

mine maintenance foreman that he was not going to do it, that it was unsafe 

and it always had been, and, besides, it was not his job. 

11. On July 23, 1980, an employee of the respondent had received an 

"acid splash" while in the process of unloading acid. 

12. On July 23, 1980, at the office of complainant's supervisor, 

complainant was asked what the safety hazards were in regard to unloading 

acid. Complainant mentioned several problems and complainant's supervisor 

discussed each one as having been taken care of already. The supervisor 

then asked complainant to unload acid, but complainant refused stating that 

it was unsafe, and it was not his job. · Complainant .did not state as tb 

what was now unsafe in regard to unloadi.ng the acid. 

13. On July 24, 1980, complainant was again asked by his su~ervisor to 

continue "breaking in11 on the acid unloading work with another employee. 

Complainant said he would go to the area and observe, hut that he would not 

do anything further. The plant manager, who was standing nearby, then told 

complainant that complainant was suspended for failure to <lo his job. 

367 
Complainant than said that ac i.d lo<"Jd ing was not his job, .1nd i.t was unsnfe. 

The plant manag,er stated he would not discuss the safet·; m1tter with 

complainant and ordered him to leave. Confronting the pla:1t manager as 

complainant was leaving, complainant stated, "You mousey little bastard, I 

ought to break your fucking nnse." After other comments were exchanged, 

complainant left the property. 

14. Complainant received a letter on July 25, 1980, instructing him 

that his employment with respondent was terminated, because of insubordination, refusal to carry out work assignments, and for making 

threatening and derogatory remarks and gestures toward the plant 

superintendent. 

ISSUES 

1. Did the Commission lose jurisdiction of this case if the Secretary 

failed to file a written determination that a violation occurred and <lid 

not serve it on respondent within 30 days before the discrimination 

complaint was filed? 

2. Does the Act give the Commission jurisdiction over a plant that 

does nothing more than process vanadium which is received at the plant in a 

concentrated liquid solution form? 

3. Did respondent viol.1te Section 105(c)(J) of the [\ct when 

respondent terminated complai.'1ant's employment on July 25, 1980? 

DISCUSSION 

Respondent asserts that a condition precedent to the filing of a 

discrimination complaint by the Secretary is that a written determination 

that a violation occurred must be made by the Secretary. Rr;spondent 

assumes that since no such written determinnt ion was served on the· 

respondent, the condition precedent had not been followed nnd, therefore, 

there was no jurisdiction to issue the complaint. 

The respondent overlooks the fact that proceduri11 ruh~ 41 does not 

.state that the written determination must be served on the respondent. 

Indeed, the rule is silent as to what, if anything, is to he done with the 

written determination. ln any event, the requirement that the Secretary 

file the complaint within 30 days of the written determination is for the 

benefit of the miner on whose behalf the Secretary is to file a complaint. 

This provision in the rule acts to insure that the Secretary take prompt 

action in filing the complaint. Therefore, l find no r11erit in respondent's 

argument. 

368 
Respondent also asserts that the Act do<:~s not provide for jurisdiction 

over its Rifle Plant, because the operation cif the plant Eails to meet the 

definitio·n of a "mine". Respondent argues th:it the fo('.ility is merely a 

chemical processing plant and not a "coal or other mint:" :is ·defined in 

Section 3(h}(l) of the Act. 

Although the vanadium processed at the rifle plant arrives in a 

concentrated liquid solution which is shipped in by truck, ii: is undisputed 

that vanadium comes from ore which is mined or extracted from the ground. 

It is also undisputed that vanadium is a mineral. Sect ion 3(h)( 1) states 

in pertinent part as follows: 

"Coal or other mine" means • , • ( C) . • . fac i 1 it ies, 

equipment, machines, tools, or other. property ... 

used in .•. the work of preparing ... nther minerals 

The definition is broad enough to include the operations of the Rifle 

Plant. Vanadium is a mineral and the fac i J. it ies at the plant are used in 

the work of preparing the mineral into several saleable products including 

vanadium oxide. Accordingly, l find that the rifle plant is a "mine" 

according to the definition contained in the Act, and thnt the Commission 

has jurisdiction over the parties and subject matter of these proceedings. 

The principles to be followed in deci<l the remaining issues in this 

case are tho~e set forth in two leading cases: Secretary of Labor, on 

behalf of David Pasula v. Consolidation Coal 2 F~SHRC 2786 (1980) 

retary o y a stration (MSHA), ex 

rel. Thomas Robinette v. United Castle Coal Company, 3 FMSHRC 803 (1981). 

Thus, the fol lowing quest ions must be answered in order to determine 

whether or not .the respondent violated section 105(c)( 1) of the Act when it 

fired the complainant. 

1. Did complainant engaged in protected activity? 

2. If so, was the firing of the complainant motivated Ln any part by 

the protected activity? 

3. If complainant was engaged in protected activity and respondent 

fired complainant partially because of that protected activity, 

was respondent also motivated to fire complainant because of any 

unprotected activity of the complainant? 

4. Would respondent have fired complainant in any event because of 

unprotected activity? 

5. In refusing to unloa<l acid, did complainant have a good faith 

reasonable belief in a h117.ardous condition and, if so, was 

complainant's hont~~;t perception .1 rensonable ont> ttn<ler the 

circumstances of this c::rne? 

369 
The complainant did engage in protected activity n that he complained 

that the new procedure for unloading acid was unsafe. Tile complaint was 

made to com~lalnant's supervisor on several occasions, qnd including July 

24i 1980, the day complainant was suspended. A safety complaint involving 

a condition adjudged by the miner to be nnsafo constitutes conduct 

protected by the Act. 

Since complainant did en~age in protected activity, the next question 

is whether the firing of complainant was motivated in part by the protected 

activity. In order to answer this question, it is only necessary to restate the wording contained in the letter dated July 25, 1980, from 

respondent directed to complRinant informing him that he was terminated 

effective inuuediately for the "totality of your conduct on Thursday July 

24, 1980, including insubordination, refusal to carry out work assignments 

and for making threatening And derogatory remarks and gestllres toward me 

[plant superintendent]." 

The letter states that part of the reason for complainant's 

termination was he refusal to carry out work assignments. Tile work 

assignments in question was the assignment to continue "bre11king in" on the 

work of unloading sulfuric acid. Complainm1t was referring to this 

. assignment when he stated th.it the work wa'; unsafe And not his job. l 

conclude that the firing of complainant was motivated in part by 

compl11inAnt's protected activity. 

Respondent was also motivated to fire complairrnnt because of complainant's unprotected activfty. Again, referring to respondentis letter 

to complain.ant dated July 25, 1980, respondent cites insubordination, and 

making threatening and derogatory remarks and jestures· tow1Jrcl the plant 

superi~tendent as additional reasons for complainant's termination of 

employment. These activities were not protected by the Act and according 

to respondent's letter, they were part of the reason for complainant's 

termination. 

The evidence does not support a cnncl>.1sion that r<~srondent would hnve 

fired complainant in any event because of unprotected nctivity. Respondent 

argues that complainant would only have been suspended for refusing to 

unload acid but was fired only for reasons unprotected by the Act, namely, 

for his abusive treatment of .the plant superintendent. However, both 

respondent's letter of July 25, 1980, and the testimony of the plant 

superintendent contradict that assertion. The letter mentions complainant's refusal to carry nut work assignment as a Rround for 

termination. The plant superintendent against ~iom complainant made the 

abusive remarks testified that "we wi 11 not do anything in the heat of an 

incident other than to suspend." 

ln refusing to continue to "break in" on the 'llOrk of unloading the 

acid on the basis that it was unsafe, complainant's percention was not a 

reasonable one under the circumstances of this case. In i1~dition to 

stating to his supervisors several times that the work was 11nsafe, complainant also stated that" it was not his iob to do it. Complainant 1 s job 

classification was heavy dutv auto mechanic, and the evidence shows that it 

clearly was his duty to work on unload in:; acid. 

370 
When safety complaints were made by complainant in n·gard to the 1ww 

procedures for unloading acid, the evidence shows that those complaints had 

been acted upon by the respondent. The problems including "blow back" of 

acid while loa9ing the trucks, and the problem of acid le:1ks while dis 

connecting lines had been rectified. 

After the solution of all the complaints had been explained to 

complainant in his supervisor's office on July 24, 1980, complainant was 

again asked to break in on the work of unloading the acid. Complainant 

again refused, stating that it was unsafe, but when he was asked in what 

way it was unsafe, complainant offerred no explanation. Complainant also 

stated, as he had before, that "besides, its not my job." The only conclusion I can come to is that complainant would not unload acid under any 

circumstances. The evidence left no doubt that unloading ncid is a 

dangerous job, but when all precautions have been taken, it does not mean 

that an employee may safely refuse to do the work under the protect ion of 

the Act. 

Under the circumstances of this case complainant's refusal to work in 

unloading acid cannot be considered reasonable. 

CONCLUSION OF LAW 

Complainant has failed to prove by preponderance of the evidence that 

respondent violated section lOS(c)(l) of the Act whPn it discharged complainant on July 25, 1980. 

ORDER 

The complaint is dismissed. 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

, Jon D. Boltz / ·) 

~Administrative La~Judge 

United States Department of L;ihor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

John W. Whittlesey, Esq. 

Union Carbide Corporation, Law Department 

270 Park Avenue 

New York, New York 10017 

371 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND ) 

z 2 fEB 1962. 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING 

) 

Petitioner, ) DOCKET NO. WEST 79-405 

) 

v. ) MSHA CASE NO. 05-00303-03005 

) 

THE PITTSBURGH & MIDWAY COAL ) MINE: Edna Strip 

COMPANY, ) 

Respondent. ) 

Appearances: 

Katherine Vigil, Esq., Office of Henry C, Mahlman, Associate 

Regional Solicitor, United States Department of Labor, 

Denver, Colorado 

For the Petitioner 

Terrance M. Cullen, Esq. 

Denver, Colorado 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

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

Administration, (MSHA), charges that respondent, The Pittsburgh and Midway 

Coal Mining Co., (P & M), violated Title 30, Code of Federal Regulations 

§ 77 .1110, JJ a regulation adopted under the authority of the Federal 

Mine Safety and Health Act, 30 U.S.C. 801 ~seq. 

1/ The cited standard provides as follows: 

77. 1110 Examination and maintenance of firefighting equipment. 

Firefighting equipment shall be continuously maintained in a usable and 

operative condition. Fire extinguishers shall be examined at least once 

every 6 months and the date of such examination shall be recorded on a 

permanent tag attached to the extinguisher. 

372 
ISSUES 

The issues. are whether P & M violated the regulation. If a violation 

occurred, what penalty, if any, is -appropriate. 

STIPULATED FACTS 

The parties waived a hearing and filed the following written 

stipulation: 

1. Respondent operates a surface coal mine at Oak Creek, Colorado, 

called the Edna Strip Mine; 

2. The operation of the Edna Strip Mine affects commerce and is thus 

subject to the provisions of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et. seq., (the "1977 Act"). 

3. That this proceeding is properly before the Honorable John J. 

Morris. 

4. An authorized representative of the Secretary of Labor conducted 

an inspection of the Edna Strip Mine on June 12, 1979, in order to 

determine respondent's compliance with the 1977 Act and valid regulations 

promulgated by the Secretary of Labor pursuant to the 1977 Act. 

5. As part of that inspection, the authorized representative of the 

Secretary discovered a damaged fire extinguisher on an explosives truck of 

the respondent. This fire extinguisher was inoperative on the day of the 

inspection because of a damaged release lever. As a result, the authorized representative of the Secretary of Labor issued Citation No. 791622 to 

the respondent, which citation alleges that respondent's damaged fire 

extinguisher constitutes a violation of 30 C.F.R. § 77.1110 by the 

respondent. The respondent does not dispute the existence of an inoperative fire extinguisher on the explosives truck. 

6. The authorized representative of the Secretary did not allege that 

respondent had violated 30 C.F.R. § 77.1109 despite the presence of the 

inoperative fire extinguisher on the respondent's explosives truck. 

7. On Ju.ne 12, -1979, there were two operative type ABC fire extinguishers with a combined rated extinguishing capacity of 15 BC on the 

cited vehicle, one 10 BC and one 5 BC. Thus, respondent states it was in 

compliance with 30 C.F.R. § 77.1109(f) on the day Citation No. 791622 was 

issued. 

8. The damage to the inoperative fire exting1iisher for which Citation 

No. 791622 was issued was not obvious during the daily inspections of the 

cited vehicle. In addition, the permanent tag attached to the cited fire 

extinguisher indicated that it had been completely examined by the 

respondent ~ithin the six months preceding June 12, 1979. 

373 
DISCUSSION 

The stipulated facts clearly support.the conclusion that P & M 

violated 30 c:F.R. § 77.1110. The regulation provides that fire fighting 

equipment sha.11 be usable and operative. A fire extinguisher on the 

explosives truck on the day of this inspection was inoperative and 

consequently unusable. The extinguisher had a broken release lever. 

P &. M's defense evolves in thi~ fashion: Section 77.1110 states that 

"firefight;ing equipment shall be continuously maintained .•. ". 30 C.F.R. 

1109( f) 2/ relating to the quantity and location of fire fighting 

equipment states that vehicles shall be equipped in accordance with the 

National Fire Protection Association Handbook, 12th Edition 1962. The 

parties and their post trial briefs agree that P & M was in compliance with 

30 C.F.R. § 77.1109(f) on the day the citation was issued. 

I am not persuaded by P & M's argument. Section 77.1110 in effect 

states th~t [all] firefighting equipment shall be continuously maintained 

in a usable and operative condition. Section 77.1109(£) establishes the 

minimum quantity of such fire fighting equipment, If P & M places a 

quantity in excess of the minimum such fire extinguishers must nevertheless 

be usable and operative. This view necessarily conflicts with P & M's 

contention that a violation cannot be based on the existence of an 

inoperative fire extinguisher where the explosives truck also has operative 

fire equipment meeting or exceeding the requirement of 30 C.F,R, § 77,-

1109(f), 

I agree with ·P & M's view tha~ it need only meet the minimum requirements of two fire extinguisher required by 30 C.F.R. 77.1109(£); however, 

having undertaken to provide more equipment, it must be usable and 

operative. 

P & M states the Secretary's view is unreasonable because under his 

construction a fire extinguisher which is awaiting or being repaired could 

be in violation of the regulation. I disagree. A fire extinguisher 

awaiting repair seems hardly by ariy stretch of the imagination to be ''fire 

fighting" equipment. In any event P & M has not presented those facts for 

adjudication. 

2/ The standard, 30 C.F.R. 1109(f), referred to by P & M reads as follows: 

(f) Vehicles transporting explosives and blasting agents shall be 

equipped with fire protect ion as recommended in Code 495, sect ion 

20, National Fire Protection Association Handbook, 12th Edition, 

1962. 

374 
P & M says .no dimunit ion of a miner 1 s protect ion could occur because 

two operative fire extinguishers were present. Such a factual situation 

would require the miner to guess which two of the three extinguishers were 

operative. There are no doubt situations in a fire when a miner would not 

have a wealth of time to make his choice. Further, P & M's argument leads 

me to extend it. Consider the hazards if only two extinguishers out of a · 

total of, say six extinguishers, were operative. The law is clear that ·if 

a conflict exists between an interpretation that promotes safety and an 

interpretation that would serve another purpose at the possible compromise 

of safety the first should be preferred U.M.W.A. v. Kleppe 562 F. 2d 1260, 

1265 (D.C. Cir. 1977). 

CIVIL PENALTY 

P & M, in the alternative, argues that the $114 proposed civil penalty 

is excessive. This view rests on the proposition that the fire 

extinguisher damage was not obvious and that the extinguisher had been 

examined within the six months preceding the date of the inspection, TI1is 

issue goes to P & M's negligence which I consider higher than usual 

inasmuch as this was an explosives truck. 

P & M further notes it immediately complied and abated the violation 

and it also reargues its view that no safety problem existed. Abatement is 

a factor favorable to P & M .. 

Section llO(i) 30 U.S.C. 820(i) sets forth the criteria for assess 

civil penalties and on the basis of the stipulated facts and the statute l 

deem that the proposed civil penalty of $114 is appropriate. 

Based on the foregoing facts and conclusions of law l enter the 

following: 

ORDER 

Citation 791622 and the proposed civil penalty therefor are affirmed. 

John J. Morris, 

' Administrattv~ Law Judge 

(/ 

375 
Distriqution: 

Katherine Vigil; Esq.· 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Str~et 

Denver, Colorado 80294 

Terrance M. Cullen, Esq. 

1720 South Bellaire Street 

Denver, Colorado 80222 

The Gulf Companies, 

The Pittsburg and Midway Coal Mining Company 

1720 South Bellaire Street 

Denver, Colorado 80222 

376 
FEDERAL MINE 'SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY ANO 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

FMC CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~~~~-

FMC CORPORATION, 

Contestant, 

v, 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

I 2 FEB 1982 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 81-80-M 

MSHA CASE NO. 48-00152-05030 

MINE: FMC 

CONTEST OF CITATION PROCEEDING 

DOCKET NO, WEST 80-397-RM 

Citation No. 337613 

MINE: FMC 

DEC IS AND ORDER 

Appearances: 

James R. Cato, Esq. 

Office of the Solicitor 

United ~tates Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64016 

Attorney for the Secretary 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall & McCarthy 

50 S. Main, Suite 1600 

Salt Lake City, Utah 84144 

Attorney for FMC Corporation 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

Pursuant to provisions of section lOS(d) of the Federal Mine Safety 

and Health Act of 1977 (hereinafter the "Act"), FMC Corporation 

(hereinafter "FMC") filed its Not ice of Contest of a cit at ion issued June 

13, 1980 which 1 alleged a violation of 30 C.F.R. 57.6-107. The regulation 

reads "Holes shall not be drilled where there is danger of intersecting a 

charged or misfired hole." FMC-alleges that the citation is invalid and 

void. 
Subsequent to the filing of the Notice of Contest, the Secretary filed 

a petition for assessment of a civil penalty for the violation alleged in 

the same citation. An order was entered consolidating the above cases for 

hearing. The parties agreed that I have jurisdiction over the parties and 

subject matter of these proceedings. 

FINDINGS OF FACT 

1. FMC is a large operator, and the imposition of a proposed civil 

penalty will not affect FMC's ability to continue in business. 

2. FMC's history of previous violations is not extraordinary with 

respect to other mines of s lar size. 

3. FMC demonstrated good faith in abating the alleged violation after 

notification. 

4. It is the procedure at FMC's undergr0und Trona Mine that the 

standard pattern used for drilling and blasting is to commence work on the 

right side of a room and then move to the left. Thus, the driller might 

drill the right crosscut of a room, then left to the face, and then move to 

the left side of the room and drill the left crosscut. 

5. After the driller completes his work in a room, the blaster 

(shot fire) follows and would prepare the right crosscut, the face, and 

then the left crosscut, in that order, for blasting. 

6, The blaster inserts the primer in the dri 11 holes and then the 

holes are tamped with explosive agent. The wiring of the holes then 

completed in order to be ready for firing. 

7. On June 10, 1980, Billy Smith, a blaster, was assigned to load and 

blast in rooms 4 and 5 after they were drilled ort the same date. 1n room 4 

only the face and left crosscut were to be drilled and blasted, but in room 

5, the right crosscut, face and left crosscut were to he prepared for 

blasting. . 

8. It took Smith approximately 20 to 30 minutes to prepare a face or 

crosscut for blasting, and it took approximately 10 to 20 minutes for the 

driller to drill a face or crosscut. 

9. After the driller completed drilling the face and left crosscut of 

room 4 he moved into room 5 and began drilling the right crosscut. On the 

opposite side of the right crosscut of room 5 was the left crosscut of room 

4. 

10. Immediately following the drillers withdrawal from room 4, Smith 

ent.ered the room and loaded the dri 11 holes at the face with primer, but 

instead of completing the operation by inserting the explosives, tamping or 

stermning the holes, and completing the wiring, he moved to the left crosscut of the same room and commenced loading it. 

378 
11. The driller was still drilling holes in the right crosscut of 

room 5 when Smith began loading the explosives in the left crosscut of room 

4. The drille.r and blaster were then working on the opposite sides of the 

same wall. 

12. While the driller was drilling the last hole in the right crosscut of room 5, the drill intersected a charged hole in the left crosscut of 

room 4, resulting in an explosion which fatally injured Smith. 

13. According to FMC drilling procedures, '' ... the drill operator 

must make sure of the location to be drilled to insure that he will not 

drill into places that are already tamped or being tamped with explosives." 

ISSUES 

Was there a violation of 30 C.F.R. 57.6-107 on June 10, 1980, and, if 

so, what is the appropriate penalty? 

DISCUSSION 

Smith failed to follow FMC procedures in that he did not finish 

preparing the face of room 4 for blasting before he moved on to the left 

crosscut. Smith's supervisor told him a short time before the accident to 

check in room 5 to make sure the driller was finished before he charged the 

left crosscut of room 4. It was also the duty of the driller to ensure 

that he would not drill into· places that were "already tamped or being 

tamped with explosives." These acts or omissions caused the drill to 

intersect the previously drilled and charged hole. 

FMC argues that there was no violation of the cited regulation because 

drilling was not occurring where there was a danger of intersecting a 

charged hole, and that the only reason a charged hole was intersected was 

due to the negligence of Smith .. In other words, the standard merely 

prohibits an operator from drilling in an area where there is a reason to 

know that there is a possibility or a danger of intersecting a charged 

hole. Since there was no reason for FMC or the driller to know that Smith 

would not be following the prescribed procedures, there was no reason to 

believe that the driller would intersect a charged hole. 

This argument overlooks the fact that the driller also did not comply 

with FMC' s own drill operator requirements. According to one rule, the 

drill operator must ensure that he will not drill into places that are 

already tamped or being tamped with explosives. The drill operator failed 

to do this. 

There was danger of intersecting a charged hole because both the 'drill 

operator and blaster were working in adjacent rooms. This condition alcne 

created the danger, and, thus required that steps be taken to ensure that 

the drill did not intersect a charged hole. The evidence shows that 

379 
neither the blaster nor the drill operator took the precautions required by 

FMC or both miners would have known exactly where the other was working, 

and the accident could have been avoided. Since there was danger of 

intersecting a·charged holei the hole should not have been drilled, 

according to the cited regulation. Thus, I find that there was a violation 

of 30 C.F.R. 57.6-107, as alleged. 

I find that the proximate cause of the violation was the failure of 

the blaster and the drill operator to follow supervisors instructions and 

FMC's specific work rules. However, the Act irnpos~s strict liability on 

the mine operator in cases where employee misconduct has caused a violation 

of a regulation. Citation Heldenfells Brothers, Inc., v. Marshall and 

FMSHRC, 2 MSHC 1107 (5th Cir. 1981). Lack of negligence on the part of FMC 

acts to mitigate the proposed civil penalty. 

CONCLUSION OF LAW 

The Secretary has proven by a preponderance of the evidence that FMC 

violated 30 C.F.R. 57.6-107, as alleged in Citation 337613. 

ORDER 

Citation No. 337613 is affirmed, the Notice of Contest is dismissed~ 

and FMC is ordered to pay a civil penalty in the sum of $500.00 within 30 

days of the date of this Decision, 

Distribution: 

James R. Cato, Esq. 

Office of the Solicitor 

,. ; ~, ' .. '· .1·71>:, I_.~~'--·=~---- JOO D. 'Bo tz, . > ) · 

rAdrninistrative f:.a{., Judge 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City~ Missouri 64106 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall & McCarthy 

50 S. Main Street, Suite 1600 

Salt Lake City, Utah 84144 

380 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE FEB 2 31982 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENTUCKY CARBON CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No, KENT 81-140 

A. C. No. 15-11161-03043D 

Calloway No. 1 Mine 

DECISION APPROVING SETTLEMENT 

The parties have reached a settlement of the violation involved in 

the total sum of $1,000.00. MSHA's initial assessment therefor was 

$5,000.00. In their joint motion the parties indicate 

"The parties, by counsel, after lengthy discussions of the criteria 

set forth within section llO(i) of the Act and a review of the trial 

record (Docket No. KENT 80-145-D) consisting of 653 pages, have agreed 

that the pending matter should be settled for $1,000. 

The following is a discussion of the section llO(i) criteria. 

1. Negligence - The violation resulted from a low degree of ordinary 

negligence. This conclusion is based upon the following considerations: 

a. The failure of Gooslin, the discriminatee, to timely notify 

Kentucky Carbon of his intentions to make a safety inspection on 

the night of September 30, 1979. 

b. Gooslin's unprotected activity, i.e., "On September 30, 1979, 

complainant Bobby Gooslin engaged in the following activity which 

does not constitute protected activity under section 105(c) of the 

Act: After being refused the right to enter and inspect the mine by 

Shift Foreman James Christian, Gooslin said, 'I'm going to show these 

damn Hagers that they don't run this place.'" Secretary of La'!:,vr, on 

behalf of Bobby Gooslin v. Kentucky Carbon Corporation, Docket No. 

KENT 80-145-D (FMSHRC, March 18, 1981), page 24. 

c. The comment made by Administrative Law Judge Laurenson in the 

original Gooslin case at page 15: "The UMWA and Kentucky Carbon were 

on a collision course. To put it kindly, MSHA was merely negligent. 

While these events are not directly related to the issues at hand, 

they set the stage for the events of September 30, 1979, which culminated in the work stoppage and the discharge of Bobby Gooslin." The 

events referred to in the above quotation are: 

1. Strained labor-management relations at the Calloway 

No. 1 Mine. 

381 
2. A history of wildcat work stoppages. 

3. Kentucky Carbon's written notification of its intent 

to discharge any miner involved in any unauthorized work 

stoppage. 

4. The discharge and subsequent reinstatement of thirteen 

miners who invoked their individual rights pursuant to the wage 

agreement, by refusing to work in an area which they considered 

unsafe. 

5. A continuing dispute between UMWA and Kentucky Carbon 

regarding the requirement of a twenty-four hour notice before 

making a safety committee inspection. 

6. The UMWA and Kentucky Carbon dispute involving MSHA in 

dealing with the propriety of hauling supplies on mantrips. 

2. Gravity - This violation could have a future effect upon miners 

who desire to assert rights protected by section 105(c) of the Act. However, the parties believe that the gravity of this matter has been negated 

by the decision in the discrimination proceeding heretofore mentioned. 

3. Good Faith - Good faith in the traditional sense is not applicable to the matter at hand. The fact that Kentucky Carbon refused to 

voluntarily reinstate Bobby Gooslin after the Mine Safety and Health Administration determined that Gooslinvs discharge was a violation of section 105(c) of the Act should not be considered as a lack of good faith; 

after all, Kentucky Carbon was exercising its right to contest said MSHA 

findings by means of civil litigation as prescribed within the Federal Mine 

Safety and Health Act of 1977. 

4. History - Kentucky Carbon Corporation was a respondent in three 

prior 105(c) discrimination cases filed with the Federal Mine Safety and 

Health Review Commis~ion. However, all three cases were settled without 

an affirmative finding of a section 105(c) violation. 

5. Size - Kentucky Carbon Corporation is a large operator. 

6. Ability to Remain in Business - The agreed penalty will not 

affect Kentucky Carbon Corporation's ability to remain in business. 

It is the parties' belief that approval of this settlement is in the 

public inr~rest and will further the intent and purpose of the Federal 

Mine Safet..1 and Health Act of 1977." 

382 
ORDER 

Respondent, if it has not previously done so, is ordered to pay 

$1,000.00 to the Secretary of Labor within 30 days from the date of this 

decision. 

#~~?#//~.;- Michael A. Lasher, Jr·. , Judge 

Distribution: 

William F. Taylor, Esq~. Office of the Solicitor, U. S. Department 

of Labor, 801 Broadway, Rm. 280, Nashville 9 TN 37203 (Certified 

Mail) 

W. Timathy Pohl, Esq., Kentucky Carbon Corp., 1300 One Valley Sq., 

Charleston, WV 25301 (Certified Mail) 

383 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 31982 

SECRETARY OF LABOR~ Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)~ Docket Noo LAKE 79-7-M 

Petitioner A/O Noo 47-02546-05001 R 

Vo 

Sherman Lime and Rock Quarry 

SHERMAN LIME AND ROCK COMPANYs 

Respondent 

Appearances 

Before: 

DECISION 

Miguel Jo Carmona~ Esqo~ Office of the Solicitor~ 

UoSo Department of Labor~ Chicago Illinois~ for 

the Petitioner; 

Thomas Eder, Partner, Sherman Lime and Rock Company~ 

Elk Mound, Wisconsin, for the Respondent. 

Judge Cook 

I. Procedural Background 

On May 4, 1979, the Secretary of Labor (Secretary) filed a petition for 

assessment of civil penalty in the above-captioned case pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

~~·(Supp. III 1979) (1977 Mine Act). The petition charges Sherman Lime 

and Rock Company (Respondent) with a violation of section 103(a) of the 1977 

Mine Act as set forth in a citation issued pursuant to section 104(a) of the 

1977 Mine Act. 

The Respondent failed to file an answer and, on September 30, 1980, 

Chief Administrative Law Judge James A. Broderick issued an order to show 

cause requiring the Respondent to either file an answer within 15 days or 

to show good reason, in writing, for its failure to do so. The Respondent 

filed an answer on October 22, 1980. On November 19, 1980, an order was 

issued by the undersigned Administrative Law Judge receiving the answer for 

late filing. 

Various notices of hearing were issued which ultimately scheduled the 

matter for hearing on the merits on March 12, 1981, in Eau Claire, Wisconsin. 

The hearing was held as scheduled with representatives of both parties present and participating. The Respondent delivered a closing argument and a 

schedule was set for the filing of posthearing briefs and proposed findings 

of fact and conclusions of law. 

384 
The briefing schedule was later revised due to difficulties experienced 

by the Respondent. The Secretary and the Respondent filed posthearing briefs 

on April 21, 1981, and August 3, 1981, respectively. The Secretary filed a 

reply brief on August 19, 1981. 

II. Violation Charged 

Citation No. Section Date 

287437 103(a) May 11, 1978 

IIIo Witnesses and Exhibits 

Ao Witnesses 

Both the Secretary and the Respondent called Robert C. Goins~ a Federal 

mine inspector~ and Thomas Eder~ a partner in the Respondent~ as witnesseso 

Bo Exhibits 

1. The Secretary introduced the following exhibits in evidence: 

M-1 is a three-page document containing copies of Citation Noo 287437, 

section 103(a)~ May 11~ 1978; and the May 12D 1978~ modification thereofo 

M-2 is a~copy of the inspector~s statement pertaining to M-lo 

M-3 is a certified copy of a court record in the case of Secretary 

of Labor v. Thomas Eder, Pat Eder, and Mike Eder, t/d/b/a Sherman Lime and 

Rock Company, Civil Action No. 78-C-273 (W.D. Wis.), certified by the Clerk 

of the Unit.ed States District Court for the Western District of Wisconsin, 

which contains copies of the complaint (filed June 22, 1978), the answer 

(filed July 17, 1978), and the consent judgment (filed November 2~ 1978)0 

2. The Respondent introduced the following exhibits in evidence: 

0-1 is a copy of an order issued on July 13, 1978, in the case of 

Secretary of Labor v. Thomas Eder, Pat Eder, and Mike Eder, t/d/b/a Sherman 

Lime and Rock Company, Civil Action No. 78-C-273 (W.D. Wis.), denying the 

Plaintiff's motion for a preliminary injunction. 

0-2 is a letter dated September 5, 1978, from Richard L. Wachowski, 

Esq., to Mr. Thomas Eder. 

0-3 is a letter dated September 8, 1978, from Richard L. Wachowski, 

Esq., to Mr. Thomas Eder. 

0-4 is a letter dated September 14, 1978, from Richard L· Wachowski, 

Esq., to Mr. Thomas Eder. 

385 
IV. Issues 

Two basic issues are involved in this civil penalty proceeding: (1) did 

a violation of section 103(a) of the 1977 Mine Act occur, and (2) what amount 

should be assessed as a penalty if a violation is fvund to have occurred? In 

determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of 

the penalty on the operator's ability to continue in business; (5) gravity 

of the violation; and (6) the operator's good faith in attempting rapid 

abatement of the violation. 

Vo Opinion and Findings of Fact 

A. Stipulations 

The parties entered into the following stipulations 1_/ on March 12 9 

1981~ 

lo At all times relevant to this matter, Thomas, Patrick, and Michael 

Eder traded and did business as Sherman Lime and Rock Company (Tr. 5). 

2. At all times relevant to this matter~ the Respondent operated a 

mine (quarry) located west of Menomonie 9 Dunn County~ Wisconsin (Tro 6)0 

3. A citation for violation of section 103(a) of the 1977 Mine Act 

was written by Inspector Robert C. Goins on May 11, 1978. The citation 

was mailed to the Respondent on May 12, 1978, due to the Respondent's 

refusal to accept personal service on May 11, 1978 (Tr. 6). 

4. The Respondent is a small, family-owned business (Tr, 11). 

5. The Respondent's Sherman Lime and Rock Quarry produced approximately 

2,000 tons in 1978 (Tr. 11-12). 

B. Occurrence of Violation 

Federal mine inspectors Robert C. Goins and John L •. Davidson arrived at 

the Respondent's Sherman Lime and Rock Quarry at approximately 7:50 a.m. on 

May 11, 1978, to conduct a safety and health inspection pursuant to the provisions of the 1977 Mine Act (Exh. M-1). The inspectors identified themselves 

and informed Patrick and Michael Eder as to the purpose of their visit (Exh. 

M-1). The inspectors were told that the Respondent's operation was a familyowned and operated business, that there was nothing to inspect, and that if 

1./ The parties also agreed that "[t]his shall be a partial stipulation of 

some of the facts involving the actual case and shall not be construed as 

precluding either party from presenting additional evidence to the Court" 

(Tr. 5). . 

386 
they were allowed onto the property to perform an inspection, then they could 

return at any time to shut down the mine (Exh. M-1). Patrick and Michael 

Eder denied the inspectors entry to the facility stating that they would not 

be allowed onto the property for the purpose of conducting an inspection 

(F.xh. M-1). The inspectors asked Patrick and Michael Eder if they would 

accept a citation, and they responded in the negative. The inspectors left 

the facility at approximately 8:25 a.m. 

Later that day, Inspector Goins prepared Citation No. 287437 charging 

the Respondent with a violation of section 103(a) of the 1977 Mine Act in 

that "Robert c. Goins and John L. Davidson, MSHA mine inspectors, were 

refused entry to the Sherman Lime and Rock Quarry at 0750. After letting 

operators read memorandum from Thomas Shepich~ 4-27, the operators still 

refused entry to the quarry* * *" (Exh. M-1). The citation was mailed to 

the Respondent by certified mail on May 12, 1978, due to the Respondent 1 s 

refusal to accept personal service on May 11, 1978 (Exh. M-l)o 

Section 103(a) of the 1977 Mine Act provides, in part, that n[f]or the 

purpose of making any inspection or investigation under this Act, the Secretary, * * *with respect to fulfilling his responsibilities under this Act, 

or any authorized representative of the Secretary* * *, shall have a right 

of entry to, upon, or through any coal or other mine." 

The Respondent def ends against the charge of violation by maintaining 

that it was under no legally enforceable duty on May 11 1978, to grant the 

authorized representatives of the Secretary entry to, upon, or through the 

Sherman Lime and Rock Quarry for the purpose of conducting a health and 

safety inspection. 

The material facts reveal that the Respondent is a small, family-owned 

business which is organized as a partnership. The Sherman Lime and Rock 

Quarry is located in Dunn County, Wisconsin, .and consists of a limestone 

quarry and related milling operation used to produce agricultural lime. The 

agricultural lime is sold to farmers in the immediate geographic area who use 

it to neutralize soil acidity, and it appears that the Respondent delivers 

the agricultural lime to its customers. However, the Respondent does not 

sell any of its products outside the State of Wisconsin. The business is 

seasonal, operating only during the fall and spring for a total of approximately 4 months p~r year. Additionally, it appears that the Respondent was 

making deliveries and performing maintenance work on May 11, 1978, but that 

no actual mining or milling activities were underway at the time of the 

attempted inspection. 

It appears that the partnership is composed solely of Patrick, Michael 9 

and Thomas Eder. Mr. Thomas Eder testified that Patrick Eder, Michael 

Eder~ and he are the only individuals who work at the facility • However, 

he also testified that the Respondent occasionally enters into contracts 

with powder companies who perform at least some of the drilling and blasting 

operations necessary to extract the limestone from the earth. According to 

Mr. Eder, the drilling and blasting operations are performed by one person 

who appears to be either an employee of the powder company or an independent 

owner-operator hired by the powder company. 

387 
As relates to the type of equipment used at the facility, Inspector Goins 

testified that he saw a John Deere.450 front-end loader, a Ford single-axle end 

dump truck, an Allis Chalmers patrol grader, and a Cedar Rapids plant. According to Inspector Goins, the Cedar Rapids plant consisted of a jaw crusher, a 

hammermill and probably a small rollmill. Mr. Eder testified that a shovel, 

a loader, a primary hammermill, trucks, and several Gardner Denver drill rigs 

are used at the facility. Mr. Eder further testified that the Respondent has 

used Ford, International, and Chevrolet trucks. Additionally, he testified 

that most of the equipment is "purchased local or as close to local as 

possible." It appears that all of the equipment was purchased in Wisconsino 

The Respondent makes use of the telephone to communicate with its customers 

and has made occasional use of newspapers to advertise its productso 

Following the May 11, 1978, denial of entry, the Secretary filed a civil 

action in the United States District Court for the Western District of 

Wisconsin pursuant to section 108 of the 1977 Mine Act to obtain injunctive 

relief. 2/ Secretary of Labor v. Thomas Eder, Pat Eder, and Mike Eder, 

t/d/b/a Sherman Lime and Rock Company, Civil Action Nao 78-C-273 (Exho M-3)o 

The Secretaryvs complaint, filed on June 22, 1978, alleged that at all relevant times mentioned therein, Thomas, Pat, and Mike Eder traded and did 

business as Sherman Lime and Rock Company, and operated a mine subject to the 

1977 Mine Act in or near Menomonie, Dunn County, Wisconsin, within the jurisdiction of the United States District Court for the Western District of 

Wisconsin; that on May 11, 1978, pursuant to section 103 of the 1977 Mine Act~ 

authorized representatives of the Secretary went to the mine operated by the 

Defendants to conduct a health and safety inspection of that mine; and that 

?:./ Section 108(a)(l) of the 1977 Mine Act provides as follows: 

"The Secretary may institute a civil action for relief, including a 

permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district 

in which a coal or other mine is located or in which the operator of such 

mine has his principal office, whenever such operator or his agent-

"(A) violates or fails or refuses to comply with any order or decision 

issued under this Act, 

"(B) interferes with, hinders, or delays the Secretary or his authorized representative, or the Secretary of Health, Education, and Welfare or 

his authorized representative, in carrying out the provisions of this Act, 

"(C) refuses to admit such representatives to the coal or other mine, 

"(D) refuses to permit the inspection of the coal or other mine, or 

the investigation of an accident or occupational disease occurring in, or 

connected with, such mine, 

"(E) refuses to furnish any information or report requested by the' 

Secretary or the Secretary of Health, Education, and Welfare in furtherance 

of the provisions of this Act, or 

"(F) refuses to permit access to, and copying of, such records as the 

Secretary or the Secretary of Health, Education, and Welfare determines 

necessary in carrying out the provisions of this Act." 

388 
on May 11, 1978, the ·Defendants failed and refused to permit the Secretary's 

representatives to enter and inspect the mine. }./ The Secretary prayed that 

the Defendants, their agents and employees and all persons in active concert 

and participation with them be preliminarily and permanently enjoined: 

(1) from refusing to admit authorized representatives of the Secretary to, 

upon or through the Defendants' mine; (2) from refusing to permit the 

inspection of the mine by authorized representatives of the Secretary; 

(3) from interfering with, hindering, and delaying authorized representatives 

of the Secretary in carrying out the provisions of the 1977 Mine Act; and 

(4) for such other relief as the Court may deem just and proper. 

The Defendants filed an answer on July 17, 1978, admitting all of the 

above-stated factual allegations in the complaint with the exception of the 

allegation that the Defendants' mine is subject to the 1977 Mine Acta That 

allegation was specifically denied. 

3/ The affidavit of Federal mine inspector Robert Co Goins was attached to 

the complaint and incorporated therein by referenceo The affidavit states$ 

in part~ as follows: 

"l. I am an authorized representative of the Secretary of Labor employed 

by MSHA as a Metal and Nonmetal Mine Inspector and assigned to the Madison, 

Wisconsin field office. In this capacity I conduct inspections and investigations of mines pursuant to Section 103 of the Federal Mine Safety and Health 

Act of 19770 I have personal knowledge of the facts and circumstances contained hereino 

"2. On May 11, 1978, accompanied by John Lo Davidson I went to the 

Sherman Lime and Rock Company quarry located west of Menomonie, Dunn County~ 

Wisconsin. The mine is owned by Tom Eder and operated by him and his two 

sons, Pat and Mike. 

"3. We arrived at the quarry at 7:30 A.M. and met Pat .Eder at the gate. 

He approached our car and asked what we wanted. We introduced ourselves and 

informed him that we were on his property to conduct an inspection. Mr. Eder 

asked, 'What is there to inspect?' At this point Mike Eder arrived and 

joined in the conversation. 

"4. Mike Eder stated that the company, being family owned and not having 

any employees, was not within the coverage of the Act. We explained to 

Mr. Eder that we believed that Public Law 95-164 applied to their mine. 

"5. Mike Eder said, 'If I allow you in here now, you could come any 

time and close us down. No one is coming in here to inspect us.' We asked 

both brothers if they were denying us the right of entry. Both brothers 

responded, 'Yes.' 

u6. We explained to the Eders that we would be required to issue a 

citation for their refusal of the statutory right of entry. The brothers 

told us to issue the citation but that we would not be allowed on the property to inspect. They also would not accept the citation, and therefore had 

to be mailed by certified mail to the company office. 

"7. We left the property at 8:25 A.M." 

389 
On November 2, 1978, a "consent judgment 11 was entered by United States 

District Judge James E. Doyle, and approved and consented to b~ the parties 

as evidenced by the signatures of their respective attorneys. The "consent 

judgment" provides as follows: 

This matter having come before the Court on the Complaint 

filed in the captioned matter, and the parties having stipulated to the material allegations of the Complaint as evidenced by the signatures of their attorneys, and the Court 

having considered the same; it is hereby ORDERED: 

That Thomas Eder, Pat Eder, and Mike Eder, now doing 

business as Sherman Lime and Rock Company, their agents and 

employees, and all persons in active concert and participation with them be permanently enjoined as follows: 

1. From refusing to admit authorized representatives of 

the Secretary entry to, upon or through defendantsv mine; 

2a From refusing to permit the inspection of the mine 

by authorized representatives of the Secretary; and 

3. From interfering with, hindering, and delaying the 

Secretary of Labor or his authorized representatives in 

carrying out the provisions of the Federal Mine Safety and 

Health Act of 1977~ 30 u.s.c.A. 801-961 (1971 and Supp. 

1978). 

The Respondent appears to concede that its limestone quarry and related 

milling operation falls within the definition of "coal or other mine" set 

forth in section 3(h)(l) of the 1977 Mine Act. 4/ The Respondent argues 

that the May 11, 1978, denial of entry was lawful because: (1) it is 

not engaged in an activity in or affecting interstate commerce; (2) the 1977 

Mine Act's coverage does not extend to small, family-owned and operated mines 

4/ Section 3(h)(l) of the 1977 Mine Act provides as follows: 

"'[C]oal 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 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 deposts 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. In making 

a determination of what constitutes mineral milling for purposes of this 

Act, the Secretary shall give due consideration to the convenience of 

390 
in which the owners are the only miners; (3) nonconsensual safety and health 

inspections conducted without a search warrant violate the right guaranteed 

by the Fourth Amendment to the United States Constitution to be free from 

unreasonable searches and seizures; and (4) active mining and milling operations were not underway at the time of the attempted inspection. 

I conclude that the "consent judgment" entered by the United States 

District Court for the Western District of Wisconsin on N~ember 2, 1978, 

prevents the Respondent from raising these four defenses in the instant civil 

penalty proceeding because, as a general rule, consent decrees in equity are 

accorded res judicata effect. Safe Flight Instrument Corporation v. United 

Control Corporation, 576 F.2d 1340 (9th Cir. 1978); Wallace Clark & Co., Inc. 

v. Acheson Industries, Inc., 532 F.2d 846 (2nd Cir. 1976). Both the Federal 

Court action which culminated in the entry of the nconsent judgment" and the 

instant civil penalty proceeding arise from the same May 11, 1978, denial of 

entry. The wording of the "consent judgment," on its face, reflects an 

adjudication by the Court that the Respondent's mine and related milling 

operation falls within the statutevs coverage and that the May 11, 1978, 

denial of entry was unlawful. See Wallace Clark & Co., Inc. v. Acheson 

Industries, Inc., supra (similarly worded consent decree characterized as an 

adjudication). 

The Respondent is clearly attempting to mount a collateral attack on the 

District Court 1 s "consent judgment" in this proceeding.· "[A] collateral 

attack is an attempt to avoid, defeat, or evade a judicial decree, or deny 

its force and effect, in some incidental proceeding not provided by law for 

the express purpose of attacking it." lB J. MOORE, FEDERAL PRACTICE~ 

, 0.407 at 934 (1980). The statute does not empower the Federal Mine Safety 

and Health Review Connnission (Commission) to entertain a collateral attack 

on a Federal District Court's section 108 injunction. Accordingly, the 

Respondent's attempt to avoid, defeat, or evade the injunction, or to deny 

the injunction's force and effect, in this proceeding must fail. 

As an alternative basis for decision, I conclude that the four defenses 

fail on the merits. 

The Respondent maintains that it is not subject to the provisions of the 

1977 Mine Act by arguing that its products do not enter commerce, nor do its 

products or operations affect connnerce. 'Section 4 of the 1977 Mine Act provides that "[e]ach coal or other mine, the product of which enter commerce, 

or the operations or products of which affect commerce, and each operator of 

fn. 4 (continued) 

administration resulting from the delegation to one Assistant Secretary 

of all authority with respect to the health and safety of miners employed 

at one physical establishment." 

Operations such as the Respondent's have been held to fall within this 

definition. Waukesha Lime and Stone Company, Inc., 3 FMSHRC 1702, 2 BNA 

MSHC 1376, CCR OSHD Par. (1981). 

391 
such mine, and every miner in such mine shall be subject to the provisions of 

this Act." In support of its position, the Respondent cites Morton v. Bloom, 

373 F. Supp. 797 (W.D. Pa. 1973), and argues that none of its products cross 

state lines. 

The evidence shows that the Respondent's agricultural lime is sold wholly 

within the State of Wisconsin to farmers who use it to neutralize soil acidity. 

The Respondent delivers the agricultural lime to its customers, and has used 

Ford, International, and Chevrolet trucks. The Respondent uses certain equipment, identified previously in this decision, in its operation; uses the telephone to contact its customers; and has made occasional uses of newspapers to 

advertise its products. In view of the decisions in Marshall v. Anchorage 

Plastering Company, No. 75-2747, 6 OSHC 1318 (9th Cir., filed February 2, 

1978), and Marshall v. Bosack, 463 F. Supp. 800 (E.D. Pa. 1978)~ I conclude 

that the Respondent's products or operations affect commerce within the meaning of section 4 of the 1977 Mine Act. 

The Respondent 9 s reliance on Morton v. Bloom, supras is misplaced. 

Bloom involved a one-man mine operation whose coal was sold "exclusively 

within Pennsylvania.u 373 F. Supp. at 798. The Court held that this operation was not the type which Congress intended to cover when it enacted the 

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

(1970). More significantly, the Court found itself unable to conclude "that 

defendant 7 s one-man mine operation will substantially interfere with the 

regulation of interstate commerce." 373 Fo Supp. at 7990 Even under the 

standard set forth by the United States Supreme Court in Wickard v. Filburn 0 

317 UoS. 111, 63 So Ct. 82, 87 L.Ed. 122 (1942), the Court determined that 

the operation was "one of local character in which the implementation of 

safety features required by the Act will not exert a substantial economic 

effect on interstate commerce." 373 F. Supp. at 799. 

A review of the Court's reasoning in Bloom indicates that it should not 

be followed in the instant case. First, it appears that the Court failed to 

properly consider all of the possible means by which the operation could have 

affected commerce. The Court noted at one point in its opinion that the 

"defendant does use some equipment in his mine which was manufactured outside 

of Pennsylvania * * *," 373 F. Supp. at 798, but determined that this did not 

bring the mine within the scope of the commerce clause since the purchase of 

the equipment was "so limited that its use would be de minimis." 373 F. Supp. 

at 798. This reasoning appears to run contrary to the United States Supreme 

Court's determining in Mabee v. White Plains Publishing Co., 327 U.S. 178, 

181, 66 S. Ct. 511, 90 L.Ed. 607 (1946), that the de minimis maxim should 

not be applied to commerce clause cases absent a Congressional intent to make 

a distinction on the basis of volume of business. The 1977 Mine Act does not 

require the effect on commerce to be substantial before a mine can be held 

to fall within the statute's coverage. See Marshall v. Bosack, supra. 

Second, "[e]ven activity that is purely intrastate in character may be 

regulated by Congress, where the activity, combined with like conduct by 

others similarly situated, affects counnerce among the States or with foreign 

392 
nations." F)y v. United States, 421 U.S. 542, 547, 95 s. Ct. 1792, 44 L.Ed. 

2d 363 (1975 • The Court in Bloom, does not appear to have considered the 

effects which many small, owner-operated mine operations might collectively 

have on commerce. The Court in Bosack considered these effects and determined that such operations or their products affect commerce. 

The Respondent's second argument asserts that the 1977 Mine Act 1 s 

coverage does not extend to small, family-owned and operated mines in which 

the owners are the only miners. !!_/ This argument is without foundation 

because owner-operated mines in which the owners are the only miners have 

been held to be subject to the provisions of the 1977 Mine Act~ Marshall Vo 

Sink, 614 F.2d 37, 38 n. 2 (4th Cir. 1980); Marshall v. Kraynak, 604 Fo2d 

231 (3rd Cir. 1979); Marshall v. Kniseley Coal Company, 487 Fo Suppo 1376 

(W.D. Pa. 1980); Marshall v. Donofrio, 465 F. Supp. 838 (E.D. Pao 1978); 

Marshall v. Bosack, 463 F. Supp. 800 (E.D. Pa. 1978); of the 

Interior v. Shingara, 418 Fo Supp. 693 (M.D. Pa. 197 

The Respondent's third argument asserts that nonconsensual safety anci 

health inspections conducted without a search warrant violate the 

guaranteed by the Fourth Amendment to the United States Constitution to be 

free from unreasonable searches and seizures. This argument is rejectedn The 

United States Supreme Court has held that warrantless safety and health 

inspections authorized by section 103(a) of the 1977 Mine Act are constitutionally permissible and do not violate the Fourth Amendmento Donovan Vo 

Dewey~ No. 80-901 (U.S. Supreme Court, filed June 17~ 198l)o See 9 

Marshall Vo Sink, 614 F.2d 37 (4th Cir. 1980); Marshall Vo TheTeXoITne 

Company~ 612 Fo2d 935 (5th Cir. 1980); Marshall Vo Nolichuckey Sand Company~ 

606 F.2d 693 (6th Cir. 1979); Marshall v. Stoudt's Ferry Preparation Company, 

602 F.2d 589 (3rd Cir. 1979); Marshall v. Cedar Lake Sand & Gravel Company, 

Inc., 480 F. Supp. 171 (E.D. Wis. 1979); Marshall v. Donofrio, 465 F. Supp. 

838 (E.D. Pa. 1978), aff'd., 605 F.2d 1194 (3rd Cir. 1979). 

Finally, the Respondent argues that the May 11, 1978~ denial of entry 

was lawful because active mining and milling operations were no.t underway at 

the time of the attempted inspection. This argument is without foundation 

because it appears that the Respondent was performing maintenance work and 

delivering agricultural lime to customers on May 11, 1978. In Marshall v. 

Gilliam, 462 F. Supp. 133 (E.D. Mo. 1978), it was held that the cessation of 

active mining operations in the pit area does not suspend the provisions of 

the 1977 Mine Act when the mine operator continues to load and ship prev~ously 

mined minerals from his stockpile. So long as the operator continues to 

load and ship minerals from his stockpile, he may be inspected and regulated 

under the 1977 Mine Act. 

The Respondent also appears to argue that a civil penalty cannot be 

imposed in this proceeding because a section 108(a)(l) injunction had not been 

5/ Section 3(g) of the 1977 Mine Act defines the term "miner" as "any 

individual working in a coal or other mine." Thomas, Patrick, and Michael 

Eder each fall within this definition. 

393 
entered as of May 11, 1978. This argument is rejected. In Waukesha Lime and 

Stone Company, Inc., 3 FMSHRC 17.02, 2 BNA MSHC 1376, CCH OSHD par. 

(1981), the Connnission hetd that a mine operator who denies an 

authorized representative of the Secretary the right of entry for the purpose 

of conducting an inspection connnits a violation of section 103(a) of the 1977 

Mine Act for which a civil penalty must be assessed. The Commission expressly 

rejected the argument that the Secretary's exclusive remedy is an injunction 

·under section 108(a)(l), stating that the statute provides the Secretary with 

dual remedies: "an administrative remedy under sections 104 and llO(a), and 

a civil injunctive remedy under section 108(a)(l) .~· 3 FMSHRC at 1704. 

In view of the foregoing, I conclude that the Respondent committed a 

May 11, 1978, violation of section 103(a) of the 1977 Mine Act for which a 

civil penalty must be assessed in this proceeding. 

C. Negligence of the Operator 

Federal mine inspector Robert C. Goins attempted to conduct an inspection at the Respondent's Sherman Lime and Rock Quarry on October 6~ 1977, 

pursuant to the provisions of the Federal Metal and Nonmetallic Mine Safety 

Act of 1966, 30 u.s.c. § 721 et seq. (1966 Metal Act). 6/ The Respondent 

refused to allow Inspector Goins~ conduct the inspection. 

Mr. Thomas Eder testified that a "mutual agreement" existed amongst the 

partners which predated May 11~ 1978, to refuse entry to Federal mine inspectors. He further testified that he agreed with his sons' decision to refuse 

entry to Inspectors Goins and Davidson. 

In view of the foregoing, it is found that the May 11, 1978, denial of 

entry was accompanied at least by ordinary negligence. 

D. Gravity of the Violation 

A denial of entry is a serious violation of the 1977 Mine Act. One of 

the principal purposes of inspections conducted pursuant to the provisions 

of the 1977 Mine Act is to detect violations of the mandatory health and 

safety standards and to determine whether imminent dangers exist, and to 

order the abatement of any violations or imminent dangers found so as to 

remove the associated hazards from the miners' work environment. Absent 

entry to the mine, these salutary and Congressionally mandated objectives 

cannot be achieved. 

6/ The Federal Mine Safety and Health Amendments Act of 1977, Pub. L. No. 

95-164, 91 STAT. §§ 1290-1322, amongst other things, enlarged the definition 

of mine set forth in section 3(h) of the 1969 Coal Act to include those mines 

previously covered by the 1966 Metal Act. s. Rep. No. 95-181, 95th Cong., 

1st Sess. (1977), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY 

AND HEALTH ACT OF 1977 at 647 (1978). 

394 
Additionally, Inspector Goins gave testimony which indicated that the 

violation was serious, and his testimony on this point was not rebutted by 

the Respondent. In fact, the Respondent appeared to concede during his closing 

argument that "plenty" of safety factors needed correction. 

In view of the foregoing, it is found that the violation was serious. 

E. Good Faith in Attempting Rapid Abatement 

Mr. Thomas Eder testified that he is unwilling to comply with Judge 

Doyle's November 2, 1978, order and allow Federal mine inspectors to 

inspect his property. He testified that he would prohibit Federal mine 

inspectors from conducting inspections, and indicated that he would 

temporarily close the mine in order to avoid an inspectiono 

F. Size of the Operatorvs Business 

The parties stipulated that the Respondent is a small, family-owned 

business, and that the Sherman Lime and Rock Quarry produced approximately 

2,000 tons in 19780 

In view of the foregoing, it is found that the Respondent is small in 

size. 

G. History of Previous Violations 

The Secretary concedes that the Respondent has no history of previous 

violations (Tr. 73). 

R. Effect of a Civil Penalty on the Operator's Ability to Remain 

in Business 

No evidence was presented to establish that the assessment of a civil 

penalty in this proceeding will affect the operator's ability to remain in 

business. ]_/ In Rall Coal Company, 1 IBMA 175, 79 I.D. 668, 1 BNA MSHC 

1037, 1971-1973 CCR OSHD par. 15,380 (1972), the Commission's predecessor, 

the Interior Board of Mine Operations Appeals, held that evidence relating 

to whether a civil penalty will affect the operator's ability to remain in 

business is within the operator's control, resulting in a rebuttable presumption that the operator's ability to continue in business will not be 

affected by the assessment of a civil penalty. 

7/ Business and tax records are the type of evidence necessary to establish 

a claim of financial impairment. Hall Coal Company, 1 IBMA 175, 180, 79 I.D. 

668, 1 BNA MSHC 1037, 1971-1973 CCH OSHD par. 15,380 (1972), see also, Davis 

Coal Company, 2 FMSHRC 619, 1 BNA MSHC 2305, 1980 CCR OSHD par:-24,291 (1980) 

(Lawson, c., dissenting). · 

395 
Therefore, I find that a civil penalty otherwise properly assessed in 

this proceeding will not impair the Respondent's ability to remain in 

business. 

VI. Conclusions of Law 

1. The Sherman Lime and Rock Company and its Sherman Lime and Rock 

Quarry have been subject to the provisions of the 1977 Mine Act at all 

times relevant to this proceeding. 

2. Under the 1977 Mine Act, the Administrative Law judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

3. Federal mine inspector Robert C. Goins was a duly authorized 

representative of the Secretary of Labor at all times relevant to the 

issuance of Citation Noe 287437. 

4. The violation charged in Citation No. 287437 is found to have 

occurred as alleged. 

5. All of the conclusions of law set forth in Part V of this decision are reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

The Respondent delivered a closing argwnent on March 12~ 1981. The 

Secretary and the Respondent filed posthearing briefs on April 21, 198ls 

and August 3, 1981, respectively. The Secretary filed a reply brief on 

August 19, 1981. Such briefs and closing argument, insofar a they can 

be considered to have contained proposed findings and conclusions, have 

been considered fully, and except to the extent that such findings and 

conclusions have been expressly or impliedly affirmed in this decision, 

they are rejected on the ground that they are, in whole or in part, 

contrary to the facts and law or because they are immaterial to the 

decision in this case. 

VIII. Penalty Assessed 

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of a 

civil penalty is warranted as follows: 

Citation No. Date Section Penalty 

287437 May 11, 1978 103(a) $200 

396 
ORDER 

The Respondent is ORDERED to pay a civil penalty in the amount of $200 

within 30 days of the date of this decision. 

Distribution: 

John F. Cook 

Administrative Law Judge 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail) 

Thomas Eder, Partner, Sherman Lime and Rock Company~ Box 202, Elk Mound, 

WI 54739 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health~ U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

397 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 31982 

FRANKLIN D JOHNSON, 

Complainant 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION, OR 

v. INTERFERENCE 

EASTERN ASSOCIATED COAL CORP., 

Respondent 

Docket No. WEVA 80-647-D 

Appearances: 

Before: 

Keystone No. 2 Mine 

DECISION 

Thomas L. Butcher, Esq., Pineville, West Virginia$ 

for Complainant; 

Sally S. Rock, Esq., Eastern Associated Coal Corporation, Pittsburgh, Pennsylvania, for Respondent. 

Judge Melick 

This case is before me upon the complaint of Franklin D. Johnson 

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

1977, 30 U.S.C. section 801 et seq., the "Act," alleging that Eastern 

Associated Coal Corp. (Eastern) discharged him on March 20, 1980, in 

violation of section 105(c)(l) of the Act. 1/ An evidentiary hearing 

was held on Mr. Johnson's complaint in Beckley, West Virginia, on August 

18 and 19, 1981. On January 18, 1982, the case was transferred to the 

undersigned Judge and the parties agreed to submit the case to this 

Judge for decision on the existing record. 

Mr. Johnson can establish a prima facia violation of section 

105(c)(l) of the Act if he proves by a preponderance of the evidence 

that he has engaged in an activity protected by that section and that 

the discharge of him was motivated in any part by that protected activity. Secretary of Labor ex rel David Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786 (1980), rev'd. on other grounds, Consolidation Coal Co. v. 

Secretary, 663 F2d 1211 (3d Cir. 1981). Before his discharge, Johnson 

was night shift foreman in the 3 right 3 west section of Eastern's 

1/ Section 105(c)(l) of the Act provides in part as follows: No 

person shall discharge * * * or cause to be discharged * * * or otherwise interfere with the· exercise of the statutory rights ·of any miner 

* * * in any coal * * * mine subject to this Act because such miner * * * has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator's agent 

* * * at the coal * * * mine * * * or because of the exercise of such 

miner * * * on behalf of himself or others of any statutory right 

afforded by this Act." 

398 
Keystone No. 2 mine. He claims as protected activity alleged safety 

complaints on or about March 15, 1980: (1) to Tyler Snow, the second 

shift mine foreman and Johnson's immediate supervisor, expressing disapproval of orders by Snow to "cut 6 foot [roof] bolts into 4 foot bolts 

and to put them up", and (2) to Snow and to general mine foreman Donzal 

Morgan, complaining that the preceding day shift foreman, Don Moore, had 

been leaving Johnson's workplace unsafe by "cutting places in the mine 

too deep and too wide" and by leaving excessive coal accumulations. 

Eastern denies that Johnson made any complaint to Snow about the shortening of roof bolts and maintains that although discussions during the 

period March 10 to March 20, 1980, did, indeed, take place among Johnson, Snow, and Morgan, concerning the conditions and mining practices 

where Johnson had been working, including the need for additional clean 

up, rock dusting, and ventilation, these discussions did not constitute 

"safety complaints" within the meaning of the Act. 

Even assuming, arguendo, that the complaints were in fact made to 

Tyler Snow and Donzal Morgan as alleged and even assuming, arguendo, 

that those complains were protected activity under Section lOS(c)(l), I 

do not find in this case any direct evidence, nor sufficient circumstantial evidence, to prove that the individual who made the decision to 

discharge Johnson had any knowledge at that time of any such complaints. 

I conclude therefore that Johnson's discharge could not have been motivated in any part by the alleged protected activity and that accordingly 

there has been no violation of the Act. Pasula, supra. 

I find that, ultimately, the decision to discharge Johnson was 

independently made by the senior official of the Keystone No. 2 mine, 

Mine Superintendent Wayne Jones. While there is no question that mine 

foreman Donzal Morgan was the individual who informed Johnson of his 

discharge, it is apparent from the credible evidence of record that 

Morgan was essentially only carrying out the orders of the mine superintendent. According to Superintendent Jones, he told Morgan that 

"Johnson has got to go * * * [i]f you don't do it, I will". It is 

apparent that Jones made this decision spontaneously and independently 

during a personal inspection of the mine on the morning of March 20th. 

Jones and Eastern's safety inspector Dallas Peters were inspecting the 

mine early that morning in anticipation of a government "blitz" inspection. According to Jones, the 3 right 3 west section, which had last 

been worked by Johnson, was in "miserable" condition. It was "filthy 

dirty" with excessive coal dust, loose coal accumulations, and insuf...: 

ficient rock dusting. In particular, there was coal spillage up to the 

bottom of the conveyor belt some 24 to 26 inches deep for a distance of 

about 150 feet. In addition, Jones found seriously inadequate ventilation of the section in an area of well known methane problems. In 

sum, Jones found the conditions left by Johnson so unsafe he concluded 

there was an "imminent danger". The section was immediately closed 

down, and it took more than a full shift of cleanup work to get it back 

399 
into production. Johnson does not deny that he left dangerous conditions in his section and that as foreman he was responsible for those 

conditions. Indeed, he unequivocally admits that his section was neither adequately cleaned nor properly rock dusted and that he was accordingly in violation of company standards. 

Superintendent Jones decided on the spot that Johnson would have to 

go and recalled that he later directed Donzal Morgan to carry out that 

decision. Morgan recalled discussing Johnson's status with Jones but 

thought that he had made the decision to discharge Johnson by himself. 

I find Morgan's testimony uncertain and equivocal in this regard and I 

therefore find Jones' testimony the more persuasive. It is clear that 

no other decision would in any event have been tolerated by Jones. 

Since it is neither alleged nor proven that Jones had any knowledge of 

Johnson's purported safety complaints to Snow and Morgan, I cannot find 

that the discharge of Johnson by Jones was motivated in any part such 

complaints. 

Even assuming, arguendo, that Donzal Morgan had participated in the 

decision to discharge Johnson, it would have been untainted by any 

improper motive. It is not alleged that Morgan had knowledge of the 

complaints Johnson purportedly made to Snow about shortening roof bolts 

and there is insufficient evidence, in any event, to support such a 

claim. Johnson nevertheless initially maintained that he had complained 

over a period of 3 months to both Snow and Morgan about the conditions 

left in his section by the preceding day shift foreman,, Don Moore" 

Under cross examination, Johnson did, however, retract and admit that he 

had followed Moore on no more than five occasions within a period of 

less than two weeks and actually complained only two or three times. 

Johnson continues to maintain that on one of those occasions, he called 

Snow to report that Moore had taken a 23 foot cut of coal in an entry --

a deeper cut than normally allowed. Johnson allegedly reported that 

Moore had failed to "timber it down to standard" so that it was unsafe 

to work in the entry until his own crew had performed that task. On the 

other occasions, he apparently called Snow because Moore had left the 

section without adequate cleaning and rock dusting. 

Neither Snow nor Morgan deny that they had from time to time 

received such routine reports from Johnson, just as they had from other 

foremen. It was the regular practice at the mine for the oncoming 

section foreman to report such conditions to the shift foreman to 

explain delays in beginning production and that is the context in which 

Johnson's reports were taken. At no time did Johnson or his crew refuse 

to work because of unsafe conditions. Inasmuch as it was the accepted 

and routine practice at the mine for oncoming foremen to.make such calls 

to their superiors in explaining their inability to begin immediate 

production, that such calls were routinely made by other foremen without 

any evidence of discrimination against them, and that the operator's 

stated grounds for discharging Johnson have a legitimate and strong 

factual basis in the record, I conclude that even if Morgan had participated in the decision to discharge Johnson, there is simply insufficient evidence to show that any such participation would have been 

motivated in any part by the alleged protected activity. 

400 
Under the circumstances, Johnson has failed to sustain his burden 

of proof under section lOS(c)(l) of the Act. Pasula, supra. The complaint herein is therefore denied· and the case ismissed. 

Issued: 

Gary 

Assistan7 

Distribution: By certified mail. 

Thomas L. Butcher, Esq., P.O. Box 995, Pineville, WV 24874 

Sally S. Rock, Esq., ·Eastern Associated Coal Corporation, Koppers 

Building~ Plttsburgh, PA 15219 

401 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 FEB 261982 

SECRETARY OF LABOR, MINE SAFETY AND ) CIVIL PENALTY PROCEEDINGS 

HEALTH ADMINISTRATION (MSHA), ) 

) DOCKET NO. CENT 80-247-M 

Petitioner, ) A/C No. 23-00759-05002 H 

) 

v. ) DOCKET NO. CENT 80-248-M 

) A/C No. 23-00759-05003 

McDOWELL QUARRY COMPANY, ) 

) MINE: Blinne Quarry 

Respondent, ) 

Appearances: 

James R. Cato, Esq., Office of Tedrick A. Boush, Jr., 

Regional Solicitor, United States Department of Labor 

Kansas City, Missouri 

For the Petitiofier 

William McDowell, appearing Pro Sei 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

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

Administration, (MSHA), charges respondent, McDowell Quarry Company, with 

violating two regulations adopted under the Federal Mine Safety and Health 

Act~ 30 U.S.C. 801 et 

After notice to the parties a hearing on the merits was held in Rolla, 

Missouri. 

ISSUES 

The issues are whether respondent violated the regulations. If any 

violations occurred, what penalties, if any, are appropriate. 

CENT 80-247-M 

In this case respondent is charged with violating Title 30, Code of 

Federal Regulations, Section 56.9-3 . .!/ 

1/ The cited regulation provides as follows: 

56.9-3 Mandatory. Powered mobile equipment shall be provided with 

adequate brakes. 

402 
SUMMARY OF THE EVIDENCK 

On August 8, 1979, MSHA representative Willard .J. Graham inspected a 

Terex loader at the McDowell QuRrry (Tr. 12-13). The loa(1ter was being 

operated out of a pit. He checked the brakes by backing up the equipment 

on a 10 foot inc1ine. The brakes would not hold the Terex (Tr. 24). 

The inspector ordered the loader taken out of service because of the 

hazards: an uneven roadway combined with a 10 percent grade. These 

features could cause a situation of imminent danger to the workers at the 

site (Tr. 23, 24, 26, 31-34). 

It was the Terex operator's first day on the job (P2). The MSHA 

inspector credits the operator with stating that he hadn't "had any" 

brakes. However, I believe McDowell's contrary version to the effect that 

the Terex had brakes that morning. Initially, when confronted with the 

operator's statement, McDowell immediately denied it. Further, I find his 

direct testimony to be credible. He had run the loader himself that 

morning and the brakes were adequate at that time (Tr, 29, 56-59), 

Petitioner offered a flurry of evidence to the effect that William 

McDowell, owner of the quarry, should have known the Terex brakes were 

about to fail. I am not persuaded. MSHA inspector Howard Lucas testified 

that Terex brakes can give 11 little warning" of a failur~ (Tr, 69), This 

basically supports McDowell's view that brakes of this type can fail~ as 

they did here, without any warning (Tr. 55) • 

. In surmnary, the evidence supports the conclusion that the Terex mobile 

equipment did not have adequate brakes as required by 30 C.F.R § 56.9-3. 

The additional matters relating to William McDowell's personal knowledge of 

the brakes failing does not avoid the violation but addresses the 

negligence evaluation in assessing a civil penalty. 

CIVIL PENALTY 

Section llO(i) of the Act [30 u.s.c. 820(i)] provides as follows: 

The Commission shall have authority to assess all civil penalt s 

·provided in this Act. Iri assessing civil monetary penalties, the 

Commission shall consider the operator's history of previous· viol at ions, 

the appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violation, 

and the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

Petitioner proposes a penalty by way of a special assessment in the 

amount of $750. Petitioner's narrative findings rely to a large degree on 

petitioner's perception of the negligence of managemtt!nt in failing 

to isolate and correct this violation. 

As previously indicated a maintenance and inspection program would not 

have helped the quarry in learning of the defective brakes. I further 

403 
conclude the negligence of the quarry was not severe since the quarry owner 

had operated the loader and found that the brakes were satisfactory on the 

morning of the inspection. 

Considering the statutory criteria, l deem th~t a civil penalty of 

$75 is appropriate for this violation. 

CENT 80-248-M 

In this case respondent is charged with violating Title 30, Code of 

Federal Regulations, Sect ion 56. 5-SOB Jj 

2/ The cited regulation, including the permissible noise exposure 1n, 

S6.5-50(a), provides; in part, as follows: 

56.5-50 Mandatory. (a) No employee shall he per~itted an exposure 

to noise in excess of that specified in the table belo~. Noise level 

measurements shall be made using a sound level meter meeting specifications 

for type 2 meters contained in American National Standards Institute (ANSI) 

Standard Sl.4-1971. "General Purpose Sound Level Meters," approved April 

27, 1971, which is hereby incorporated by reference and made a part hereof, 

or by a dosimeter with similar accuracy, This puhlicat ion may be obtained 

from· the American National Standards Institute, Inc., 1430 Broadway, New 

York, New York 10018. or may be examined in any Metal and Nonmetal Mine 

H~alth and Safety Distr or Subdistrict Office of the Mine Safe and 

Heal th Administration. 

Duration per day 

hours of exposure 

8 

6 

4 

3 

2 

1 l/ 2 

1 

1/2 

1/ 4 or less 

PERMISSIBLE NOISE EXPOSURES 

Sound level dBA, 

slow response 

90 

92 

95 

97 

100 

102 

105 

110 

115 

No exposure shall exceed 115 dBA. Impact or impulsive noises shall not 

exceed 140 dB, peak sound pressure level. 

(b) When employees' exposure exceeds that listed in the above table, 

feasible administrative or engineering controls shall be utilized. If such 

controls fail to reduce exposure to within permissible levels, personal 

protection equipment shall be provided and used to reduce sound levels to 

within the levels of the table. 

404 
SUMMARY OF THR EVIDENCE 

On July 20, 1979 MSHA representative Willard J. Graham sampled the 

McDowell Quarry crusher operator for possible excessive noise exposure 

(Tr. 70-71, 77). 

The inspector used a dosimeter and a <lBA meter. The devices had been 

properly calibrated and the inspector spent most of the day with the 

crusher operator (Tr. 76, 79). 

When the crusher was not crushing any rock the dBA meter showed a 90 

to 94 level. When crushing rock the noise level ran 105 to 110 dRA. The 

noise exposure was taken for 465 minutes and the exposure, according to the 

dosimeter, was 300%. The operating manual interpolates 307% into 98 dBA 

and 286% into 97.5 dBA (Tr. 81, 82). 

The quarry abated this condition by build a shack for the crusher 

operator, Th reduced the noise level a significant amount, to 39 

percent (Tr. 83-86). 

DISCUSSION 

The uncontroverted evidence establishes a violation of 30 C.F.R. 

56.5-50. 

The quarry contends the proposed civil pena 1 of $40 is excessive 

because the quarry was shut down for a time while the condition was 3hated, 

I find that although the quarry abiated the conrlition I do not conclude that 

the proposed penalty is excessive. 

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

the fo 1 lowing 

ORDER 

CENT 80-247-M 

1. Citation 189161 lS affirmed. 

2. A civil penalty of $75 lS assessed. 

CENT 80-248-M 

1. Citation 189138 lS affirmed. 

2. The proposed civil penalty of $40 lS affirmed. 

/ .. · j._,.. f'·A //)-• ) l ' / 

i.,//>-1 

.' I /·-1 .4 ·-?-·. •, ~ · ', {-,/ 71<.-~---

.·John J. Morris 

· A<lministrat i'.~e Law Judge ', 

405 
Distribution: 

James R. Cato, Esq. 

Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

Mr. William McDowell 

McDowell Quarry Company 

Edgar Star Route 

Box 368 

Rolla, Missouri 65401 

406 
FEDERAL MINE SAFETY AND. HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 26, 1982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. LAKE 80-387 

A/O No. 33-00968-03059 

v. 

Nelms No. 2 Mine 

YOUGHIOGHENY AND OHIO 

COAL COMPANY, 

·Respondent 

Appearances: 

Before: 

DECISION 

Marcella L. Thompson, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Cleveland, Ohio, for Petitioner, MSHA; 

Robert C. Kata, Esq., Youghiogheny and 

Ohio Coal Company, St. Clairsvi , Ohio 

for Respondent, Youghiogheny and Ohio 

Coal Company. 

Judge Merlin 

This case is a petition for the assessment of a civil 

penalty filed by the Government against Youghiogheny and 

Ohio Coal Company for an alleged violation of 30 C.F.R. 

75.200. A hearing was held on December 15, 1981. 

. . ·, . 

At the hearing the parties agreed to the following 

stipulations: 

(1) The subject mine constitutes a coal 

mine, the products of which enter commerce or 

the operations or products of which affect 

commerce. Respondent operates and at all times 

pertinent to the citation at issue, operated 

the subject mine. Respondent and every miner 

employed in this mine, are subject to the 

provisions of the 1977 Act. 

(2) Jurisdiction of this case vests in 

the Federal Mine Safety and Health Review 

Commission. 

407 
(3) During 1979 this mine produced 

493,555 tons of coal. Respondent company 

produced one million three hundred and 

forty-five thousand, six hundred and 

thirty-one tons of coal, during the year 

1979. (Based upon this factor, I found that 

operator is large in size.) 

(4) Any penalty assessed herein, will. 

not affect respondent's ability to continue 

in business. 

(5) The inspector is, and at all times 

pertinent hereto was an authorized representative 

of the Secretary of Labor. 

(6) The operator's history of prior 

violations is moderate. 

(7) The alleged violation was abated in 

good faith. 

(8) All witnesses who will testify are 

accepted generally as experts in Mine Health 

and Safety. 

The subject citation dated May 27, 1980, charges a 

violation of 30 C.F.R. 75.200 under the following circumstances: 

The company's approved roof control plan 

was not being complied with in No. 29 room of the 

7 west off 2 south working section which the 

continuous mining machine was operating. The mine 

roof was broken from 2 to 10 inches in thickness 

for a distance of 18 feet and 8 feet in width in 

which roof mats were being used and the area had 

not been center bolted or other supports installed 

where subnormal roof conditions existed. 

The citation was abated in fifteen minutes. 

A modification to the citation was issued on June 3, 

1980, as follows: 

Citation No. 0783977 is being modified 

to show that the company had installed 3 additional roof mats as additional support in the 

area; however, the roof was still not adequately 

supported in that the broken area was hanging down 

408 
part: 

and resting on the roof mats in the middle part of 

that entry. This citation was terminated on 5-27-80. 

The operator's roof control plan provides in pertinent 

The roof support 

the minimum required. 

other support will be 

conditions require. 

specified is considered 

Additi0~al bolts or 

installed where 

The cited roof is a rectangular area of the dimensions 

set forth in the citation defined by a crack running all the 

way around and hanging downo Part of one side of this area 

is adjacent to one where a roof fall previously occurred 

(Tro 15, Op" Exho No" l)o Under the roof control plan roof 

mats are required to be placed on five-foot centers (Tro 

16) 0 In the affected area three extra mats were installed 

so that the mats were on 2 1/2 foot centers (Tro 16) o The 

inspector testified that when he originally issued the 

citation he did not realize that additional roof mats had 

been installed and that to take account of this, the modification was subsequently issued (Tro 24-25, 27-31) o At the 

hearing however, the inspector adhered to the position that 

the roof mats were not additional supports within the meaning 

of the roof control plan and that therefore, the plan was 

violated. I believe the inspector is wrong in this respecto 

The roof control plan quoted above, requires "additional 

bolts or other support'' where conditions require. The plan 

does not specify what other support should be used and more 

importantly, it does not rule out the use of roof mats. On 

the contrary, the general direction that roof bolts or other 

support are allowable indicates that mats are permissible. 

If the plan is to prohibit or require use of certain types 

of support under certain circumstances, the plan must say 

so. Not only does the plan not have any such provision, but 

the inspector and the operator's section foreman testified 

that the plan requires center bolts where rooms are going to 

be left standing over an extended period of time which was 

not the situation here (Tr. 41, 55). The fact that the plan 

explicitly mandates center bolts in certain cases demonstrates 

that where, as here, nothing is said, the plan cannot be 

interpreted to require such bolts~ 

The operator adopts a roof control plan and MSHA approves 

it. An inspector cannot, after the fact, read into the plan 

things which are not there and which the operator cannot be 

expected to know. Accordingly, I conclude there was no 

violation of the roof control plan. 

409 
Over and above the requirements of the roof control 

plan there is a general duty placed upon the operator to 

insure that the roof be adequately supported. On this 

matter the evidence is in conflict. The inspector expressed 

the view that because the mats did not have center bolts 

they did not support the middle of the entry (Tr. 32, 35). 

The inspector admitted that his determination that the mats 

were inadequate was a judgement call but the basis for that 

call is not apparent since he did not know how much weight 

was involved in the roof area covered by the mats (Tr. 36-37, 

38-39). The operator's section foreman was of the opinion 

that the roof mats did sufficiently support the midd of the 

entry (Tr. 52-54). The section foreman had one of his men 

test the roof and determined that only the immediate roof was 

broken and he stated that since the roof was hanging near the 

left side towards the adjacent fall area, not in the middle 

the stress was on the left side not in the middle (Tr. 54, 

56-58, 60). I find the section foreman's evidence persuasive. 

The section foreman 1 s evidence is not the only evidence 

in favor of the operator. The most persuasive evidence of 

record is that of a civil engineer who testified that 

according to an MSHA report (Op. Exh. No. 3) the roof mats 

could bear a 9,000 lb. load and that the straps were on 

foot centers the stress on the center of each strap 

would be 5700 lbs. and that therefore, in his opinion the 

strap would hold in the worst possible situation (Tr. 67). 

The engineer also explained how he determined the weight was 

5700 lbs. (Tr. 80). As already noted, the inspector did not 

know what the weight was (Tr. 36-37). A safety factor of 

1.5 to 2 is considered safe and the factor would be 1.6 on 

five foot centers (Tr. 68). Because of the additional 

straps, 2 1/2 foot centers were present here which would 

increase the safety factor. The civil engineer thought 

safety mats installed by the operator were adequate to hold 

this roof and that center bolts were not necessary (Tr. 78). 

He stated straps were better than center bolts because as 

long as the strap is pulled tight at the lip of the fall, it 

would prevent material from falling off and thereby provide 

an added measure of safety (Tr. 81). The Solicitor did not 

cross-examine the engineer and did not produce any contrary 

evidence in rebuttal. I find the engineer's testimony 

convincing and accept it. 

Based upon the testimony of the operator's witnesses 

I conclude the roof was adequately supported and that there 

was no violation of the mandatory standard. 

410 
ORDER 

In light of the foregoing, it is ORDERED that the 

Citation be VACATED and that the petition for assessment of 

civil penalty be DISMISSED. 

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: Certified Mail. 

Marcella L. Thompson, Esq., Office of the Solicitor, 

U.S. Department of Labor, 881 Federal Office Bldgo, 

1240 E. Ninth St.v Cleveland, OH 44199 

Robert C. Kota, Esq., Youghiogheny and Ohio Coal 

Company, P. O. Box 1000, St. Clairsville, OH 43950 

411 •v.s. GOVERNMENT PRINTING OFFICE I 1982 0-,61-638/4367