DECEMBER 1983 

Commission Decisions 

12-07-83 

12-08-83 

12-12-83 

Sewell Coal Company 

Rosalie Edwards v. Aaron Mining, Inc. 

MSHA/Milton Bailey v. Arkansas Carbona 

Administrative Law Judge Decisions 

12-07-83 

12-07-83 

12-07-83 

12-07-83 

12-12-83 

12-12-83 

12-12-83 

12-12-83 

12-12-83 

12-13-83 

12-14-83 

12-14-83 

12-15-83· 

12-15-83 

12-16-83 

12-19-83 

12-20-83 

12-21-83 

12-21-83 

12-22-83 

12-22-83 

12-22-83 

12-23-83 

12-27-83 

12-28-83 

12-28-83 

Cynthia Coal Co., Inc. 

Webster County Coal Corp. 

Ray Ward v. Volunteer Mining Corp. 

Brown Brothers Sand Company 

Independent Gravel Company 

Turner Brothers, Inc. 

Earth Coal Company, Inc. 

Rushton Mining Company 

Glen Munsey v. Smitty Baker Coal Co. 

lThiWA v. Bethlehem Mines Corp. 

U.S. Steel Mining Co., Inc. 

U.S. Steel Mining Co., Inc. 

Vesta Mining Company 

Albert J. Dicaro v. U.S. Fuel Company 

Billy K. Deel v. D.O.W. Coal Co. 

Southwestern Illinois Coal Corp. 

MSHA/M.Hogan & R.Ventura v .. Emerald Mines 

Kitt Energy Corporation 

Westmoreland Coal Company 

U.S. Steel Mining Co., Inc. 

Vulcan Materials Co. SE Division 

MSHA/Robt.Roland v. Oil Shale Constructors 

J.D. Mosley v. D.F.J. Coal Co., Inc. 

Kaiser Steel Corporation 

United States Steel Mining Co. 

Monterey Coal Company 

WEVA 79-31 

·WEST 80-441-DH 

CENT 81-13-D 

KENT 83-116 

KENT 83-216 

SE 82-55-D 

SE 83-42-M 

CENT 83-61-M 

CENT 83-9 

LAKE 83-32 

PENN 83-5 

NORT 71-96 

PENN 83-234-D 

PENN 82-306 

PENN 83-221 

PENN 83-171-R 

WEST 82-113-D 

VA 82-62-D 

LAKE 80-216 

PENN 83-141-D 

WEVA 82-363 

WEVA 83-237 

PENN 83-89 

SE 84-7-M 

WEST 83-90-DM 

KENT 84-15-D 

WEST 80-79 

PENN 82-218 

HOPE 79-323-P 

Pg. 2026 

Pg. 2035 

Pg. 2042 

Pg. 2059 

Pg. 2061 

Pg. 2064 

Pg. 2065 

Pg. 2069 

Pg. 2070 

Pg. 2079 

Pg. 2081 

Pg. 2085 

Pg. 2093 

Pg. 2097 

Pg. 2098 

Pg. 2109 

Pg. 2115 

Pg. 2123 

Pg. 2173 

Pg. 2174 

Pg. 2214 

Pg. 2216 

Pg. 2217 

Pg. 2219 

Pg. 2221 

Pg. 2223 

Pg. 2224 

Pg. 2238 

Pg. 2245 

COMMISSION DECISIONS 

DECEMBER 1983 

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

Secretary of Labor, MSHA v. U.S. Steel Mining Company, Docket No. PENN 83-63 

(Judge Broderick, October 25, 1983) 

Secretary of Labor, MSHA v. Turner Brothers, Inc., Docket No. CENT 83-12 

(Judge Moore, Nove~ber 22, 1983) 

There were no cases in which review was Denied during the month of December. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINI~TRATION (MSHA) 

v. 

SEWELL COAL COMPANY 

1730 K STREET NW, 6TH FLOOR. 

WASHINGTON, D.C. 20006 . 

December 7, 1983 

Docket No. WEVA 79-31 

DECISION 

This case requires us to examine further the relationship between 

modification and enforcement proceedings under the Federal Mine Safety and 

Health ·Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V. 1981). We have 

previously addressed the propriety oY-raising the issue of diminution of 

safety for the first time as a defense in an enforcement proceeding. 

Penn Allegh Coal Co., 3 FMSHRC 1392 (June 1981). In this case, which is 

before us a second time, we must examine the effect in an enforcement 

proceeding of findings concerning diminution of safety made by the Secretary 

of Labor in a modification proceeding. For the reasons that follow, we hold 

that under the circumstances of this case the findings in the modification 

proceeding are binding in the enforcement proceeding. 

On January 15, 1976, Sewell Coal Company was issued a notice of violation under the 1969 Coal Act, 30 U.S.C. § 801 et seq. (1976)(amended 1977), 

by a representative of the Secretary of the Interior. The notice of violation charged Sewell with operating a Galis 300 roof bolter without a canopy 

in violation of 30 C.F.R. § 75.1710-1. Prosecution of the case was continued 

by the Secretary of Labor after the Mine Act was enacted. The parties agreed 

that under the terms of the standard a canopy was required. The day before 

the notice of violation was issued, however, Sewell had filed a petition for 

a modification of the canopy standard with respect to the roof bolter. 1/ 

Sewell asserted in its petition that installation of a canopy would diminish 

the safety of its miners. 

1/ Sewell filed its modification petition under section 30l(c) of the 1969 

Coal Act. 30 u.s.c. § 86l(c)(l976)(amended 1977). This provision was replaced 

by section lOl(c) of the 1977 Mine Act, 30 u.s.c. § 8ll(c) (Supp. V 1981), 

which states in part: 

Upon petition by the operator or the representative of 

miners the Secretary may modify the application of any mandatory 

(footnote continued) 

2026 

83-12-3 
Prior to a decision on the merits in the modification case, the 

Secretary of Labor instituted this proceeding seeking a civil penalty 

for the noticed violation. Subsequently, in the modification proceeding, 

the Administrator for Coal Mine Safety and Health at the Department of 

Labor's Mine Safety and Health Administration ("MSHA") waived compliance 

with the standard at minimum mining heights of 48 inches or less in the 

working section. Sewell Coal Co., No. M76-131 (April 27, 1979). Thereafter, 

prior to hearing in the enforcement proceeding, the parties agreed to settle 

the case and the Secretary of Labor moved the Commission's administrative law 

judge to approve the settlement. The judge denied the settlement motion on 

the basis that there was no violation because the standard was "null, void and 

unenforceable." Sewell Coal Co., 1 FMSHRC 1379 (September 1979)(ALJ). 

We granted the Secretary's petition for review, reversed the 

judge's finding that the standard was invalid, and remanded the case. 

Sewell Coal Co., 3 FMSHRC 1402 (June 1981). We noted that, although a 

modification decision had been issued, the judge had provided "no clear 

discussion of the interrelationship between the factual matters at issue 

in [the] enforcement proceeding and those at issue in the modification 

case." 3 FMSHRC at 1414-15. Moreover, the judge's decision had not 

discussed the legal effect, if any, of the granted modification on the 

pending enforcement proceeding. We therefore remanded the matter to 

afford the parties an opportunity to present arguments concerning the 

effect of the modification on the civil penalty case. 3 FMSHRC at 1415. 

On remand, the parties again agreed to settle the matter and moved 

for the judge's approval. The judge issued an extensive order to show 

cause why the motion should not be denied and the matter dismissed. 

Sewell Coal Co., 3 FMSHRC 2578 (November 198l)(ALJ). The judge stated 

that it was more probable than not that when Sewell was issued the 

notice of violation it could not have installed a canopy on the roof 

bolter without diminishing safety. The judge expressed his tentative 

conclusion that an affirmative defense of diminution of safety was 

therefore available to Sewell, and ordered the parties to "present 

arguments addressing the issue of the availability of the defense of 

diminution of safety." 3 FMSHRC at 2590. 

footnote 1 cont'd. 

safety standard to a coal or other mine if the Secretary 

determines that an alternative method of achieving the 

results of such standard exists which will at all times 

guarantee no less than the same measure of protection 

afforded the miners of such mine by such standard, or 

that the application of such standard to such mine Will 

result in a diminution of safety to the miners in such 

a mine. [Emphasis added]. 

Section lOl(c) preserves the same bases for granting a variance that were 

contained in section 30l(c) of the 1969 Coal Act. Under the modification 

provisions of the Mine Act, the decision to grant or withhold a variance 

is made by the Secretary of Labor. The MSHA regulations implementing 

section lOl(c) provide for an initial decision by an Administrator of MSHA, 

with a right of appeal ultimately to the Assistant Secretary of Labor for 

Mine Safety and Health. 30 C.F.R. §§ 44.13-44.33. Sewell's modification 

petition was continued before the MSHA Administrator for Coal Mine Safety 

and Health. 

2027 
The Secretary responded that the judge had improperly raised the 

defense of diminution of safety sua sponte and, alternatively, that the 

defense could not be established with respect to the roof bolter. The 

Secretary asserted that in the modification proceeding the Administrator 

had not waived compliance with the safety standard at the mining height 

specifically at issue in the enforcement proceeding. That height, the 

Secretary asserted (and the parties subsequently agreed), was 50 inches. 

The Secretary argued that the judge could not, in effect, overrule the 

Administrator's decision. Sewell responded that for the reasons stated 

by the judge, the settlement should be denied and the matt~r dismissed. 

The judge again rejected the settlement. He held that he had 

properly raised the issue of diminution of safety, and concluded that 

the defense had been established. In response to the Secretary's assertion that he was attempting to overrule the Administrator's finding 

as to whether compliance diminished safety, the judge asserted: "[E]vidence in this record which was not before the Administrator established 

that, independent of the Administrator's decision, sufficient practical 

technology did not exist on the date of the alleged violation to warrant 

imposition of an obligation to install canopies." 3 FMSHRC at 2579 

(footnote omitted). Accordingly, the judge dismissed the case. 

3 FMSHRC at 2580. We then granted the Secretary's petition for 

discretionary review. 

We first consider whether an operator may raise a diminution of safety 

defense in an enforcement proceeding where it has already received a modification decision with respect to the same condition at issue in the enforcement case. The phrase "diminution of safety" in section lOl(c) of the Mine 

Act (n. 1, supra) serves as one of the following two bases for a determination by the Secretary that an operator may depart from otherwise mandated 

compliance with a standard: (1) if an alternative method of achieving the 

results of the standard exists with no loss in the measure of protection 

afforded to the miners by the standard; or (2) if application of the standard to the mine will diminish the safety of the miners. 

The reasons for providing for such departures in these circumstances 

are obvious. As to the first, modification provides a degree of operating 

flexibility while accomplishing the same level of miner protection. As to 

the second, Congress found "an urgent need to provide more effective means 

and measures for improving the working conditions and practices in the 

nation's •.. mines in order to prevent death and serious physical harm." 

30 U.S.C. § 80l(c). The key means for accomplishing this legislative goal 

was establishing a basic level of safety through statutory interim mandatory 

safety standards and requiring the Secretary to raise that level through the 

promulgation of improved standards. 30 U.S.C. § 80l(g)(l). vfuere, due to a 

mine's particular circumstances, compliance with a mandatory standard would 

have an effect opposite to that intended -- that is, where adherence to a 

standard would reduce miner safety -- logic dictates and Congress provided 

the modification procedures. 

2028 
As noted above, the decision as to whether compliance with a standard 

diminishes safety rests statutorily with the Secretary and his designee, in 

this case, ~he Administrator. Penn Allegh, 3 FMSHRC at 1397-98. We adhere 

to our previous holding that an operator is foreclosed from bypassing this 

statutory modification procedure and unilaterally determining to forego 

compliance with a mandatory standard. Id. Cf. General Electric Co. v. 

Secretary of Labor, 576 F.2d 558, 561 (3d Cir. 1978). 2/ The present 

case, however, concerns an operator that filed a modification petition 

prior to being cited and received a final modification decision from the 

Secretary prior to the administrative law judge's hearing in the enforcement proceeding. ~· Florence Mining Co., 5 FMSHRC 189 (February 1983), 

pet. for review filed, No. 83-3134, 3d Cir., March 15, 1983. We conclude 

that where, as here, an operator has applied for and received a modification on the grounds of diminution of safety, recognition of a narrow 

diminution of safety defense in a subsequently filed enforcement action 

is necessary to effectuate the purposes of the Mine Act and, properly 

applied, is compatible with its statutory scheme. 

Consequently, we hold that an operator may argue diminution of safety 

as a defense to the Secretary's allegation of a violation and request for 

imposition of a p~nalty under the following circumstances: (1) the operator 

petitioned for the modification of a standard and was subsequently cited for 

violating the standard; (2) the Secretary granted the modification but nonetheless continued the enforcement proceedings; and (3) the material 

circumstances encompassing the modification and the enforcement proceedings 

are identical. Therefore, where the operator's petition for modification 

has been granted by the Secretary, introduction of the modification decision 

and an unrebutted showing that the underlying conditions at issue in the 

enforcement proceeding are identical with those upon which the modification 

decision is based will establish a complete defense. If the defense is 

established, we will not find a violation or assess a penalty. For us to 

do so would be at odds with the Act's goal of assuring an improved level of 

safety because, under these circumstances, we would be penalizing the 

operator for having avoided a hazard to miners. 

2/ We realize that emergency situations may arise where the gravity of 

circumstances and presence of danger may require an immediate response by 

the operator or its employees, necessitating a departure from the terms of 

a mandatory standard without first resorting to the Act's modification 

procedures. In such conditions, an exception to the Act's modification and 

liability provisions may be necessary in order to further the Act's primary 

goal, the protection of miners. Penn Allegh did not present such a situation, 

nor does this case. Rather, these cases involve only the operator's ability 

to conduct safely routine mining operations on a continuing and regular basis. 

Therefore, we reserve for a case appropriately raising such an issue detailed 

consideration of any emergency exception to the general rules on modification 

and liab Hi ty. 

2029 
The Act's modification procedures must be accorded respect (Penn 

Allegh, 3 FMSHRC at 1397-98), and the diminution of safety defense is 

therefore a narrow one. Accordingly, we hold that the findings of the 

Administrator in the modification proceeding are conclusive with respect 

to the question of diminution of safety in the enforcement proceeding. 

If the modification was denied, the operator should exhaust its administrative and judicial remedies concerning the denial. Also, if the 

modification was denied but the circumstances have changed and the operator 

believes compliance will diminish safety, it should again seek a modification 

from the Secretary rather than ask the Commission in an enforcement proceeding 

to vacate a citation. Similarly, if the Secretary granted a modification 

and subsequently ci.ted the operator, he may refute a proffered diminution 

of safety by showing that the cited conditions are different from those 

encompassed by the modification decision. 

In this case, we will consider Sewell's diminution of safety defense 

because Sewell instituted a proceeding to modify the standard prior to 

being cited for the violation and received a final decision in that 

proceeding granting the petition for heights at or less than 48 inches. 3/ 

Thus, we turn to the question of whether Sewell's defense should be upheld. 

We first reject the Secretary's assertion that the issue of diminution 

of safety was waiyed because it was not pleaded initially by Sewell. We 

remanded this matter for the express purpose of consideration of "the legal 

effect of the grant of a modification petition [upon] a pending enforcement 

proceeding." Sewell's modification petition to which we referred was based 

upon an assertion of diminution of safety. Sewell Coal Co., 3 FMSHRC at 1415. 

The question of whether a failure to plead an affirmative defense constitutes 

a waiver must be decided on a case-by-case basis. A crucial consideration 

is whether the opposing party has been deprived of notice of the issue and 

thus has been hindered in its ability to prepare for and to participate in 

trial. We detect no lack of fair notice here. Not only did we put the 

Secretary on notice, but the judge also, in his order to show cause, set 

forth fully his views on the subject and gave the Secretary sixteen days 

to "present arguments addressing •.• the availability of the defense of 

diminution of safety in this case." Sewell Coal Co., 3 FMSHRC at 2586-90. 

We also reject the Secretary's assertion that the judge improperly 

raised the issue of diminution of safety sua sponte. In previous cases we 

have found that our judges, when reviewing a settlement, may examine the 

fundamental question of whether there is in fact a violation. Co-op Hining 

Co., 2 FMSHRC 3475, 3475-76 (December 1980); Olga Coal Co., 2 FMSHRC 2669, 

2770 (October 1980). The Mine Act requires us to oversee penalty settlements 

as a means of encouraging compliance. 30 U.S.C. § 820(k). Paying a penalty 

where there has been no violation does not promote that goal. Co-op Mining 

Co., 2 FMSHRC at 3476. Here the judge properly raised the question to 

determine whether the violation could stand. The thrust of our inquiry 

therefore is whether he correctly found it could not. 

3/ This case does not present the situation where an enforcement proceeding has been heard before the petition for modification has been 

finally resolved, and we leave for another day the question of the 

recognition of a diminution of safety defense under such circumstances. 

2030 
In his modification decision, the MSHA Administrator found that in the 

2 West section of Sewell's mine there would be inadequate clearance to permit 

safe use of a canopy on the Galis 300 roof bolter except where the mining 

height exceeded 48 inches. Thus, the Administrator waived compliance with th~ 

standard at or under mining heights of 48 inches. Despite the fact that the 

violation was cited at a mining height of 50 inches and the modification of 

the standard would appear to be inapplicable, the judge found that compliance 

at even 50 inches would diminish safety. 

The judge, as we have noted, referred to "evidence in [the] record, which 

was not before the Administrator." Sewell Coal Co., 3 FMSHRC at 2579. This 

evidence appears to be the Secretary's representation in his first motion to 

approve settlement that "in some instances the use of canopies on the Galis 

drills had caused injuries to employees" and that when the violation was cited 

technology to abate it was in the experimental stage. 3 FMSHRC at 2579 n.l. 4/ 

The judge also relied on the fact that the original notice of violation, which 

referred to a mining height of 55 inches, was subsequently amended to show a 

minimum mining height on the section of 50 inches. Id. Finally, the judge 

noted his own "accumulated expertise." 3 FMSHRC at 2587-88. 

We find no evidence in this record that leads us to conclude that the 

Administrator's finding with respect to diminution of safety should not 

apply. The Administrator's decision and the contested citation concern 

the same mine, the same section in that mine, and the same equipment. 

The Secretary and Sewell agree that the mining height was 50 inches. 5/ 

The facts upon which the Administrator based his findings are set forth 

in his decision: the mined height of the section, the condition of the 

roof and floor, and the clearance between the frame of the roof bolting 

machine and the bottom of the roof supports. Sewell Coal Co., No. M76-131 

(April 27, 1979), at 5. As we have indicated, if Sewell believes that 

these conditions have changed so that compliance at heights above 48 inches 

diminishes safety, Sewell should petition the Secretary for modification. 

Finally, to the extent the judge relied on the statement in the first 

settlement motion that when the notice was issued "technology was in. the 

experimental stage," we note that the Secretary's second motion on behalf 

of the parties expands upon this assertion and maintains that canopies were 

!!_/ In the second settlement motion, the Secretary stated that "canopies 

were available from the manufacturer of the Galis 300 roof bolter at the 

time [the violation was cited], but many operators were dissatisfied 

with this design and were seeking other alternatives or modifications to 

the design to improve its capabilities." Request for Settlement Approval, 

August 20, 1981, p. 1. 

5/ The original citation stated the height on the section averaged 

55 inches. The citation was subsequently modified by the inspector to 

state that the minimum mining height on the section was 50 inches. 

Sewell does not contest the accuracy of this modification. In its 

brief, Sewell states that the inspector modified the original citation 

to "show that the actual mining height was actually 50 inches." 

-2031 
in fact available from the manufacturer at the time of the violation. 

Sewell raised the feasibility issue in the modification proceeding, and 

the Administrator disposed of it by waiving compliance at mining heights 

at or below 48 inches. 

In light of the foregoing, we cannot affirm the judge's conclusion that 

the defense of diminution of safety bars this proceeding. We therefore reverse 

the judge's dismissal of this matter and his denial of the motion to approve 

settl~ment. 6/ 

Ordinarily, we would remand to the judge for further consideration of the 

settlement motion. However, because the contested notice of violation was 

issued over seven years ago, and in view of the fact that the case has been 

before the judge twice and is now before us for a second time, we deem it time 

to end the controversy • .£!_. Eastover Mining Co., 4 FMSHRC 1207, 1214 (July 

1982). A penalty has been proposed for the violation. We have reviewed the 

record in light of the statutory penalty criteria (30 u.s.c. § 820(i)), and 

find the proposed penalty appropriate in light of all the circumstances. 

Accordingly, the parties' second motion for approval of the settlement, 

agreeing to the proposed $25.00 penalty, is granted. 

~~~ 

6/ This result corresponds with that reached y the judge concerning the 

other violation that was originally at issue i this case. The Secretary 

also sought a penalty for a violation of 30 C.F.R. § 75.1710-l(a) with 

respect to a shuttle car, which was operating without a canopy at a mining 

height of 43 inches. As in the case of the roof bolter, the operator had 

petitioned for a modification with respect to the shuttle car prior to being 

cited for the violation. In the modification decision, the Administrator 

concluded that installation of a canopy on the shuttle car in mining heights 

of 48 inches or below would diminish safety. Sewell Coal Co., M76-131 

(April 27, 1979), at 14. The judge held that, based upon these facts and 

the Administrator's conclusion, the defense of diminution of safety was 

established. 3 FMSHRC at 2579. The Secretary did not seek review of this 

portion of the decision. 

2032 
Commissioner Lawson concurring: 

Although I am in most respects in agreement with my colleagues, 

certainly as to the result reached, and substantially as to the. 

reasoning underlying that result, I do not subscribe to their suggestion 

that undefined "emergency" situations may arise in which an operator is 

to be permitted to ignore mandatory standards. (Slip op., p. 4 n.2). 

Although--perhaps--dicta, the danger inherent in encouraging claims of 

emergency "exception(s)" to the clear mandate of the statute, including 

section lOl(c) thereof, neither assures an "improved level of safety" 

(slip op., p. 4) nor, without strict adherence to the requirements 

necessary to establish the narrow defense of diminution of safety, 

" ••• guarantee[s] no less than the same measure of protection afforded 

the miners ••• by such standard •••• " 30 U.S.C. § 8ll(c). 

A. E. Lawson,~mmissioner 

2033' 
Distribution 

Timothy W. Gresham, Esq. 

Fletcher A. Cooke, Es~. 

Sewell Coal Company 

P.O. Box 4000 

Lebanon, Virginia 24266 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Joseph Kennedy 

Federal Mine Safety & Health Review CQmmission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2'(l84 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

ROSALIE EDWARDS 

v. 

AARON MINING, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 8, 1983 

Docket No. WEST 80-441-DM 

DECISION 

This discrimination case arises under section 105(c)(3) of the 

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

seq. (1976 & Supp. V 1981). At issue is whether the failure to provide 

more suitable toilet facilities at the mine site, which failure led to 

the miner's resignation, constituted retaliatory action in response to 

repeated requests and.complaints by the miner concerning existing 

facilities. The administrative law judge concluded that the operator 

had constructively discharged the miner in violation of the Mine Act. 

Rosalie Edwards v. Aaron Mining, Inc., 3 FMSHRC 2630 (November 1981) 

(ALJ). On review, the operator challenges the judge's finding of discrimination. For the reasons that follow, we reverse. 

The facts are largely undisputed. The complaining miner, Rosalie 

Edwards, worked at Aaron Hining, Inc., as an assayer of gold samples 

from January 21, 1980 through about March 15, 1980. At the time that 

she accepted employment with Aaron there were no indoor or permanent 

toilet facilities on the mine site. Edwards had not inquired about such 

facilities when she was hired, but during her tenure she requested 

toilet facilities in every daily safety report she submitted, as well as 

in conversations with Aaron supervisory personnel. 

The only toilet facility on the mine site was an outhouse located 

about three-quarters of a mile from the lab in which Edwards worked. 

(Aaron had attempted to drill for water for permanent facilities, but 

its repeated efforts in this regard had been unsuccessful.) In order to 

reach the outhouse an employee of Aaron had to travel a single-lane road 

on which visibility was poor. The employee then had to climb under a 

barbed-wired fence and walk about a half a block down a hill to reach 

the outhouse. Edwards described the sanitary conditions in the outhouse 

as appalling and used the facility only once. In response to her complaints, Edwards testified that Aaron stated that it would install a 

suitable restroom soon. The lack of water in the area, however, 

presented obvious problems. 

2035 83-12-4 
After working at the mine for four weeks Edwards claimed to have 

developed a bladder infection, although no medical substantiation of 

this claim was provided. This apparently was linked to her determination not to use the outhouse on the mine site, but instead to wait from 

6:30 a.m. to 4:00 p.m. to use a toilet. She was out of work for a week 

claiming this was due to the asserted infection. When she ret·urned, she 

began to drive to her home and back once during each work day (a 20-mile 

and 70-minute round trip) to use the bathroom there. Aaron knew of the 

trips, did not object to her going, did not dock her pay for the time lost 

and, on two occasions, gave her gasoline for her car. After making this 

round trip for several weeks, Edwards told Aaron supervisory personnel that 

it was "very inconvenient" to go home daily. 

Edwards' last working day was Friday, March 15, 1980. On either 

March 16 or 17, 1980, Edwards resigned. She did so by going to the home 

of Aaron's general manager, where she complained once more about the 

lack of permanent or indoor toilets. She also gave him a letter stating 

that she was willing to return when Aaron had a water supply for permanent 

toilet facilities, and if Aaron increased her salary. The general manager 

offered to meet her salary demand, but Edwards refused to stay. ];./ 

On April 7, 1980, Edwards wrote to the Department of Labor's Hine 

Safety and Health Administration (MSHA) alleging discrimination under 

the Hine Act because of Aaron's failure to provide suitable toilet 

facilities. The Secretary of Labor investigated her complaint, found 

no violation of the Act, and declined to proceed on her behalf. On 

August 21, 1980, pursuant to section 105(c)(3) of the Mine Act, Edwards 

filed a complaint of discrimination with this independent Commission. 

30 U.S.C. § 815(c)(3). 

After the hearing, the Commission's administrative law judge concluded 

that Edwards' complaints about the lack of required sanitary facilities were 

protected activity, and that Edwards was constructively discharged by the 

operator while engaging in that activity. He based his conclusion of 

constructive discharge on a finding that Edwards' only reasonable alternative 

to working under unsafe and unhealthful conditions was to quit. In his 

view, her resignation under these facts was equivalent to being discharged. 

3 FMSHRC at 2633. We granted the operator's petition for discretionary 

review of the judge's decision. 

Under the Mine Act, a complaining miner establishes a prima facie 

case of prohibited discrimination by proving that he or she engaged in 

protected activity and that the adverse action complained of was motivated 

in any part by that activity. William A. Haro v. 11agma Copper Co., 4 

FMSHRC 1935, 1936-37 (November 1982); Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd 

on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

1/ Sometime in ~farch 1980, Edwards filed a claim for unemployment 

compensation with the State of Nevada. Aaron evidently claimed there 

was a toilet facility (the outhouse) in Edwards' work area. Although 

the State originally denied Edwards' claim, it awarded her benefits on 

appeal. The appeals referee found that Edwards left work voluntarily 

but with good cause, because Aaron failed to provide toilet facilities 

as required by federal regulation. 

2036 
1211 (3d Cir. 1981); and Secretary on behalf of Robinette v. United 

Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may 

rebut the prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no way motivated by protected 

activity. Haro, 4 FMSHRC at 1937; Robinette, 3 FMSHRC at 818, n. 20. 

We first consider whether Edwards engaged in protected activity. 

The undisputed evidence shows that Edwards complained repeatedly, both 

orally and in writing, about what she reasonably believed were unhealthful conditions. The operator concedes that "restroom facilities 

at Aaron Mining were less than adequate." Therefore, we affirm the 

judge's conclusion that Edwards' complaints were protected and conclude 

that she established the first element of a prima facie case of discrimination. 

We further conclude, however, that Edwards failed to establish the 

second element of a prima facie case, i.e., she did not show that there 

was adverse action by the operator motivated in any part by her safety 

complaints. Aaron did not take any retaliatory action. The operator 

did not fire, demote, transfer, or harass her. Even if Aaron's failure 

to provide the requested toilet faci1ities is viewed as an adverse 

action, we find no evidence that this failure was motivated in any way 

by Edwards' protected complaints. As we noted earlier, there were no 

permanent toilets when Edwards was hired. According to the substantial 

and uncontroverted evidence of record, Aaron unsuccessfully tried to 

drill for water for permanent facilities and to obtain portable facilities. 

Further, Aaron accommodated Edwards by permitting her to leave the mine 

site daily for extended periods to travel to her house and, on two 

occasions, replaced gasoline consumed on those trips. There is no 

indication that Aaron tried to force Edwards to quit. To the contrary, 

the operator tried to persuade her to remain by offering to meet her 

demand for a salary increase. In our view, the record does not establish 

that Aaron's failure to remedy the condition complained of by Edwards 

was motivated in any part by Edwards' protected activity. Thus, under 

Mine Act discrimination analysis, the judge's finding of a violation 

cannot be upheld. J:./ 

Application of the principles of "constructive discharge" does not 

change the result. For the reasons just stated we find no evidence that 

Aaron created or maintained the existing toilet facilities because of 

the exercise by Edwards of any rights protected by the Mine Act. No proof 

of an impermissible motive having been shown, a constructive discharge in 

violation of the Act is not established. Cf. NI,RB v. Haberman Constr. Co. 

641 F.2d 351, 358 (5th Cir. 198l)(en bane)-.- Accord, Cartwright Hardware v. 

NLRB, 600 F.2d 268, 270-71 (10th Cir. 1979); J.P. Stevens and Co. v. NLRB, 

461 F.2d 490, 494 (4th Cir. 1972); Montgomery Ward v. NLRB, 377 F.2d 452, 

458-459 (6th Cir. 1967); ~ BNA 2 The Developing Labor-T:aw 210-11 (2d ed. 

1983). Thus, we hold that Aaron's failure to provide toilet facilities, 

and Edwards' resulting quit, do not constitute discrimination in 

violation of section 105(c). 

2/ It is important to note that the issue in this case is not whether 

Aaron violated any mandatory standard by its failure to provide adequate 

toilet facilities. Rather, the question we address is whether that failure 

constituted discrimination under section 105(d) of the Mine Act. 

2037 
We note that Edwards was not without a statutory remedy in the 

situation she faced. Section 103(g)(l) of the Mine Act affords a miner 

the right to obtain an immediate inspection by the Secretary of Labor's 

Mine Safety and Health Administration when the miner has reasonable 

grounds to believe that a violation of the Mine Act or of a mandatory 

health or safety standard exists. 30 u.s.c. § 813(g)(l)._ The record in 

this case suggests reasonable grounds for Edwards to believe that a 

violation of 30 C.F.R. § 56.20-8, a mandatory health standard, existed. 3/ 

Thus, through the procedure available under section 103(g)(l), Edwards 

could have obtained an MSHA inspection of Aaron's toilet facilities. 

Had the Secretary's representative found those facilities to be in 

violation, he could have utilized the full array of available statutory 

enforcement powers, including the issuance of citations and withdrawals 

orders and the propos.ed assessment of penalties. Here, Edwards did not 

set this statutory scheme in motion, but rather took the personal r~course 

of resigning her job. !±_/ 

Accordingly, we reverse the judge's finding of discrimination, 

vacate his award of back pay, interest, and incidental ·expenses, and 

vacate his assessment of penalty. 

Richard V. 

-_:.· 

A. E. Lawson, Commissioner 

1_/ 30 C.F.R. § 56.20-8 provides: 

Mandatory. Toilet facilities shall be provided at 

locations that are compatible with the mine operations 

and that are readily accessible to mine personnel. The 

facilities shall be kept clean and sanitary. Separate 

toilet facilities shall be provided for each sex where 

toilet rooms will be occupied by no more than one person 

at a time and can be locked from the inside. 

4/ Edwards testified that at the time of her 'resignation, she was not 

aware of the relevant mandatory standard, 30 C.F.R. § 56.20-8. However, 

there is no indication that she was unaware of MSHA's responsibility for 

inspecting mines. Indeed, she was sufficiently aware of MSHA's responsibil~ties to contact that agency about the alleged discrimination two weeks 

after her resignation. 

2038 
Commissioner Jestrab, specially concurring: 

I concur in the result reached in the decision of my esteemed 

colleagues reversing the order of the Administrative Law Judge. In my 

opinion, however, the holding here does not change the Commission's rule 

on work refusal. Pratt v. River Hurricane Coal Company, 5 FMSHRC 1529, 

1533 (September 29, 1983) and cases cit therein • .r ,.. , 

_,.'_. / -~ /Je::.;···<·' 11· . / I in .. / ·'/ ;: '\.:) .I_//, ·"- . ~ :fi ' 

2039 
Commissioner Nelson, concurring: 

I agree with the majority's analysis of this case and I concur 

in its holding that Rosalie Edwards was not discharged, or in any way 

discriminated against, in violation of section lOS(c) of the Mine Act. 

30 U.S.C. §815(c). Nevertheless, I believe that under the facts of 

this case the majority opinion may be read by some as arriving at an 

overly harsh result~· In my view, such a reading would be incorrect. 

Certainly the factual recitation elicits considerable sympathy for 

Rosalie Edwards; in any event, the Commission must decide cases on 

the bases of the law and the facts -- not on the basis of sympathy or 

empathy. Were it otherwise, the result in this case with good reason 

might be different. Thus, despite the absence of adequate toilet 

facilities at the mine (prior to and during the tenure of Rosalie Edwards), 

a case of unlawful discrimination was not established here and under the 

statute the operator must prevail. 

~~ L. Clair Nelson 

2040 
Distribution 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Cheryl A.Skigin, Esq. 

Woodburn, Wedge, Blakey and Jeppson 

Sixteenth Floor 

First Interstate Bank Bldg. 

One East First Street 

Reno, Nevada 89505 

Rosalie Edwards 

Starr Route 

Beowawe, Nevada 89821 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review CoIIllllission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

2041 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 12, 1983 

On behalf of MILTON BAILEY Docket No. CENT 81-13-D 

v. 

ARKANSAS-CARBONA COMPANY 

and 

MICHAEL WALKER 

DECISION 

This discrimination case presents four issues: whether the Commission's 

administrative law judge abused his discretion in severing the Secretary of 

Labor's request for a civil penalty from the complaint of discrimination; 

whether the judge erred in awarding 6% interest on the back pay award; 

whether he erred in tolling the back pay award on the date the Secretary 

filed a complaint on Bailey's behalf; and whether he erred in refusing to 

award Bailey tuition and certain miscellaneous expenses. 

For the reasons that follow, we hold that the judge did not abuse his 

discretion in this case when he severed the request for a civil penalty from 

the discrimination complaint, but we also announce our intention to amend 

Commission Procedural Rule 42, 29 C.F.R. § 2700.42, to end the need for such 

severance in future cases. We adopt as the Commission's interest rate formula 

for back pay awards the interest formula used by the National Labor Relations 

Board--that is, interest set at the "adjusted prime rate" announced semiannually by the Internal Revenue Service for the underpayment and overpayment of taxes. We hold that the judge erred in assessing 6% interest on the 

back pay award and remand for recalculation of the award pursuant to the 

computation rules announced in this decision. We reverse the judge's order 

tolling back pay on the date of the Secretary's complaint on behalf of Bailey. 

We continue the award until the date Bailey informed the Secretary he did not 

wish reinstatement, and additionally remand for determination of the date when 

that notification occurred. Finally, we affirm the judge's holding that 

Bailey was not entitled to payment of college tuition and related expenses. 

2042 83-12-6 
I. Factual and procedural background 

We briefly summarize the facts, which are undisputed, as background 

for our discussion of this case. Arkansas-Carbona Company, a joint venture, 

operated a small surface anthracite coal mine in Dardanelle, Arkansas at 

the relevant time. Milton Bailey was employed by Arkansas-Carbona from 

May 13, 1980, until his discharge on June 27, 1980. Bailey was the company's 

safety director and he earned $1,000 per month. Michael Walker was the 

president of one of the firms comprising the Arkansas-Carbona joint venture, 

and after June 13, 1980, took over control of mine operations at the mine 

site. On June 27, 1980, Bailey complained to Walker that the mine's first 

aid kit, which had been moved from the main office to a screened porch, 

should remain in the office to prevent its exposure to dust. Walker contended the kit was in a dustproof container. An argument ensued which 

resulted in Bailey's discharge. 

On October 20, 1980, the Secretary of Labor filed a discrimination complaint before this independent Commission on behalf of Bailey against 

Arkansas-Carbona and Michael Walker. 1/ His complaint alleged that Bailey was 

unlawfully discharged for exercising rights protected by section lOS(c)(l) of 

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

(1976 & Supp. V 1981). The relief sought included back pay with-g% interest, 

and reinstatement on the same shift with the same or equivalent duties at a 

rate of pay "presently proper" for the position. The Secretary's complaint 

also requested "an order assessing a civil penalty of not more than $10,000 

against [the operator] for [the] violation of section lOS(c) of the Act." 

30 U.S.C. § 815(c)(Supp. V 1981). On January 22, 1981, the Secretary filed 

a motion to amend his discrimination complaint. The motion stated in part: 

"Subsequent to his filing of the complaint the Secretary was informed by 

complainant Bailey that he did not wish to be reinstated by respondents and 

that in lieu of reinstatement he would accept tuition for one year of 

college plus an allowance for expenses." 

The Commission's administrative law judge first held that Bailey's 

complaint concerning the first aid kit on the day of his discharge was 

protected activity and that Bailey's discharge was motivated in part by 

that protected activity. Thus, the judge held that a prima facie case of 

discrimination, that is, adverse action motivated in part by protected 

activity, was proved. 3 FMSHRC 2313, 2318-19 (October 198l)(ALJ). The 

judge then examined each non-discriminatory ground the operator presented 

as the cause of Bailey's termination and concluded, "Neither singularly 

nor in combination do Respondents' contentions establish that Respondents 

would have discharged Complainant for the reasons given." 3 FMSHRC at 2319. 

Therefore, the judge determined that Arkansas-Carbona's discharge of Bailey 

violated section lOS(c)(l) of the Mine Act. 30 U.S.C. § 815(c)(l). 

The judge awarded Bailey back pay with 6% interest from the date 

of discharge until October 19, 1980, one day before the Secretary's 

complaint was filed. 3 FMSHRC at 2323. Because the complaint on behalf 

of Bailey was amended January 22, 1981, to request one year's college 

tuition and rela.ted expenses in lieu of reinstatement, the judge applied 

1/ We refer to the respondents collectively as "the operator." 

2043 
Rule 15(c), Federal Rules of Civil Procedure, and concluded that the 

amendment related back to October 20, 1980, the date of the Secretary's 

complaint. l:_/ Therefore, the judge concluded that Bailey did not request 

reinstatement from that date and that, accordingly, the obligation for 

back pay ceased on that date. 3 FMSHRC at 2321. The judge also declined 

to order the payment of one year's college tuition and expenses because 

Bailey "failed to establish any entitlement to an award of 1 year of 

college tuition." 3 FMSHRC at 2322. The judge also ordered expunging 

of all references to "this matter" from Bailey's employment record. 

In addition, the judge severed MSHA's proposed assessment of a 

civil penalty from this proceeding, and he ordered MSHA to proceed under 

Commission Procedural Rule 25, 29 C.F.R. § 2700.25. 3/ At the outset of 

the administrative hearing, the judge explained the reason for the severance: 

"I will sever the civil penalty proceeding because there has not been the 

required administrative processing of the proposal through the notification 

to the respondents of the amount of the proposed penalty or the opportunity 

to discuss this matter with the District Manager's office." Tr. 4. 

II. Severance of the civil penalty from the proceedings 

involving the complaint of discrimination 

We first consider the question of how civil.penalties for violations of 

section 105(c) should be proposed and assessed in cases where the Secretary 

files a complaint on behalf of a miner, and then whether the judge erred in 

severing the penalty proceeding. 

Civil penalties are assessed under the Mine Act to induce compliance 

with the Act and its standards. See, for example, S. Rep. No. 181, 95th 

Cong., 1st Sess. 40-41 (1977) (''S. Rep."), reprinted in Subcommittee on 

Labor, Senate Committee on Human Resources, 95th Cong., 2d Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 

628-29 (1978) ("Legis. Hist."). Penalties are mandatory for violations of 

l:_/ Rule 15(c), Fed. R. Civ. P., provides in part: 

Relation Back of Amendments. Whenever the claim or 

defense asserted in the amended pleading arose out of 

the conduct, transaction, or occurrence set forth or 

attempted to be set forth in the original pleading, the 

amendment relates back to the date of the original pleading. 

l/ Commission Procedural Rule 25 provides: 

The Secretary, by certified mail, shall notify the operator 

or any other person against whom a penalty is proposed of: 

(a) the violation alleged; (b) the amount of the penalty proposed; and (c) that such person shall have 30 days to notify 

the Secretary that he wishes to contest the proposed penalty. 

If within 30 days from the receipt of the Secretary's notification or proposed assessment of penalty, the operator or other 

person fails to notify the Secretary that he intends to contest the proposed penalty, the Secretary's proposed penalty 

shall be deemed to be a final order of the Commission and 

shall not be subject to review by the Commission or a court. 

2044 
the Act and its standards. The Act separates the procedures for civil 

penalty assessment between the Secretary and the Commission. The 

Secretary proposes the penalty he wishes assessed for a violation and 

the Commission assesses a penalty of an appropriate amount. See 

Sellersburg Stone Co., 5 FMSHRC 287, 290-92 (March 1983), pet:-for 

review filed, No. 83-1630, 7th Cir., April 8, 1983; Tazco, Inc., 

3 FMSHRC 1895, 1896-98 (August 1981). !±_/ 

This bifurcation of functions is set forth in sections 105 and 110 of 

the Act. 30 U.S.C. §§ 815 & 820 (Supp. V 1981). Section 105(a) requires the 

Secretary to take certain steps to notify an operator of the civil penalty 

"proposed to be assessed under section llO(a) for the violation cited." 

30 u.s.c. § 815(a). Section llO(a) provides, in turn, for penalty assessments 

of not more than $10,000 per violation. 30 U.S.C. § 820(a). Section llO(i) 

provides, "The Commission shall have authority to assess all civil penalties 

provided in this Act." 30 U.S.C. § 820(i). After listing the six statutory 

penalty criteria, section llO(i) concludes, "In proposing civil penalties under 

this Act, the Secretary may rely upon a summary review of the information 

available to him and shall not be required to make findings of fact concerning 

the above [six] factors." ]./ 

Section 105(a) states that the civil penalty propo$al procedures set forth 

for the Secretary therein are only invoked "[i]f, after an inspection or 

investigation, the Secretary issues a citation or order under section 104 

[30 U.S.C. § 814]." 30 U.S.C. § 815(a). 6/ The Secretary must notify an 

operator "within a reasonable time" of the penalty he proposes. If the 

operator chooses to contest a proposed penalty, the Secretary must 

"immediately advise" the Commission so that a hearing can be scheduled. 

30 U.S.C. § 815(d). The statutory procedures for prompt notification 

!!_/ When penalties proposed by the Secretary are not contested, however, 

a proposed civil penalty is not actually assessed but is deemed to be a 

final order of the Commission, as if the Commission had assessed it. 

30 U.S.C. § 815(a). See also Commission Procedural Rule 25 (n. 3 supra). 

5/ The words "shall be assessed a civil penalty by the Secretary" in 

section llO(a) must be read in pari materia with sections 105(a) and 

llO(i). Although section llO(a) uses the language "shall be assessed a 

civil penalty by the Secretary," the express language of sections 105(a) 

and llO(i) makes clear that this Secretarial function is one of proposal, 

not disposition. The legislative history bears out this reading of 

section llO(a). Conf. Rep. No. 461, 95th Cong., 1st Sess. 58 (1977) 

reprinted in Legis. Hist. 1336; S. Rep. 43, 45-46, reprinted in Legis. 

Hist. 631, 633-34. Thus, the reference to "shall be assessed11in 

section llO(a) means "shall be subject to a proposed assessment of a 

civil penalty by the Secretary." See Sellersburg Stone Co., supra. 

!?_/ Section 104, 30 U.S.C. § 814 (Supp. V 1981), contains the procedures 

through which an operator's violations of the Act or its standards are 

enforced. Section 104(a) makes clear that citations shall be issued for 

violations of "this Act, or any mandatory health or safety standard, rule, 

order, or regulation promulgated pursuant to this Act." 30 U.S.C. § 814(a). 

2045 
and contest of a proposed civil penalty assessment re.fleet Congress' belief 

that penalty assessment had lagged under the 1969 Coal Act, 30 U.S.C. § 801 

et seq. (1976)(amended 1977), and its consequent desire to speed the process. 

ThuS:-the thrust of the penalty procedures under the Mine Act is to reach a 

final order of the Commission assessing a civil penalty for violations 

without delay. 

Cases involving violations of the discrimination provisions, however, 

are not initiated with the issuance of a citation or order under section 

104 but, rather, with filing of special complaints before the Commission 

under sections 105(cj(2) or 105(c)(3). 30 U.S.C. §§ 815(c)(2) & (3). 

These two statutory subsections provide for complaint by the Secretary 

if he believes discrimination has occurred, or complaint by the miner 

if the Secretary declines to prosecute. 

It is clear that a penalty is to be assessed for discrimination in 

violation of section 105(c)(l). The last sentence of section 105(c)(3) 

states, "Violations by any person of paragraph (1) shall be subject to 

the provisions of sections 108 [30 U.S.C. § 818] and section llO(a).'' 

30 U.S.C. § 815(c)(3). 7/ Section llO(a) requires the Secretary to 

propose penalties to be-assessed for violations of the Act. Neither 

section 105(c) nor section llO(a), however, states how and when the 

Secretary is to propose a penalty for a violation of section 105(c)(l). 

The Secretary's regulations in 30 C.F.R. Part 100 set forth "criteria 

and procedures for the proposed assessment of civil penalties under section 

105 and 110 of the [Mine Act]." 30 C.F.R. § 100.1. 8/ Section 100.5 lists 

a number of "categories [of violations which] will be individually reviewed 

to determine whether a special assessment is appropriate" including 

"discrimination violations under section 105(c) of the Act." J_/ 

In spite of this reference to discrimination cases, none of the Part 100 

regulations specifies how the Secretary shall propose a civil penalty when he 

files the complaint of discrimination, and it does not appear that the 

Secretary contemplated that his administrative review procedures for proposed penalties should apply to a determination that an operator had violated 

7/ Section 108 permits injunctive relief 4nd is not relevant to the 

Issues presented in this case. 

~/ In this analysis, for convenience, we will refer to the current 

Part 100 regulations, which became effective May 21, 1982. They are 

substantially similar to those in effect when the judge's decision 

issued. The changes made do not affect our analysis, and we would 

reach the same conclusions under either version. 

J_/ A review of the discrimination cases adjudicated by this Commission indicates that the Secretary has used the section 100.5 special 

assessment procedure in discrimination cases only when the miner has 

proceeded on his own behalf pursuant to section 105(c)(3) of the Act 

and prevailed, or when, as here, the judge has severed the penalty 

proceedings from the discrimination case. In other discrimination 

cases, the Secretary has requested a penalty in his complaint of 

discrimination. 

2040 
section 105(c)(l). Similarly, the Commission's procedural rules do not 

specifically address penalty procedures for alleged violations of section 

105(c)(l). Our rules more generally require the Secretary to notify the 

operator of "the violation alleged" and the penalty proposed and to afford 

the operator 30 days in which to notify the Secretary if it wishes to contest 

the proposal. Commission Procedural Rule 25 (n. 3 supra). See also 

Commission Procedural Rules 26 through 28, 29 C.F.R. §§ 2700.26 through 28. 10/ 

The Secretary argues that the penalty proposal procedures in section 

105(a) of the Hine Act and Commission Procedural Rule 25 apply only to 

citations and orders issued under section 104. Violations of the discrimination section, the Secretary urges, are subject only to the provisions expressly mentioned in section 105(c) itself. The Secretary relies 

on the last sentence in section 105(c)(3), which states that violations 

of section 105(c)(l) "shall be subject to the provisions of sections 108 

[injunctions] and llO(a)." 30 U.S.C. § 815(c)(3). He argues that because 

section llO(a) contains no reference to section 104 or to section 105(a), 

the assessment proposal procedures required therein need not be applied 

in penalty proposals under section 105(c)(3). 

Thus, from the language of sections 105(c)(3) and llO(a), the Secretary 

argues that it is not necessary to have separate penalty proceedings in 

discrimination c?ses. Rather, he contends that penalties should be assessed 

by Commission judges when liability is determined--that is, when an operator 

is found in a discrimination proceeding to have violated section 105. The 

Secretary asserts he is "always" prepared to provide the information on the 

penalty criteria in section llO(i), and that an administrative law judge will 

never be more competent to decide the penalty question than at the close of 

a discrimination case in which the judge has determined the existence of a 

violation. 

10/ Commission Procedural Rules 40 through 44 (29 C.F.R. §§ 2700.40 

through 44) deal with discrimination complaints, but do not resolve the 

issue of how a penalty is to be proposed. Rule 42 requires that a 

discrimination complaint include, among other things, "a statement of 

the relief requested." The rule tracks section 105(c)(2) of the Act, 

which requires the Secretary in his complaint to "propose an order 

granting appropriate relief." 30 U.S.C. § 815(c)(2). The Secretary 

contends that a civil penalty is part of the "relief" he may request 

in the complaint, and that inclusion of such a request in a complaint 

conforms to Rule 42 and section 105(c)(2). We conclude, however, that 

"relief" as used in section 105(c) and Rule 42 indicates only those 

remedies available to make the discriminatee whole. Section 105(c)(3) 

states in part, "The Commission shall ••• issue an order •.. granting ••• 

relief ••• including ••• rehiring or reinstatement ••• with backpay and 

interest or such remedy as may be appropriate." 30 U.S.C. § 815(c)(3). 

The legislative history also supports this reading of "relief." See 

Secretary on behalf of Dunmire and Estle v. Northern Coal Company-,~ 

4 FMSHRC 126, 142 (February 1982), citing to S. Rep. 37, reprinted in 

Legis. Hist. 625. A civil penalty, on the other hand, is not intended 

to compensate the victim but rather to deter the operator's future 

violations. 

2047 
We agree with the Secretary that it is desirable to adjudicate in one 

proceeding both the merits of the discrimination claim and the civil penalty. 

The Mine Act emphasizes, "Proceedings under [section 105(c)] shall be 

expedited by the Secretary and by the Commission." 30 U.S.C. § 815(c)(3). 

Because the last sentence of section 105(c)(3) references penalty proposals 

under section llO(a), we conclude that penalty proposals for section 105(c) 

violations are to be expedited as well. The express statutory intent to 

expedite these proceedings is furthered by having the Secretary avoid dual 

proceedings and incorporate his penalty proposal in his discrimination 

complaint. 

We also conclude, however, that it is incumbent upon the Secretary in a 

combined proceeding to set forth in the discrimination complaint the precise 

amount of the proposed penalty with appropriate allegations concerning the 

statutory criteria supporting the proposed amount. Experience makes us 

somewhat skeptical about the Secretary's assertion that he has "always" been 

prepared to present evidence on penalty criteria. Formal penalty allegations 

in the complaint better afford operators adequate notice of penalty issues in 

discrimination cases. Because the Secretary may "rely on a summary review of 

the information available to him" in proposing penalties (30 U.S.C. § 820(i)), 

the penalty allegations in the discrimination complaint may be stated in summary 

fashion. 

In this ca.se, the Secretary's naked request in his complaint for a penalty 

of "up to $10, 000" is scarcely a penalty proposal at all. Henceforth, we shall 

require in these cases that the Secretary propose in his complaint a penalty in 

a specific dollar amount supported by information on the section llO(i) criteria 

for assessing a penalty. This new rule shall apply to cases pending with our 

judges as of the date of this decision or filed with the Commission as of, or 

after, the date of this decision. Leave to amend complaints to add the penalty 

allegations shall be freely granted. Thus, the operator will be informed not 

only of the dollar amount proposed, but also the basis therefor. The parties 

will then be better prepared to litigate at the hearing any disputes concerning 

the penalty sought. 

Because the Secretary did not provide in his complaint sufficient notice 

to the operator of the amount of the penalty sought and the basis therefor, we 

cannot say that the judge erred in severing the penalty proposal in order to 

provide such notice to the operator. Nor do we see the utility of a remand 

to allow the Secretary to amend his complaint. The judge's approach to the 

Secretary's inadequate proposal is consistent with the Act's notice requirements and with the position we now enunciate. Accordingly, we affirm the 

judge's severance of the penalty proposal from the underlying discrimination 

complaint. QI 

11/ We are presently in the process of adopting an interim amended Rule 42, 

which will reflect our resolution of the penalty issue. We also note that 

this case does not raise, and we do not reach, the question of how penalties 

should be proposed when the Secretary does not file a discrimination complaint 

on the miner's behalf and the miner files his own complaint under section 

105(c) (3). 

2048 
III. The rate and computation of interest on back pay awards 

The next question in this case is whether the judge erred in assessing 

6% interest on the back pay award. The remedial goal of section 105(c) is to 

"restore the [victim of illegal discrimination] to the situation he would have 

occupied but for the discrimination." Secretary on behalf of Dunmire and 

Estle v. Northern Coal Co., 4 FMSHRC at 142. As we have previously observed, 

"'Unless compelling reasons point to the contrary, the full measure of relief 

should be grartted to [an improperly] discharged employee."' Secretary on 

behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982), 

quoting Goldberg v. Bama Mfg. Corp., 302 F.2d 152, 156 (5th Cir. 1962). 

Included in that "full measure of relief" is interest on an award of 

back pay. Section 105(c)(3) of the Mine Act expressly includes interest 

in the relief that can be awarded to discriminatees, while leaving it up 

to the discretion of the Commission to determine the exact contours of 

such an award. 12/ The Senate Committee that drafted the section which 

became section lOS(c) stated in its report: 

It is the Committee's intention that the Secretary 

propose, and 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, backpay with interest, and recompense for any special 

damages sustained as a result of the discrimination. 

S. Rep. 37, reprinted in Legis. Hist. 625 (emphasis added). 

Our judges have awarded interest at rates varying from 6% per 

annum to 12.5% per annum and have used a variety of methods to compute 

interest awards. At least two of our judges have adopted the NLRB's rate 

of interest on back pay awards. See, e.g., Bradley v. Belva Coal Co., 

3 FMSHRC 921, 925 (April 198l)(ALJ) aff'd in part, remanded in part on 

other grounds, 4 F11SHRC 982 (June 1982); Secretary on behalf of Smith et al. 

v. Stafford Construction Co., 3 FMSHRC 2177, 2199 (September 198l)(ALJ) aff'd 

in part, rev'd in part on other grounds, 5 FMSHRC 618 (April 1983), pet. for 

review filed, No. 83-1566, D.C. Cir., May 27, 1983. The experience of our 

1l:_/ Section 105(c)(3) provides in part: 

The Commission ••• shall issue an order, ••• if the 

charges [of discrimination] are sustained, granting 

such relief as it deems appropriate, including, but 

not limited to, an order requiring the rehiring or 

reinstatement of the miner to his former position 

with back pay and interest or such remedy as may 

be appropriate. 

30 U.S.C. § 815(c)(3). 

2049 
judges in this area has greatly aided our evaluation of different methods 

of assessing interest. It has also led us to the conclusion that it is time 

to adopt a uniform method of computing interest so that all discriminatees 

will be treated uniformly when they are awarded back pay under the Mine Act. 

The miner has not only lost money when he or she has not been paid in 

violation of section 105(c), but has also lost the use of the money. As the 

NLRB has stated with regard to interest on back pay awards under the National 

Labor Relations Act, "The purpose of interest is to compensate the discriminatee 

for the loss of the use of his or her money." Florida Steel Corp., 231 NLRB 

651, 651 (1977). Thus, in selecting an interest rate, we have considered the 

potential cost to the miner both as a "creditor" of the operator, and as a 

potential borrower from a lending institution under real economic conditions. 

We have therefore sought a rate of interest that compensates the discriminatee 

fully for the loss of the use of money. In addition, we have attempted to 

select a rate of interest flexible enough to reflect economic and market 

realities, but not so complex in application as to place an undue burden on 

the parties and our judges when attempting to implement it. 

For all of these reasons we adopt the interest rate formula used by the 

NLRB: interest set at the "adjusted prime rate" announced semi-annually by the 

Internal Revenue Service under 26 U.S. C .A.· § 6621 (West Supp. 1983) as the 

interest it applies on underpayments or overpayments of tax. The "adjusted 

prime rate" of the IRS is the average predominant prime rate quoted by 

commercial banks to larger businesses as determined by the Federal Reserve 

Board and rounded to the nearest full percent. 26 U.S.C.A. § 6621 (West 

Supp. 1983). Under the Tax Equity and Fiscal Responsibility Act of 1982, 

Pub. L. 97-248, § 345, 96 Stat. 636 (to be codified at 26 U.S.C. § 6621), 

the adjusted prime rate must be established semi-annually: by October 15 

based on the prime rates from April 1 to September 30, and by April 15 

based on the prime rates from October 1 to March 31. The rate announced 

in October becomes effective the following January 1, and the rate 

announced in April becomes effective the following July 1. 

We agree with the NLRB that the IRS adjusted prime rate comes closest 

to compensating the miner fully for loss of the use of money. On the one 

hand, if the miner had the money, he or she could invest it or save it and 

probably earn less than the prime rate. On the other hand, if the miner has 

to borrow money because he or she is deprived of a paycheck, the rate of 

interest most likely would be higher than the prime rate. In these 

circumstances, we concur with the NLRB that the IRS formula "achieves 

a rough balance between that aspect of remedial interest which attempts to 

compensate the discriminatee or charging party as a creditor and that which 

attempts to compensate for his loss as a borrower." Olympic Hedical Corp., 

250 NLRB 146, 147 (1980). This "rough balance" in our view achieves the goal 

of making the miner whole for the loss of the use of money. 

The IRS adjusted prime rate is also attractive for pragmatic reasons. 

It is a per annum rate adjusted semi-annually, based on the prime rates for 

the six months preceding its calculation. In this way, the rate reflects 

economic conditions with reasonable accuracy. Its announcement well in 

advance of the effective date offers notice to all parties and our judges. 

Cf. Olympic Medical Corp., supra. 

2050 
The relevant adjusted prime rates, which we adopt as the Commission's 

remedial interest rates, are: 

January 1, 1978 to December 31, 1979 ••• 6% per year (.0001666% per day) 

January 1, 1980 to December 31, 1981. •• 12% per year (.0003333% per 

January 1, 1982 to December 31, 1982 •.• 20% per year (.0005555% per 

January 1, 1983 to June 30, 1983 •.••••• 16% per year (.0004444% per 

July 1, 1983 to December 31, 1983 •.•.•• lU per year (.0003055% per 

January 1, 1984 to June 30, 1984 ••.••.. 11% per year (.0003055% per 

Because the IRS rates of interest are announced as annual rates, it is 

necessary, as explained below, to convert them to daily rates to calculate interest on periods of less than one year. 11.I 

day) 

day) 

day) 

day) 

day) 

There must also be a uniform method of computing the interest on 

back pay awards under the Mine Act. We have considered a number of 

possible computational approaches. We are mindful of the NLRB's extensive administrative and legal experience in this area. The NLRB's 

general back pay methodology is sound and has met with judicial approval. 

The labor bar is familiar with this system. We conclude that rather 

than expending administrative resources in attempting to devise a new 

system, we will best, and most efficiently, effectuate the remedial 

goals of section 105(c) of the Hine Act by adopting the major features 

of the NLRB computational system. We are satisfied that this system 

will do justice to the miner, avoid unnecessary penalization of the 

operator, and not prove unduly burdensome for our judges and bar to 

apply. 

We therefore announce the following general rules for the computation of interest on back pay. 

Back pay and interest shall be computed by the "quarterly" method. 

See Florida Steel Corp., 231 NLRB at 652; F.W. Woolworth Co., 90 NLRB 289 

(1950), approved NLRB v. Seven-Up Bottling Co., 344 U.S. 344 (1953). 1.!!._/ 

]]_/ Prior to the passage of the Tax Equity and Fiscal Responsibility 

Act of 1982, the IRS announced the adjusted prime rate in the October 

of the appropriate year to take effect the following February. For ease 

of administration under the Mine Act, however, we have bounded certain 

interest periods at December 31 and January 1 rather than at January 31 

and February 1. (The NLRB's General Counsel has followed the same 

simplifying approach. NLRB Memorandum GC 83-17, August 8, 1983.) 

14/ Back pay is the amount equal to the gross pay the miner would have 

earned from the operator but for the discrimination, less his actual 

interim earnings. Bradley v. Belva Coal Co., 4 FMSHRC 982, 994-95 (June 

1982). The first figure, the gross pay the miner would have earned, is 

termed "gross back pay." The third figure, the difference resulting ·:ram 

subtraction of actual interim earning from gross back pay, is "net back 

pay"--the amount actually owing the discriminatee. Interest is awarded 

on net back pay only. 

In a discrimination case where, as here, there has been an illegal 

discharge, the back pay period normally extends from the date of the 

discrimination to the date a bona fide offer of reinstatement is made. 

(As we conclude below, the period may also be tolled when the discriminatee waives the right to reinstatement.) 

2051 
Under this method (referred to as the "Woolworth formula," after the 

NLRB's decision in the case of the same name, supra), computations are 

made on a quarterly basis corresponding to the four quarters of the 

calendar year. Separate computations of back pay are made for each of 

the calendar quarters involved in the back pay period. Thus, in each 

quarter, the gross back pay, the actual interim earnings, if any, and 

the net back pay are determined. See n. 14. 

Interest on the net back pay of each quarter is assessed at the 

adjusted prime in~erest rate or rates in effect, as explained below. 

Like the NLRB, we will assess only simple interest in order to avoid 

the additional complexity of compounding interest. Interest on the 

amount of net back pay due and owing for each quarter involved in the 

back pay period accrues beginning with the-last day of that quarter 

and continuing until the date of payment. See Florida Steel Corp., 231 

NLRB at 652. In calculating the amount of interest on any given quarter's 

net back pay, the adjusted prime interest rates may vary between the last 

day of the quarter and the date of payment. If so, the respective rates 

in effect for any quarter or combination of quarters must be applied for 

the period in which they were operative. The interest amounts thus accrued 

for each quarter's net back pay are then summed to yield the total interest 

award. 

For administrative convenience, we will compute interest on the basis 

of a 360-day year, 90-day quarter, and 30-day month. Using these simplified 

values, the amount of interest to be assessed on each quarter's net back pay 

is calculated according to the following formula: 

Amount of interest The quarter's net back pay x 

number of accrued days of interest (from the last 

day of that quarter to the date of payment) x daily 

adjusted prime rate interest factor. 

The "daily adjusted:prime rate interest factor" is derived by dividing 

the annual adjusted prime rate in effect by 360 days. For example, the 

daily interest factor for the present adjusted prime rate of 11% is 

20-52 
.0003055% (.11/360). The daily interest factors are shown in the list of 

adjusted prime rates above. A computational example is provided in the 

accompanying note. 12_/ 

15/ The mechanics of the quarterly computation system may be illustrated 

by the following hypothetical example, in which a miner is discriminatorily 

discharged on January 1, 1983, and offered reinstatement on September 30, 

1983. Payment of back pay and interest is tendered on October 15, 1983. 

After subtraction of the relevant interim earnings, the net back pay of 

each quarter involved in the back pay period is as follows: 

The 

The 

First quarter (beginning January 1, 1983) 

Second quarter (beginning April 1, 1983) 

Third quarter (beginning July 1, 1983) 

Total net back pay 

adjusted prime interest rates in effect in 1983 

$1,DOO 

§1,000 

$1,000 

$3,000 

are: 

16% per year (.0004444% per day) from January 1, 

June 30, 1983; 

1983, 

11% per year (.0003055% per day) from July 1, 1983, to 

December 31, 1983. 

interest award on the net back pay of each of these quarters 

(1) First Quarter: 

(a) At 16% interest until end of second quarter of 1983: 

$1,000 net back pay x 91 accrued days of interest 

(last day of first quarter plus the entire second 

quarter) x .0004444 = $40.44 

Plus, 

(b) At 11% interest for entire third quarter through the 

date of payment: 

to 

is as follows: 

$1,000 net back pay x 105 accrued days of interest (the 

third quarter plus 15 days) x .0003055 = $32.07 

(c) Total interest award on first quarter: 

$40.44 + $32.07 = $72.51 

(2) Second Quarter 

(a) At 16% interest for the last day of the second quarter 

$1,000 x 1 accrued day of interest x .0004444 = $.44 

Plus, 

(b) At 11% interest for the entire third quarter through dntr 

of payment: 

$1,000 x 105 accrued days of interest x .000.3055 = $32.07 

(c) Total = $.44 + $32.07 = $32.51 

(3) Third Quarter: 

At 11% interest for the last day of the third quarter 

through date of payment: 

$1,000 x 16 accrued days of interest x .0003055 = $4.88 total 

(4) Total Interest Award: 

$72.51 + 32.51 + 4.88 = $109.90 

This amount is added to trre total amount of back pay ($3,000), for a total 

back pay award of $3,109.90. 

2053 
The major alternative computational approach would involve awarding 

interest on the total lump sum of net back pay from the date of discrimination to the time of payment. We recognize that this method would involve 

less complex calculations. We reject the lump sum method, however, because 

it would penalize the operator by assuming that the entire amount of the 

back pay debt was due and owing on the first day of the back pay period. 

We will carefully monitor the experience of our judges and parties in 

applying the computational system announced in this decision. We will 

modify the system if that experience over time demonstrates the 

desirability of adjustnent. 

In discrimination cases, our judges should advise the parties of the 

methodology for calculating back pay and interest. The parties shall submit 

to the judge the req11isite back pay figures and calculations, and are urged 

to make as much use of stipulation as possible. The burden of computation 

of interest on back pay awards should be placed primarily on the parties to 

the case, not the judge, in order to comport with the adversarial system. 

We apply the foregoing principles in this proceeding because the issue 

of the appropriate rate of interest in discrimination cases arising under 

the Hine Act was squFtrely raised on review. As a matter of discretionary 

policy in judicial adrn~~nistration, we will otherwise apply these principles 

only prospec tivel v. ·,:o discrimination cases pending before our judges as of 

the date of this decis:i.on or filed with the Commission as of, or after, the 

date of this decision. We do not mean to intimate that any previous awards 

of interest by our judges in other cases, based on different computational 

methods, are infirm. 

Applying our formula to the present case, we conclude that reversal 

is necessary. The judge's award of 6% interest is so disparate from the 

adjusted prime rates in effect from the date of Bailey's discharge on 

June 27, 1980, as to raise questions concerning whether the complainant 

would truly be made "whole" if the judge's award stands. Accordingly, 

we hold that the judge erred in awarding 6% interest, and will remand 

for recalculation of ::~w::~·r·c;-;t pursuant to the interest formula and 

comput:a tional method~~ ;,:_·.1 .;:i-cced in i-.>. i.s cCcs2. 

T1e judge conc=.i·tl :c ~11at :~ailey was not entitled to back pay after 

October 20, 1980, tlw cL:tc; on which Bailey's complaint was filed. That 

complaint requested reinstatement, but it was amended January 22, 1981. 

The amended complaint sought back pay and requested the Commission to 

''order respondents to pay Mr. Bailey $900.00 for one year college tuition 

plus $400.00 book and maintenance expense allowance in lieu of reinstatement at respondentsr nine." The accompanying motion to amend stated: 

Subsequent to his filing of the complaint the Secretary 

was informed by complainant Bailey that he did not wish 

to be reins~ated by respondents and that In lieu of reinstatement Le 11"u ' · cept tuitioc: for one year of college 

plus an a::_.i.011;;;L: . '.Jr expenses. 
The judge granted the motion to amend and, when determining the 

back pay award, applied Rule 15(c), Fed. R. Civ.P., and tolled the award 

on October 20~ 1980. Rule 15(c) provides that where a claim or defense 

in an amended pleading arises out of the same circumstances set forth 

in the original pleading, the amendment relates back to the date of 

the original pleading. Relation back has been generally permitted where 

the movant seeks to enlarge the basis or extent of a demand for relief. 

See, for example, Goodman v. Poland, 395 F. Supp. 660, 682-86 (D. Md. 

1975)(change of theory of recovery from equity to law permitted); 

Wisbey v. Amer. Community Stores Corp., 288 F. Supp. 728, 730-32 (D. 

Neb. 1968)(amendment seeking additional damages in FLSA action permitted). 

We do not believe ·that the restrictive application of relation back 

by the judge was appropriate in this case. 

Rather, in determining when back pay should terminate, we look to the 

date when Bailey informed the Secretary he no longer sought reinstatement 

at Arkansas-Carbona. We agree with the judge's related conclusion: "It 

would be unfair and improper to require a mine operator to pay a former 

employee back pay for a period of time when the employee has unequivocally 

stated that he does not want to return to his former employment." 3 FMSHRC 

at 2321. In a case involving similar issues, this judge compared a miner's 

lack of desire to be reinstated to a rejection of an offer of reinstatement 

under the National Labor Relations Act. Secretary on behalf of Ball v. 

B&B Mining, 3 FMSHRC 2371, 2378 (October 198l)(ALJ). We concur with the 

NLRB rule that an employer is released from his back pay obligations when 

the employee rejects an appropriate offer of reinstatement, and consider 

the analogy to the facts of this case appropriate. See, for example NLRB v. 

Huntington Hospital, 550 F.2d 921, 924 (4th Cir. 1977); NLRB v. Winchester 

Electronics, Inc., 295 F.2d 288, 292 (2d Cir. 1961); LymailSteel Co., 246 

NLRB 712 (1979). 

Tolling the back pay award on the date Bailey informed the Secretary 

that he no longer desired reinstatement effectuates the preceding principles, 

while the judge's relation back to the original complaint needlessly and 

unfairly penalizes Bailey. Therefore, we reverse the judge's relation back 

to the date of the original pleading. The present record does not reveal 

the date Bailey informed the Secretary of his waiver of reinstatement. 

Accordingly, we additionally remand for determination of that date in order 

that the back pay period may be established and the necessary computations 

properly made. 

V. College tuition and related expenses. 

Bailey's remaining contention concerning the award is that the judge 

erred in not granting him tuition and miscellaneous college expenses. The 

judge held, "Complainant failed to establish any entitlement to an award of 

1 year of college tuition plus $400 book and miscellaneous expense allowance." 

3 FMSHRC at 2322. We affirm the judge on this point. 

The Secretary argued in his brief before the judge that Bailey would 

not have paid tuition and expenses, but for his accepting the position at 

Arkansas-Carbona. 12_/ The judge found that, prior to his employment with 

16/ The Secretary did not raise this issue on review and, although 

Bailey briefly raised it in his petition for review, he did not file 

a brief before us. 

2055 
Arkansas-Carbona, Bailey worked as a campus security guard at Arkansas Tech, 

and as a fringe benefit of that campus job did not pay tuition. 3 FMSHRC 

at 2315. (The judge made no finding on whether Bailey's campus job also 

entitled him to college expenses.) After Bailey accepted a position at 

Arkansas-Carbona, and resigned from his campus job, he paid his own tuition. 

The remedial goal of section 105(c) of the Act is to return the miner 

to the status quo before the illegal discrimination. Secretary on behalf 

of Dunmire and Estle v. Northern Coal, 4 FMSHRC at 142. Had Bailey not been 

discharged illegally, he would have been working at Arkansas-Carbona and 

would have had to pay tuition for his classes. We do not see how ArkansasCarbona can be held responsible for a fringe benefit Bailey did not receive 

from that company. Although at times we may need to seek alternative 

remedies to make a miner whole for illegal discrimination (for example, 

where reinstatement is impossible or impractical), such considerations are 

not present in this case. 

Accordingly, we affirm the judge's refusal to award tuition and 

college expenses. 

VI. Conclusion 

For the foregoing reasons, we affirm the judge's severing of the 

request for a civil penalty from the merits of the discrimination case, 

and hold that in future cases the Secretary must propose in his discrimination complaints a specific penalty supported by allegations 

relevant to the s~atutory penalty criteria. As we have stated above, 

we are accordingly in the process of amending our Procedural Rule 42 to 

provide for unified proceedings in the future. 

We reverse the judge's assessment of 6% interest on back pay, and remand 

to the Chief Administrative Law Judge for assignment to a judge for calculation of back pay and interest according to the principles and methodology 

announced in this decision. };!_/ We reverse the judge's tolling of the back 

};!_/ The judge who decided this case has left the Commission. 

2056 
pay award on the date the complaint was filed, and additionally remand for 

determination of the date 1).e_j_lev -1_nfo-::-rc.,"rl the <:'.'.,,,>., ·-_-, -- : c Ho longer wished 

reins tatemen c. Fr·:clL_" . _ ~ -··- .. _ --~ey 's request 

for college tuition and related expenses. 

Distribution 

James R. Pate, Esq. 

Sanford, Pate & Marschewski 

P.O. Box 1004 

Russellville, Arkansas 72801 

R. David Lewis, Esq. 

1109 Kavanaugh 

Little Rock, Arkansas 72200 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

2057 

J ! 1 /, 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CYNTHIA COAL CO., INC., 

Respondent 

DECISION 

Docket No. ~ENT 83-116 

A.C. No. 15-12725-03502 

No. 8 Mine 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

U:S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Byron w. Terry, Safety Director, Cynthia Coal 

Company, Beaver Dam, Kentucky, for Respondent. 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), 

seeking a civil penalty assessment in the amount of $20 

for an alleged violation of mandatory health standard 30 

CFR 71.208(a) as noted in a Section 104(a) Citation No. 9949426, 

served on the respondent by an MSHA inspector on August 12, 1982. 

The respondent contested the citation, and the case was 

scheduled for a hearing in Evansville, Indiana, along with 

several other cases during the term-November 1-3, 1983. 

However, respondent's counsel decided not to pursue the matter 

and agreed to pay the full amount of the proposed civil ~enalty 

assessment. In this regard, petitioner's counsel presented 

a proposed settlement on the record for my consideration. 

Discussion 

In support of the proposed settlement disposition of 

this case petitioner's counsel agreed that the respondent no 

2059 
longer wished to pursue the matter and he confirmed that 

the respondent's mine has been abandoned and closed and is 

no longer mining coal. Counsel also stated that the operator 

was a small operator, that the $20 penalty is reasonable in 

the circumstances, that the negligence level for the citation 

ranged from "little to none", and that the respondent's 

history of prior citations consisted of two prior citations. 

Counsel was of the opinion that the proposed settlement 

constitut~d a reasonable resolution of the case. 

After careful consideration and review of the pleadings 

and the arguments presented by the petitioner's counsel in 

support of the proposed settlement of this case I find 

that it is reasonable and in the public interest, and 

pursuant to Commission Rule 30, 29 CFR 2700.30 it is APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the 

amount of $20 within thirty (30) days of the date of this 

decision, and upon receipt of payment by MSHA this matter is 

dismissed. 

.0.1 ) I .. ·J- V· 

~orge 

1fb1,A4i /(.-Koutras 4, /~~~ Administrative Law Judge 

Distribution: 

Darryl A. Stewart, Esq., U.S. Department of Labor, Office 

of the Solicitor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Byron W. Terry, Safety Director, Cynthia Coal Co., Inc., 

P.O. Box 431, Beaver Dam, KY 42320 (Certified Mail) 

/slk 

2060 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

WEBSTER COUNTY COAL CORP., 

Respondent 

Docket No. KENT 83-216 

A.C. No. 15-00672-03508 

Retiki Mine 

Docket No. KENT 83-259 

A.C. No. 15-02132-03513 

Dotiki Mine 

DECISIONS 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Before: 

Nick Carter, Esq., MAPCO, Inc., Lexington, Kentucky, 

for Respondent. 

Judge Koutras 

Statement of the Cases 

These proceedings concern proposals for assessment of 

civil penalties filed by the petitioner against the respondent 

pursuant to Section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 CFR 820(a), seeking civil penalty assessments 

for two alleged violations of mandatory health standard 30 CFR 

70.lOO(a). 

The respondent contested the citations, and pursuant 

to notice the cases were docketed for hearings in Evansville, 

Indiana during the term November 1-3, 1983. These cases were 

scheduled for trial on November 3, 1983. However, prior to the 

commencement of the hearings, respondent's counsel advised 

me that the respondent had decided not to litigate the cases 

further and counsel sought leave to dispose of the cases by 

tendering full payment of MSHA's proposed civil penalties. 

Under the circumstances, the parties were afforded an 

opportunity to present their proposals on the record, and 

2061 
petitioner's counsel presented arguments in support of a 

proposed settlement disposition of the cases pursuant to 

Cornraission Rule 30, 29 CFR 2700.30. The citations, initial 

assessments, and the proposed settlement amounts are as 

follows: 

Docket KENT 83-216 

Citation No. Date 30 CFR Section Assessment Settlement 

9949525 1/24/83 70.lOO{a) $227 $227 

Docket KENT 83-259 

Citation No. Date 30 CFR Section Assessment Settlement 

2075782 3/3/83 70.lOO(a) $213 $213 

Discussion 

The parties stipulated to the following: 

1. At all times pertinent to these proceedings, 

Webster County Coal Corporation, was owner and 

operator of the Dotiki Mine in Webster County, 

Kentucky, and the Retiki Mine in Henderson 

County, Kentucky, and the mines are subject to 

the Federal Mine Safety and Health Act of 1977. 

2. The presiding Administrative Law Judge has 

jurisdiction to he.ar and decide these cases. 

3. The inspectors who issued the citations which 

are the subject of these proceedings are designated 

authorized representatives of the Secretary of 

Labor. 

4. True and correct copies of the citations 

were served upon the operator. 

5. The copies of the citations (Exhibits G-1 

through G-2) are authentic copies and may be 

admitted as such, but not for the truth or 

relevance of the statements made therein. 

6. Payment of the penalties assessed in these 

proceedings will have no effect on the operator's 

ability to continue in business. 

7. The Dotiki Mine produces approximately 

1,500,000 tons per year and the Retiki Mine 

produces approximately 690,000 tons per year. 

2062 
8. The operator demonstrated good faith in 

abating the conditions alleged .in the citations 

which are the subject of these proceedings, 

as is credited in the proposed assessment. 

In support of the proposed settlement disposition of 

these cases, petitioner's counsel asserted that after consideration 

of the statutory criteria found in Section llO(i) of the Act, 

as well as his consultation with the inspectors who issued 

the citations, he was of the view that the respondent's 

payment in full of the proposed penalty settlements is a 

reasonable disposition of these dockets and that the oroposed 

settlements are in the public interest. Counsel also presented 

a ~omputer print-out summarizing the respondent's history of 

prior citations. 

After careful consideration and review of the pleadings 

filed in these cases, including the arguments submitted on 

the record in support of the proposed settlement dispositions 

by the parties, I find that they are reasonable and in the oublic 

interest, and pursuant to Commission Rule 30, 29 CFR 2700.30, 

they are APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the 

settlement amounts shown above within thirty (30) days of 

the date of these decisions, and upon receipt of payment by 

MSHA, these proceedings are dismissed. 

~At:~ Administrative Law Judge 

Distribution: 

Darryl A. Stewart, Esq., U.S. Department of Labor, Office of 

the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Nick Carter, Esq., .MAPCO, Inc., 181 N. Mill St., #9, Lexington, 

KY 40507 (Certified Mail) 

/slk 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RAY WARD, 

Complainant 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEG., 1983 

DISCRIMINATION PROCEEDING 

Docket No. SE 82-55-D 

BARB CD 81-38 

VOLUNTEER MINING CORPORATION, 

Respondent 

FINAL ORDER 

Before: Judge Fauver 

My decision on liability was entered on July 29, 1983, 

holding that Respondent discriminated against Complainant 

in violation of section 105(c) (1) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801, et~, and 

granting leave to the parties to propose an order of relief. 

On December 1, 1983, the parties filed a settlement 

agreement on relief. This agreement is APPROVED as a just 

and appropriate settlement consistent with the decision on 

liability and the purposes of the Act. 

WHEREFORE IT IS ORDERED that this proceeding is CONCLUDED. 

w~?-~v~ William Fauver 

Administrative Law Judge 

Distribution: 

Dorothy B. Stulberg, Esq., Mostoller and Stulberg, 100 Tulsa 

Road at Illinois Avenue, Oak Ridge, Tennessee 37830 (Certified 

Mail) 

Joseph H. Van Hook, Esq., Drawer M., Oliver Springs, Tennessee 

37840 .(Certified Mail) 

kg 

2064 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 't 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

BROWN BROTHERS SAND COMPANY, 

Respondent 

Docket No. SE 83-42-M 

A.C. No. 09-00265-05501 

Junction City Mine 

DECISION 

Appearances: 

Before: 

Ken S. Welsch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, for 

Petitioner; 

Carl W. Brown and Steve Brown, for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This case involves a single citation charging Respondent 

with a violation of 30 C.F.R. § 50.30(a) for failing to file 

quarterly man-hour reports for the third and fourth quarters of 

1982. Pursuant to notice, the case was heard in Talbotton, 

Georgia, on November 15, 1983. Ronald Grabner, a federal mine 

safety and health inspector testified for Petitioner. No 

witnesses were called by Respondent. The parties made oral 

arguments on the record but each waived its right to file written 

posthearing briefs. Based on the entire record, and considering 

the contentions of the parties, I make the following decision. 

FINDINGS OF FACT 

l.· At all times pertinent to this proceeding, Respondent 

was the owner and operator of a sand dredging operation in 

Talbot County, Georgia, known as the Junction City Mine. · 

2. Respondent is a small family owned business. It employed 

approximately nine employees at the time of the violation alleged 

herein. 

20S5 
3. The operation of Respondent's business affects interstate 

commerce. 

4. During the 2 years immediately preceding the violation 

alleged herein, Respondent had no paid violations of the Act or 

regulations promulgated thereunder. 

5. Respondent did not file the quarterly man-hour reports 

for the third and fourth quarters of 1982, prior to March 15, 

1983, when the citation involved herein was issued. 

6. The citation was terminated on the day it was issued 

when the reports in question were filled out and submitted. 

7. Respondent has not filed the quarterly man-hour reports 

for any of the first three quarters of 1983. 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal 

Mine Safety and. Health Act of 1977 and the regulations promulgated 

thereunder in the operation of the Junction City Mine. 

2. Respondent's failure to submit quarterly employment 

reports for the third and fourth quarters of 1982 is a violation 

of 30 C.F.R. § 50.30. 

DISCUSSION 

Respondent does not deny that he failed to submit the reports 

in question. He apparently challenges the necessity and value of 

the reports. Clearly, however, the reports are legitimate requirements of the Secretary who is charged with the responsibility of 

promoting health and safety in the nation's mines. Preparing 

statistical analyses of injury rates and injury causes is an 

integral part of that responsibility. The fact that Respondent 

thinks the reports are onerous or unnecessary is no defense to a 

petition for a penalty for a violation. 

3. The violation was in itself not serious, since the 

failure or refusal to file the required reports is not likely to 

result in injury or occupational disease. 

4. The violation was deliberate. 

DISCUSSION 

A citation was issued on June 26, 1980, to the Respondent 

charging it .with failure to file the quarterly man-hour report 

2066 
for the first quarter of 1980. Respondent contested the violation 

and a hearing was held before Judge Koutras on April 13, 1981. 

Judge Koutras issued a decision affirming the citation and assessing a civil penalty on May 1, 1981. 3 FMSHRC 1203. In his 

decision he said: 

Therefore, I believe that respondent had prior 

notice of the requirements of the regulation in 

question, and while his subsequent failure to file 

borders on.gross negligence, I have considered the 

fact that respondent may have been confused as to 

what was required and find that the citation in 

question here resulted from respondent's failure to 

exercise a reasonable care amounting to ordinary 

negligence. 

In the case before me, there is no question that Respondent was 

aware of the filing requirements and its failure to observe them. 

As I stated above, Respondent apparently believes the requirement 

to be onerous and unnecessary. In fact the reporting requirement 

is simple to observe, and it has a legitimate public purpose. 

Carl Brown's statements on the record exhibited a contemptuous 

attitude toward the requirement. No mine operator, whether Brown 

Brothers Sand Company or United States Steel Company, may decide 

for itself whether it will observe the duly promulgated standards. 

The penalty assessed in this case will reflect my conclusion that 

the violation was deliberate. 

5. Respondent did not exhibit good faith in abating the 

violation after the citation was issued. Although the citation 

was abated, it w2s done so grudgingly, and the violation has 

apparently bee~ repeated since then. The penalty assessed in 

this case will reflect my conclusion that Respondent did not 

exhibit good faith in complying with the regulation after the 

citation was issued. 

6. Considering the criteria in section llO(i) of the Act, 

I conclude that an appropriate penalty for the violation found 

is $100. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED that Respondent shall within 30 days of the date 

of this decision pay the sum of $100 for the violation found 

herein to have occurred. 

/ /(luu:-s k-d-v cltrz. el:__ 

/ James A. Broderick 

.../' Administrative Law Judge 

2067 
Distribution: 

Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA 

30309 (Certified Mail) 

Mr. Carl w. Brown, Brown Brothers Sand Company, P.O. Box 32, 

Howard, GA 31039 (Certified Mail) 

/fb 2068 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 12, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

INDEPENDENT GRAVEL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 83-61-M 

A.C. No. 23-00113-05501 

Webb City Chat Plant 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The parties have filed a motion to approve settlement 

in the above-captioned proceeding. The original assessment 

for the one violation was $54. The proposed settlement is 

$27. 

Citation No. 2095336 was issued for a violation of 30 

C.F.R. § 56.5-1/5 because the South Mill operator was 

exposed to an excessive level of respirable silica-bearing 

dust. The parties advise that the gravity of the violation 

is not as severe as originally was rated. The parties advise 

that overexposure to silica-bearing dust for short periods 

will not result in permanent disability. This may be so, 

but exposure over long periods is a serious matter, and 

each individual exposure adds to the total. I view this 

as a violation with gravity. I approve the recommended 

settlement because the operator is small in size and has a 

small history of prior violations. In the future, the 

operator should exercise care over the dust levels. 

The 

the date 

Distribution: 

ORDER 

$27 within 30 days from 

Chief Administrative Law Judge 

Robert S. Bass, Esq., Office of the Solicitor, u. s. Department 

of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 

64106 (Certified Mail) 

Mr. Gene Hatfield, Independent Gravel Company, 223 West 3rd 

Street, P. O. Box 1423, Joplin, MO 64801 (Certified Mail) 

/ln 2069 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC 14 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TURNER BROTHERS, INC., 

Respondent . . 

DECISION 

Docket No. CENT 83-9 

A.C. No. 34-01317-03502 

Docket No. CENT 83-13 

A.C. No. 34-01317-03503 

Heavener No. 1 Mine 

Appearances: Allen Reid Tilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

Petitioner; 

Before: 

Robert J. Petrick, Esq., Turner Brothers, Inc., 

Muskogee, Oklahoma, for Respondent. 

Judge Melick 

Hearings were held in these cases on October 27, 1983, in 

Fort Smith, Arkansas. A bench decision was thereafter rendered 

and essentially only the amount of penalties have been changed. 

That decision, as modified herein, is now affirmed. 

Waiver of Right to Presence at Hearing 

As a preliminary matter, I find that Turner 

Brothers, Inc., has waived its right to be present 

at this hearing today and to cross examine witnesses and present evidence on its own behalf. It is 

clear that the operator received adequate notice 

well in advance of hearing. It is also clear from 

the last minute telephone calls made late yesterday by the operator's representative and received 

by the Solicitor and by my office after I had already departed for this hearing, that the operator 

did not request and did not want a continuance of 

this hearing. 

Lndeed, the telephone calls to the Solicitor's Office and to my office were to the effect 

2070 
that the operator's representatives had more important business to attend to elsewhere and that it 

would go ahead and pay whatever penalties were 

imposed. This determination by the operator was 

made, I find, after having been fully informed by 

the Solicitor's Office that the penalties that had 

been proposed initially by the Secretary could be 

modified by the Administrative Law Judge and indeed could be increased as well as decreased after 

hearing the evidence in the case. Accordingly, I 

find that the operator has waived its right to be 

present and to participate at this hearing. 

The Merits 

These cases are, of course, before me pursuant to Section 105Cd) of the Federal Mine Safety 

and Health Act of 1977, which I will refer to hereafter as the "Act". The Secretary, in the petitions filed, is seeking civil penalties for seven 

violations of regulatory standards. 

The general issues before me are whether the 

operator, that is, Turner Brothers, Inc., which I 

will refer to hereafter as "Turner", has committed 

the violations charged and, if so, the amount of 

civil penalty to be assessed. In determining the 

amount of civil penalty to be assessed I must, of 

course, independently consider the criteria under 

Section llOCi) of the Act. This is a de novo determination and I am not bound in any way~the 

proposed assessment or findings previously made by 

the Secretary pursuant to his own regulations. 

Section llOCi> requires consideration of the operator's history of previous violations, the appropriateness of any penalty assessed to the size of the 

business of the operator charged, whether the operator was negligent, the effect of the penalty 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 the 

violation. 

According to MSHA Inspector Donalee Boatright, the mine in this case had an annual coal 

production of about 350,000 tons and had 51 employees. Total annual production at all of Turner's 

mines-was about one million tons. The mine and 

the operator are accordingly of medium size. 

2071 
Now, the Secretary of Labor has also submitted, and it has been admitted in evidence, a printout of prior violations. This print-out shows a 

minimal history of violations and does not show 

any violations of standards cited in the particular cases before me. There is no evidence that 

the operator would be unable to pay the penalties 

that I impose in this case or that they would affect its ability to stay in business. It appears, 

moreover, that the violations in this case were 

abated in a timely fashion and in good faith. 

Now, proceeding to the individual citations, I 

consider first of all Docket No. CENT 83-13, Citation No. 2007396. The citation reads as follows: 

"An unplanned ignition of explosives occurred at 

this mine sometime in late August of 1982, and the 

mine operator did not notify MSHA of the accident. 

The operator did not have a report of his investigation of the accident at the mine off ice, so the exact date in August could not be determined. The 

accident occurred when an unexpected electrical 

storm came up and ignited 16 charged holes while the 

employees were being removed from the blasting area. 

No injuries occurred." 

The citation charges a violation of the standard at 30 CFR Section 50.10. That standard 

states as follows: "If an accident occurs, an 

operator shall immediately contact the MSHA District or Subdistrict Off ice having jurisdiction 

over its mine. If an operator cannot contact the 

appropriate MSHA District or Subdistrict Off ice it 

shall immediately contact the MSHA Headquarters 

Office in Washington, D.C., by telephone, toll 

free at (202) 783-5582." 

The evidence before me is that Inspector Boatright received information from his supervisor on 

December 6, 1981, concerning an explosion at the 

Heavener No. 1 Mine, operated and owned by Turner. 

Inspector Boatright thereupon went to the mine and 

t·alked to the mine superintendent, Jim Payne. Mr. 

Payne at first denied that there had been any ignition of explosives or any other accident but upon 

further inquiry admitted that some time the previous August, they did have a pre-ignition of explosives caused by an electrical storm. 

2072 
Although Mr. Payne allegedly had made an investigation of the incident, he admittedly did not 

report it to the Mine Safety and Health Administration, as required. His excuse was that he did not 

think he had to report it to MSHA because there 

had been no injuries. 

The incident in question involved a premature 

detonation by an electrical storm of a number of 

charged holes. It appears that a number of the 

drilled holes, each approximately 50 feet deep and 

five inches in diameter, had been fully charged, 

i.e., explosives had been placed to within approximately eight feet of the surface. Each of the 

charged holes had also been provided with a detonator and wires were protruding from the holes in 

preparation for final wiring for detonation. At 

this time an electrical storm passed through the 

area setting off a number of the holes depicted in 

Petitioner's Exhibit No. 2, causing explosions to 

within approximately 88 feet of an individual who 

was operating the high wall drill. Indeed, there 

were charged holes to within 22 feet of the driller operator, and if these holes had also detonated, he could very well have been killed. 

The evidence shows that the miners in the 

vicinity of the charged holes had previously withdrawn from the site upon the approach of an electrical storm, but had prematurely returned after 

some 35 minutes on the belief that the storm had 

passed. Apparently no citation was issued for the 

incident itself, but only for the failure to report it. Now the operator would no doubt contend, 

as it appears from the Answer filed in the case, 

that he looks upon this violation as non-serious 

-- a mere failure to file some paperwork. I look 

upon the violation somewhat more seriously. Here 

there was an accident of a particularly serious 

nature. Without a sufficient deterrent penalty, 

it would be too easy for the operator to avoid a 

Mine Safety and Health Administration inspection 

and investigation of such incidents and it would 

j"ust be too simple for the operator to cover up 

his misdeeds. Moreover, without the impetus of 

MSHA, it would be too easy for an operator to fail 

to take corrective action to avoid future accidents of a similar nature. This could very well 

lead to future fatalities and serious injuries. I 

therefore find that there must be a stronger disincentive than'a mere $10 or $20 penalty for the 

2073 
intentional or negligent failure of mine operators 

to notify MSHA in this regard. Under the circumstances, I believe a penalty of $175.00 is appropriate. 

The second violation relating to this incident appears in Citation No. 2007397. That citatio~ charges and the evidence shows that the mine 

operator did not have a report of his investigation of the unplanned explosion available for MSHA 

examination. The cited standard, 30 CFR Section 

50.ll(b), requires that such investigation must be 

completed by the operator after each accident at 

the mine and a copy must be submitted upon request 

to MSHA. The standard also sets forth the specifics that must be included in any such report. 

While the Mine Superintendent alleged that he had 

sent such a report to the mine off ice, apparently 

no such report was produced. Under the circumstances there is some question as to whether the proper report had indeed been completed. Accordingly, 

I find that a penalty of $175.00 is appropriate 

for the violation. 

Moving now to the citations in Docket No. 

CENT 83-9, Citation No. 2007386 alleges a violation of the standard at 30 CFR Section 77.208(d). 

It reads as follows: "[f]ive compressed gas cylinders Cl acetylene, and 4 oxygen) were not secured 

in a safe manner in that they were laying on the 

ground near the cylinder storage rack near the 

mine office." 

The standard cited reads as follows: "[c]ompressed and liquid gas cylinders shall be secured 

in a safe manner." 

According to the undisputed testimony of Inspector Boatright, upon the initiation of his regular inspection of the Heavener Mine No. 1, on November 1, 1982, and in fact as he was leaving the 

mine off ice after making his initial contact with 

the superintendent, he observed five compressed 

gas cylinders lying on the ground in front of the 

mine off ice. The cylinders were within view of 

anyone entering or leaving the off ice or parking 

adjacent to the off ice. The cylinders were exposed to vehicles parking in an area where pick-up 

trucks, mechanics trucks, and a lube truck regularly parked. 

2074 
It was not unlikely therefore for a truck to 

strike one of those cylinders and to rupture the 

cylinder or its valve. Inspector Boatright pointed out that if such an event should occur, the 

cylinder could act like an uncontrolled rocket. 

The cylinders weighed approximately 70 to 80 

pounds and could kill a person under those circumstances. Superintendent Payne explained that the 

cylinders had apparently been left by the delivery 

man earlier that morning, or the mechanic. I find 

that the superintendent should have seen the cylinders lying exposed on the ground right outside of 

his off ice, and that he was therefore negligent in 

failing to have them secured in a timely fashion. 

Under the circumstances, I find that the violation 

warrants a penalty of $175.00. 

Citation No. 2227387 charges a violation of 

the standard at 30 CFR Section 77.1605(b), and 

alleges in particular that the Caterpillar rock 

haulage truck No. 915, operating at Pit 001-0 was 

not equipped with a parking brake in operating 

condition. 

The cited standard requires that mobile equipment shall be equipped with adequate brakes and 

all trucks and front end loaders shall also be 

equipped with parking brakes. It is implicit in 

that standard that when the equipment is equipped 

with parking brakes, that the brakes must also be 

in operating condition. 

It is undisputed in this case from the testimony of Inspector Boatright that the cited haulage 

truck did not have an operating parking brake. As 

pointed out by the inspector, ordinarily these 

trucks are not parked in areas where there would 

be an incline but are parked on level ground. 

However, there could very well be occasions where 

the truck might break down and have to be stopped 

and parked. Indeed, without an adequate parking 

brake, the truck could roll out of control and 

strike another vehicle or pedestrians in the area, 

and of course cause fatalities or serious injuries. 

The superintendent stated that the brakes 

were checked as a matter of routine each morning 

and the equipment operator stated that he, as a 

matter of practice on that morning before working 

2075 
at 7:00 a.m., had checked the brake and found it 

to be operating. 

It is noted that this violation was discovered some several hours after the start of the 

shift at 7:00 a.m. that morning. While it is possible that the parking brake did become defective 

during that short period of time, I do not find 

the explanation to be credible. Accordingly, I 

find that a penalty of $175.00 is appropriate for 

this violation. 

Citation No. 2007388 charges a violation of 

the standard at 30 CFR Section 77.1605(d). It 

appears from that citation that the same rock haulage truck that had a non-operating parking brake 

also did not have an operating audible warning 

device, i.e., a front horn. 

The standard cited requires that mobile equipment shall be provided with audible warning devices. It is undisputed that this vehicle did not 

have a front horn, that is, an audible warning device, just as charged in the citation. The inspector pointed out that without such an audible warning device, the haulage truck could not warn other 

vehicles or pedestrians of its approach, and this 

indeed could foreseeably result in fatalities or 

serious injuries. 

Again the equipment operator stated that when 

he had checked the equipment that morning before 

his shift at 7:00 a.m., all systems, presumably 

including the front horn, were in functioning condition. While again it is certainly possible that 

the horn as well as the parking brake could have 

become defective in the few hours between the beginning of the shift and the discovery of this 

defect by the inspector, I find the explanation to 

be lacking in credibility. Under the circumstances, I find that a penalty of $175.00 is appropriate for this violation. 

Citation No. 2007389, charges another violation of the standard at 30 CFR Section 77.1605(b). 

It appears that the front end loader did not have 

an operating parking brake. As pointed out by 

the inspector, the hazard in this situation was 

similar to that involving the haulage truck. The 

machine operator in this case also~said that he 

had checked the brake before the beginning of the 

2076 
shift at 7:00 a.m., and that it was functioning at 

that time. The citation was issued at 10:20 that 

morning. The explanation is not credible. Under 

the circumstances, I find that a penalty of 

$175.00 is appropriate for the violation. 

Citation No. 2007390, charges a violation of 

the standard at 30 CFR Section 48.29(a). In particular, the citation reads that "[t]raining certificates (MSHA Form 5000-23) for 14 employees 

were not available at the mine site for inspection. 

The mine superintendent (Jim Payne) stated that 

the 14 employees had been trained within the last 

year by Frank R. Pasteur." 

The standard at Section 48.29(a) requires not 

only the individual miner's completion of MSHA 

approved training but also requires that training 

certificates for the miners who have completed the 

training must be available at the mine site for 

examination by MSHA, the miners, the miners' representatives, and State inspection agencies. 

It turns out in this case that indeed the 14 

miners for whom the certificates were not available at the mine off ice did, in fact, have the 

training but that apparently the contractor, Mr. 

Pasteur, had not forwarded the proper forms back 

to the mine off ice. 

Under the circumstances, I find that only a 

nominal penalty of $20.00 is appropriate for that 

particular violation. 

ORDER 

In accordance with the Decision in this case, Turner 

Brothers, Inc., is hereby o pay civil penalties in 

the amount of ~ within the date f this 

decision. # 1

1

01 O 

t,(~a..,--

1\-me_ •. J: "j • 1)~;7:0,.\ 

3/:J..'J./~~ Gary M lick 

Assistant Chi 

2077 
Distribution: 

Allen Reid Tilson, Esq., Office of the Solicitor, U.S. Department of Labor, 555 Griffin Square Building, Suite 501, 

Dallas, TX 75202 (Certified mail) 

Robert J. Petrick, Esq., Turner Brothers, Inc., P.O. Box 

447, Muskogee, OK 74401 (Certified mail) 

nw 

2078 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 12, 1983 

SECRETARY OF LABOR~ 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

EARTH COAL COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-32 

A.C. No. 12-01890-03502 

Lengacher Mine No. 1 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On April 26, 1983, the operator was ordered to send an 

Answer to this Commission within 30 days or show good reason 

for the failure to do so. The order advised that failure to 

respond would result in default. No response was received 

despite receipt of the order. On June 28, 1983, an order of 

default was issued ordering the operator to pay $763. 

On July 27, 1983, the operator filed a request for 

review of the order of default. By an order dated August 4, 

1982, the Commission granted review and remanded the case to 

me to ascertain and evaluate the operator's reasons for 

failing to respond to the show cause order dated April 26, 

1983. On August 9, 1983, the operator was ordered to 

furnish information within 45 days sufficient for me to 

evaluate the reason for its failure to respond to my show 

cause order. No response to the August 9, 1983 order was 

received despite receipt of the order. On October 13, 1983, 

the operator was ordered to furnish the necessary information 

within 45 days or show good reason for the failure to do so. 

The operator has now responded to the order of October 13, 

1983. The operator states that the cited mine is no longer 

operational and the operator does not wish to pursue this 

matter any further. 

2079 
Accordingly, the order of default is reinstated, the 

operator is ORDERED to pay $763 within 30 days from the date 

of this order and this case is hereby DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago, 

IL 60604 (Certified Mail) 

Mr. Byron W. Terry, Safety Director, Earth Coal Company, 

Inc., P. o. Box 431, Beaver Dam, KY 42320 (Certified Mail) 

/ln 

2080 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . DEC 121983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent 

DECISION 

Docket No. PENN 83-5 

A.C. No. 36-00856-03503 

Rushton Mine 

Appearances: Agnes Johnson-Wilson, Esq., Office of the 

Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

Joseph T. Kosek, Jr., Esq., Ebensburg, Pennsylvania, for Respondent. 

Before: Judge Melick 

This case is before me upon the Petition for Assessment of 

Civil Penalty filed by the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801, et seq., the "Act," for one violation of the regulatory standard at 30 CFR § 75.202. The general issue before me is 

whether the Rushton Mining Company (Rushton) has violated the 

cited regulatory standard and, if so, whether that violation was 

"significant and substantial" as defined in the Act and as interpreted by the Commission in Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981). If it is determined that 

a violation has occurred, it will also .be necessary to determine 

the appropriate penalty to be assessed. Evidentiary hearings on 

these issues were held in Philipsburg, Pennsylvania. 

On April 15, 1982, MSHA Inspector Donald Klemick issued a 

combined withdrawal order and citation under sections 107(a) and 

104(a) of the Act, respectively. The validity of the order is 

not in itself at issue in this civil penalty proceeding. See 

Secretary v. Wolf Creek Collieries Company, PIKE 78-70-P (March 

26, 1979); Pontiki Coal Corporation v. Secretary, 1 FMSHRC 1476 

(October 1979). The Order/Citation alleged as follows: 

2081 
Loose, unsupported and drurnmy ribs, and in 

several areas, loose overhanging ribs, were present throughout the number thirteen, fourteen, fifteen, and sixteen left side rooms, and adjacent 

number seventeen room being mined off the first 

left north mains 013 section under the supervision 

of Torn Smith, section foreman. The ribs had 

sloughed in several areas and was [sic] on the 

mine floor, a heavy slate binder varying in width 

was present near the roof which would fall or had 

fallen when the ribs bump or roll-out, a violation 

of section 75.202. 

The cited standard provides in relevant part that "[l]oose 

roof and overhanging or loose faces and ribs shall be taken down 

or supported." 

The expertise of MSHA Inspector Donald Klernick in mine safety is not disputed. He has twelve years experience as a coal 

mine inspector for MSHA, he conducts frequent underground coal 

mine inspections of roof and rib conditions and he has had perio.dic training in roof and rib control. Inspector Klernick also has 

had six years experience as a coal mine owner and in that capacity performed his own roof and rib examinations on a daily basis. 

According to Klernick, the determination of the soundness of roof 

and ribs in a coal mine is more of an art than a science. In 

this regard, an important technique recognized in the mining industry for determining the safety of roof and ribs is known as 

"sounding". A "drurnrny" sound emitted from roof or ribs upon tapping by a wooden handled or other similar implement signals a 

hollowness, separation, or fracturing that may not be visible. 

These are indications of potentially dangerous roof or rib conditions. 

During the course of his regular inspection of the Rushton 

Mine on April 15, 1982, Inspector Klernick observed that the ribs 

were slabbing throughout the Number 13, 14, 15, 16, and 17 rooms 

in the first left north mains, 013 section of the mine. The upper ten to eighteen inches of the rib consisted of a fractured 

rock "binder" and "bony" coal which was overhanging up to twenty 

inches in some places. There were about two hundred feet of ribs 

with such overhangs and some were visibly cracked and loose. 

Many of the ribs also sounded "drurnmy", indicating a separation, 

fracture, and lack of adhesion in the ribs. More than half of 

the ribs had also sloughed in the area cited. According to Klernick, some of this overhanging material can be seen in the photographic evidence (Operator's exhibits 0-1, 0-11, and 0-16). In 

2082 
particular, because of the fracturing in the overhanging "binder", he thought it was highly likely that such material could 

fall on the miners working in the area, resulting in serious and 

possibly fatal injuries. He observed that mining equipment was 

operating in the cited area continuously over three shifts. Under the circumstances, the inspector concluded that an imminent 

danger of death or great bodily harm existed. 

There is no dispute that ribs in the cited area were protruding from the vertical and that some were visibly fractured and 

drummy sounding. Mine Superintendent Raymond Roeder accompanied 

Inspector Klemick during this inspection and agreed with Klemick 

that the ribs sounded drummy and that protrusions did exist in 

some locations. Roeder does not, however, consider such "protrusions" to be "overhanging ribs" within the meaning of the cited 

standard unless they protrude from the vertical more than six or 

eight inches. Rushton's safety inspector, Robert Crain, also 

agreed that some of the ribs were fractured and produced a drummy 

sound. He also saw one protrusion of more than eight inches. 

Within this framework of essentially undisputed evidence, it 

is clear that the violation is proven as charged. Ribs in the 

cited area were clearly protruding from the vertical or "overhanging" and were admittedly loose and drummy in many locations. 

There was also a reasonable likelihood that the hazard of a rib 

or roof fall would occur under the circumstances, resulting in 

death or injuries of a serious nature. The violation was, accordingly, "significant and substantial" and of high gravity. National Gypsum, supra. 

Klemick also concluded that the operator was negligent for 

allowing the condition to exist. He observed that the operator 

was required to perform three onshif t and three preshif t examinations each day and that Mine Superintendent Roeder and the mine 

foreman, Mike Rapaski, concurred that the ribs were in fact loose 

in the cited area. The cited conditions were abated after the 

operator provided additional roof and rib support by adding timbers in some areas and by abandoning other areas. 

The operator maintains that in spite of the described conditions, the cited area was nevertheless a safe place to work. In 

particular, it points to the evidence that Inspector Klemick was 

in the- cited mine section only two days before the withdrawal 

order under essentially the same conditions and Klemick not only 

failed to cite the conditions but did not see fit to even mention 

them. It is not disputed that Klemick was indeed present in the 

same mine section two days before, as alleged, but he claims not 

2083 
to have noticed the rib conditions because he was concentrating 

on another violation. I find it difficult to believe, however, 

that an experienced miner and mine safety inspector would be so 

oblivious to conditions he characterized as "an imminent danger" 

if they were as obvious and dangerous as he alleges. Thus while 

there is no doubt that overhanging rib conditions did exist with 

detectable fra~tures, I do not find that the conditions were as 

obvious as now alleged by MSHA. Accordingly, while I find the 

operator to have been negligent in allowing the cited conditions 

to exist, I do not find it to have been grossly negligent. 

In determining the appropriate penalty to be assessed in 

this case, I have also taken into consideration the evidence herein that the operator is medium in size and has a modest history 

of prior violations. Under the circumstances, I find that a penalty of $500 is appropriate. 

ORDER r· 

The Rushton Mining Company~~ hereby ordered to pay a civil 

penalty of $500 within 30 days of \he date of this decision . 

t 

. . 

Chie\_ 

~ti Administrative Law Judge 

LJ Distribution: 

Agnes Johnson-Wilson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified mail) 

Joseph T. Kosek, Jr., Esq., Rushton Mining Company, P.O. Box 367, 

Ebensburg, PA 15931 (Certified mail) 

nsw 

2084 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GLEN MUNSEY, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 121983 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. NORT 71-96 

SMITTY BAKER COAL CO, INC., 

P&P COAL COMPANY, and 

RALPH BAKER, 

IBMA 72-21 

Appearances: 

Before: 

Respondents 

DECISION 

Steven B. Jacobson, Esq., Decastro, West & 

Chodorow, Inc., Los Angeles, California, 

for Complainant; 

J. Edward Ingram, Esq., Robertson, Williams, Ingram, Faulkner & Overbey, Knoxville, Tennessee, for Respondents Smitty 

Baker Coal Company, Inc. and Ralph Baker. 

Judge Melick 

This proceeding is before me on remand from the United 

States Court of Appeals, District of Columbia Circuit, Munsey v. 

Federal Mine Safety and Health Review Commission, 701 F.2d 976 

(1983), cert. denied, 52 U.S.L.W. 3235 (October 3, 1983> (No. 

83-182); for a determination in accordance with the standard set 

forth in National Treasury Employees' Union v. U.S. Department of 

the Treasury, 656 F.2d 848 (D.C. Cir. 1981), of the amount of 

costs and attorneys' fees to be awarded counsel for Complainant 

Munsey for the period during which Mr. Munsey received free representation by staff counsel of his union, the United Mine Workers 

of America CUMWA). 

There is no need to restate here the lengthy history of this 

case. In sum, the individual complainant, Glen Munsey, has been 

awarded damages of $2,858.26 plus interest for lost wages as a 

result of unlawful discrimination under section 110(b)(2) of the 

Federal Coal Mine Health and Safety Act of 1969. In addition, 

for services rendered by counsel for Mr. Munsey, Steven B. Jacobson, Esq., attorneys' fees of $26,462.50 and expenses of $335.16 

have been awarded. Counsel is petitioning herein for additional 

fees of $42,040.00. No hearing has been requested on this matter 

and none has been held. 

2085 
In the amended petition filed by Mr. Jacobson, a request is 

made for attorneys' fees for work done (a) by Mr. Jacobson himself, from the inception of the case until September 1976, while 

Mr. Jacobson was staff counsel for the UMWA, (b) by two other 

UMWA staff attorneys, Charles P. Widman and Willard P. Owens, 

from the inception of the case until September 1976, and Cc) by 

Mr. Jacobson Cand a paralegal in Mr. Jacobson's law firm) for 

work done since the award of attorneys' fees by former Commission 

Administrative Law Judge Forrest Stewart in his decision dated 

September 4, 1981. 

a. Attorney's fees for work performed by Mr. Jacobson while employed by UMWA. Mr. Jacobson seeks fees totalling $3,793.75 for 

this representation. The recognized method of computing reasonable attorneys' fees begins by multiplying a reasonable hourly 

rate by the number of hours reasonably expended. Hensley v. Eckerhart, U.S. , 76 L.Ed.2d 40, (1983); Copeland v.Marshall, 641 F.2d 880 (D.C. Cir. 1980). The resulting figure has 

been termed the "lodestar." The lodestar fee may then be adjusted to reflect a variety of other facto~s. Copeland, supra. 

Counsel for the Complainant submitted the following information with respect to the hours spent representing Mr. Munsey during the period of time he was employed as staff attorney for the 

UMWA. The information was attached as Exhibit A to the affidavit 

of Mr. Jacobson accompanying his current petition for attorney's 

fees. 

Preparation for and attendance at first 1973 D.C. 

Circuit oral argument 

Preparation for and attendance at second 1973 D.C. 

Circuit oral argument 

1973 - 36.75 hours at $50.00/hr. = $1,837.50 

Preparation of Motion to Add P&P as a Respondent 

Preparation of Motion to Add Ralph & Smitty Baker 

as Respondents 

Preparation of Report on Remand Procedures 

1975 - 8.50 hours at $60.00/hour = $510.00 

Preparation of exceptions and reply to opposing 

exceptions to ALJ's decision 

1976 ~ 22.25 hours at $65.00/hr. = $1,446.25 

2086 

20.25 

16.50 

36. 75 

2.75 

2.00 

3.75 

8.50 

22.25 
Total $3, 793. 75 

In his affidavit, counsel explained in connection with the 

noted activities that he maintained a contemporaneous record of 

time spent on the instant case while he was a UMWA staff attorney. 

The hours of work performed were noted on sheets of legal size 

paper kept in his. desk or in the case file. "The task performed, 

and the hours spent on them on the day they were begun, were noted on the sheets the day they were begun. Hours spent on the 

same task on subsequent days were noted as such. *** The hours 

were totaled when each task was completed, and then were transferred to handwritten summary sheets. The summary sheets showed all 

tasks completed, and the total hours spent on each of them." 

While it must be recognized that motivation for maintaining 

detailed and complete time records by a salaried staff attorney 

who apparently was not required to do so by his employer may be 

somewhat lacking, I nevertheless find the submissions herein to 

be sufficient to permit a determination of reasonableness. Accordingly, I find that said counsel reasonably expended 36.75 

hours in 1973, 8.50 hours in 1975, and 22.25 hours in 1976. Mr. 

Jacobson stated in his affidavit that based on conversations with 

attorneys at six law firms and court.decisions awarding fees for 

work performed during that period, the fair market value of his 

services in the Washington, D. C. area was $50 per hour in 1973, 

$60 per hour in 1975, and $65 per hour in 1976. While Respondents, Smitty Baker Coal Company, Inc. and Ralph Baker, object to 

the method of calculating fair market value of services based on 

comparable hourly rates as hearsay, they offer no contradictory 

evidence. Under the circumstances, I find that the rates represented by Mr. Jacobson are reasonable in the community for similar work and that those rates accurately reflect the value of the 

time spent given the uncontested statement of counsel's background and expertise. 

The number of hours reasonably expended by Mr. Jacobson multiplied by reasonable hourly rates result in a lodestar figure 

for the period at issue of $3,793.75. No increase in that amount 

is warranted. 

b. Claim for attorney's fees for work by UMWA staff attorneys 

Widman and Owens. Mr. Jacobson asserts a claim on his own behalf 

for market-value attorneys' fees for UMWA staff attorneys Charles 

P. Widman ($15,600.00) and Willard P. Owens ($8,625.00) on the 

grounds that when he left employment with the UMWA he reached an 

agreement with that union to continue legal representation in 

certain cases including this case in return for the assignment by 

the union to Jacobson of "any and all rights it had to fees recoverable in said actions, both as to work [Jacobson] had performed, 

and as to work performed by Messrs. Widman and Owens." 

2087 
In accordance with the National Treasury Employees' Union 

decision, however, the UMWA is not itself entitled to any abovecost fee allowance in cases of this nature for work performed by 

its salaried staff attorneys. The UMWA is limited to recovery of 

the expense to which it was put in supplying the legal services 

in question. National Treasury Employees' Union, supra, at 855. 

Accordingly the UMWA has no right to assign to Mr. Jacobson an 

above-cost allowance of fees that might be awarded as a result of 

work performed by other staff attorneys. At most the UMWA could 

assign only the recovery to which it would be legally entitled, 

i.e., recovery of the expense to which it was put in supplying 

the legal services in question. No evidence has been presented 

in this case however concerning such expenses. Under the circumstances it is impossible to determine the UMWA interest that 

might be assignable to Mr. Jacobson. 

Clearly, however, those staff attorneys could assign their 

interest to Mr. Jacobson. Such an assignment of an above-cost 

fee allowance in combination with the UMWA agreement with Jacobson would justify the payment of the fees to Mr. Jacobson. Since 

there is no evidence before me, however, of any assignment by 

either of those former UMWA staff attorneys, payment of their 

fees to Mr. Jacobson must be contingent upon sufficient evidence 

of such an assignment. The final order in this case reflects 

that contingency requirement. 

The amount of fees requested on behalf of Widman and Owens 

is challenged by Respondents because of the absence of contemporaneous time records and a delineation of non-productive/unsuccessful time. Messrs. Widman's and Owens' reconstructed time was 

formulated by reference to the pleadings they prepared and the 

length of transcripts of the hearings they attended "recognizing 

that it takes a certain amount of time to prepare a complaint, to 

locate and prepare witnesses, to otherwise prepare for trial, 

etc.". In addition, apparently because his whereabouts were unknown, Mr. Owens' time was reconstructed without any input from 

him. 

I find that the lack of specificity and the absence of contemporaneous documentation and verification in the fee application warrants a downward adjustment in the estimate of hours reasonably expended. Copeland, supra. Accordingly, I find that Mr. 

Widman's time should be reduced to 150 hours and that Mr. Owens' 

time should be reduced to 50 hours. Based upon the proffered 

reasonable hourly rates of $75/hour and 100/hour respectively, 

the lodestar for Mr. Widman is therefore $11,250.00 and the lodestar for Mr. Owens is $5000.00. No further adjustment in the 

lodestars is warranted. 

2088 
c. Attorneys' fees for the period September 1981 through October 

1982. Fees of $14,021.25 are also requested for work performed 

subsequent to the decision of Judge Forrest Stewart on September 

3, 1981. This work was performed by Mr. Jacobson while in private practice located in Los Angeles, California. Fee application is also made for work performed during this period by a paralegal in Mr. Jacobson's law firm, Merna Figoten. The fee petition (Exhibit A) discloses the following information: 

a. Steven B. Jacobson 

1. September 1981 - September 1982 

Review and Analysis of ALJ's Decision 

Preparation of Petition for Commission review 

Prepare petition for D.C. Circuit review 

Prepare Motion to Transfer Baker Appeal from Fourth 

Circuit to D.C. Circuit 

Prepare Opposition 'to Motion to Transfer Munsey Appeal 

to Fourth Circuit 

Preparation of Reply to Baker Opposition to Munsey 

Motion to Transfer 

Prepare Motion for Leave to Intervene in Baker Appeal 

Prepare Motion to Set D.C. Circuit Briefing Schedule 

Prepare D.C. Circuit Brief and Appendix 

Analyze Baker Brief and Prepare D.C. Circuit Reply Brief 

Prepare Extension Motions 

Court, Commission and Labor Department Correspondence 

Client Correspondence 

Total September 1981 - September 1982 

83.00 hours at $115.00/hour = $9.545.00 

2. October 1982 to Present 

Prepare Opposition To Baker Motion To Strike 

Preparation For and Attendance At D.C. Circuit 

Oral Argument 

Review of D.C. Circuit Decision 

Prepare D.C. Circuit Bill of Costs and Review of 

Opposition Thereto 

Client Correspondence 

Preparation of Petition for Attorney's Fees 

Total October 1982 - Present Time 

31.25 hours at 125.00/hour = $3.906.25 

.75 

9.25 

.so 

16.00 

2.00 

2.25 

.75 

3.25 

25.00 

20.25 

1.00 

1.50 

.so 

83.00 

3.75 

18.25 

.25 

1.50 

2.50 

5.00 

31.25 

Total September 1981 - October 1982 Attorney Time $13.451.25 

2089 
b. Merna B. Figoten 

Preparation of D.C. Circuit Briefs 9.50 

9.50 hours at $60.00/hour = $570.00 

Total Septemper 1981 - September 1982 Paralegal Time $570.00 

Exhibit B attached to the fee petition was represented to be 

a copy of computerized time records maintained by Mr. Jacobson's 

current law firm for work performed in this case subsequent to 

the September 3, 1981, decision. It is explained in the accompanying affidavit that it is the practice of attorneys and paralegals in this law firm to prepare handwritten time sheets of the 

work performed each day. The time sheets are then typed up and 

turned in to the computerized central billing facility on a daily 

basis. That facility prepares and keeps a running statement of 

all work performed· on each matter in the law firm from its inception, and prepares periodic bills which are sent to clients. Exhibit B is represented to be the portion of the running statement 

for this case covering the period for which fees are sought. 

Both Mr. Jacobson's and Ms. Figoten's credentials are set forth 

in the affidavit accompanying the fee petition and are not disputed 

Respondents object to the requested fees primarily on the 

grounds that the fees should be reasonable in relation to the 

results obtained. In particular, Respondents object to alleged 

non-productive/unsuccessful time for the period after September 

1981. They note that the Petition for Commission Review raised 

five issues and that two of those issues involved reinstatement 

and two involved interest and increasing the "lodestar" fee determined by Judge Stewart. The Commission denied review of all four 

of these issues and the Circuit Court affirmed that decision. 

Respondents further note that the fifth issue (allowance of fees 

during counsel's tenure with UMWA) represented only a small segment of the Petition. They also point out that the appeal was 

successful on only that one issue in proceedings before the Circuit Court and was unsuccessful in any matter of benefit to Mr. 

Munsey-. Further objections are based upon alleged unnecessary 

procedural matters and excessive time spent upon preparation of 

the second petition for attorneys' fees which duplicated in large 

part the earlier fee petition filed with Judge Stewart. 

Certainly to the extent that there has been but limited success in the review process there is indeed merit to the Respondent's allegations. It is apparent moreover that the limited 

2090 
claim which was successful did indeed relate to an issue of no 

direct benefit to the victim of discrimination in this case. Under all the circumstances, I find that Mr. Jacobson is entitled 

to compensable time for the period September 1981 - September 

1982 of 40 hours and for the period since October 1982 of 15 

hours. I further find that compensable time of 4 hours for paralegal Figoten is appropriate. Hensley, supra.; Copeland, supra. 

at pp. 891-892. 

Mr. Jacobson stated that his billing rate was $115 per hour 

for work performed during the period September 1981 through September 1982 and $125 per hour for work performed since October 

1982. According to the affidavit, these rates were based upon 

"exhaustive surveys of rates charged by law firms in the Los Angeles area and are, if anything, somewhat low, given my experience 

and expertise." It is further represented that Ms. Figoten's 

billing rate was $60 per hour during the time she worked on this 

case. Ms. Figoten's billing rate "was likewise set after an exhaustive survey of rates charged by Los Angeles law firms, and is 

likewise no greater than the average rate charged here." While 

these rates are again challenged by Respondents as based upon 

hearsay, they submit no contradictory evidence. Accordingly, I 

find the rates quoted to be reasonable in the community for similar work. I also find that the quoted rates accurately reflect 

the value of Mr. Jacobson's and Ms. Figoten's time, given their 

backgrounds. 

The number of hours reasonably expended by Mr. Jacobson during the period at issue multiplied by the corresponding hourly 

rates results in a lodestar figure of $5225.00. The number of 

hours reasonably expended by Ms. Figoten multiplied by the reasonable hourly rate result in a lodestar figure for the paralegal of 

$240.00. 

While the overall attorney fee award in this case is more 

than seventeen times the damages awarded the actual victim of 

discrimination, it is well recognized that market value fee 

awards in cases such as this take into account the need to assure 

that miners with bona fide claims of discrimination are able to 

find capable lawyers to represent them. In addition, the success 

in this case represents a vindication of societal interests incorporated in the mine safety legislation above and beyond the particulir individual rights vindicated in the case. Accordingly I 

do not find the substantial fee award in this case to be excessive or in the nature of a "windfall". 

Order 

Under· prior decisions rendered in this matter, the Respondents, namely Ralph Baker, Smitty Baker Coal Company, and P&P 

2091 
Coal Company, were ordered jointly and severally to pay the total 

amount of $2,858.26 plus interest "computed on the total amount 

at a rate of 8% until the date of payment". It has also been 

previously ordered that Respondents jointly and severally pay 

attorney's fees in the amount of $26,462.50 and expenses in the 

amount of $335.16 to Steven Jacobson, Esq. In addition to payment ·of the above amounts, it is further ordered that the Respondents, jointly and severally, pay {a) the additional amount of 

attorneys' fees in the amount of $9,018.75 to Steven Jacobson, 

Esq., and fees to the law firm of De Castro, West & Chodorow, 

Inc. for the services of paralegal Merna Figoten in the amount of 

$240.00; and, Cb> attorney's fees in the amount of $16,250.00 to 

Steven Jacobson, Esq., upon presentation to Respondents and the 

undersigned of an assignment to Mr. Jacobson of the respective 

interests of Charles P. Widman, Esq., and Willard P. Owens, Esq., 

in such attorneys' fees. Payment of ounts due must be made 

within 30 days of the date of his de~· 

Distribution: 

Steven B. Jacobson, Esq., De Cas ro, West & Chodorow, Inc., Eighteenth Floor, 10960 Wilshire Boulevard, Los Angeles, CA 90024 

{Certified mail) 

J. Edward Ingram, Esq., Robertson, Williams, Ingram, Faulkner & 

Overbey, Tenth Floor Andrew Johnson Plaza, Knoxville, TN 37902 

{Certified mail) 

P&P Coal Company, P.O. Box 219, Pennington Gap, VA 24277 {Certified mail> 

nsw 

2092 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 131983 

UNITED MINE WORKERS OF AMERICA, 

LOCAL UNION NO.. 1197, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BETHLEHEM MINES CORPORATION, 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondents 

Docket No. PENN 83-234-D 

PITT CD 83-8 

No. 60 Mine 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On September 23, 1983, a complaint was filed under section 

105(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(c) (the "Act"), alleging that Respondent 

Bethlehem has discriminated against Complainant and the miners 

represented by Complainant by utilizing a longwall mining 

machine in the subject mine which produces more than the level 

of dust permitted under 30 u.s.c. § 842, and that Respondent 

MSHA has discriminated against Complainant and the miners represented by Complainant bY failing to enforce the dust standards 

in the statute and regulations against Bethlehem. The complaint 

further alleges that the use by Bethlehem of the machinery complained of, when it knew of MSHA's failure or refusal to enforce 

the Act concerning the machinery "prevents [Complainant] from 

exercising its statutory rights . . . in that if [Complainant] or 

its individual members were to refuse to work because of a 

hazardous condition created by the offending machinery, the 

employee asserting that right would be subject to discharge 

.... " As relief, Complainant seeks an order to withdraw the 

machine from the mine or an order limiting the time miners are 

exposed to the resulting respirable dust. 

On October 20, 1983, Respondent Bethlehem filed a motion to 

Dismiss on the grounds that the complaint does not allege that 

Complainant (or its members) were engaged in activity protected 

by the Act and that adverse action was taken against them on 

account of such activity. 

2093 
On October 27, 1983, Respondent MSHA filed a motion to 

dismiss on the grounds that the complaint failed to state a 

cause of action under section 105(c) of the Act and that the 

Commission does not have authority to grant the relief sought. 

On December 6, 1983, Complainant filed a Memorandum in 

Opposition to the Motions to Dismiss and affidavits from two 

members of Complainant Local Union who work at the subject mine 

and are members of the Safety Committee. 

ISSUES 

1. Does the complaint state a cause of action under section 

lOS(c) of the Act? 

2. Is MSHA a "person" under section lOS(c) and subject to 

its prohibition against discrimination? 

3. Does the Commission have jurisdiction to grant the relief 

sought in the complaint? 

THE STATUTE 

Section lOS(c) (1) of the Act provides as follows: 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment in any 

coal or other mine subject to this 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. 

2094 
The provision prohibits adverse action ("discharge or in 

any manner discriminate against") against a miner or representative of miners because of activity protected under the Act. Such 

protected activity includes filing or making a complaint under 

the Act, instituting or testifying in a proceeding under the Act, 

requesting an inspection, accompanying an inspector as a miner's 

representative, receiving adequate training, and ref~sing to perform work in conditions reasonably believed to be unsafe or 

unhealthful. 

The complaint herein alleges that Bethlehem utilizes a longwall mining machine which causes excessive concentrations of 

respirable dust and that MSHA has failed to enforce the dust 

standards in the Act and Regulations. Does this allege protected 

activity on the part of Complainant? The activity described in 

the complaint as protected is not the complaints made to 

Bethlehem or MSHA, but rather seems to be that Bethlehem continues 

to violate the dust standards and that MSHA refuses to enforce the 

standards against Bethlehem. However, illegal and reprehensible 

this alleged situation may be, by itself it can hardly be converted 

to the exercise by Complainant of rights protected by the Act. 

Complainant, as a representative of the miners, is given special 

responsibility under the Act. Certainly, it has the right and 

duty to report unsafe or unhealthy mine conditions to MSHA, and 

is protected under lOS(c) in making such reports. See UMWA 

Local 9800 v. Secretary and Dupree, 3 FMSHRC 958 (1981) (ALJ). 

However, that is not the activity alleged in this case. I conclude 

that the complaint does not allege that Complainant was engaged in 

activity protected under the Act. 

Further, the adverse action alleged is merely the speculation that the members of Complainant would be discharged if they 

refused to work because of hazardous conditions. This is not 

adverse action, but only the possibility of future adverse action. 

The complaint also seems to allege that being required to work in 

an unhealthy environment is adverse action. But Complainant and 

its members are not required to work in an environment reasonably 

believed to be unhealthy, and they would be protected if they 

refused to work under such conditions. I conclude that no past or 

present adverse action has been alleged here. 

Therefore, I conclude that the complaint does not state a 

cause of action under section 105(c) of the Act. 

IS MSHA SUBJECT TO lOS(c) 

Section 105(c) is directed to "any person." I have previously held that MSHA is a person under section lOS(c) prohibited 

from discriminating against a miner or representative of miners 

and affirm that conclusion here. See Local 9800 UMW v. Secretary 

and Dupree, 2 FMSHRC 2600 (1980) (ALJ). 

2095 
COMMISSION JURISDICTION TO GRANT RELIEF 

Section 103(g) of the Act gives the miners' representative 

the right to call for an immediate inspection by giving MSHA 

notice of an alleged safety or health violation or an imminent 

danger in a mine. If MSHA determines that a violation or danger 

does not exist it must so notify the representative in writing. 

Under 30 C.F.R. § 43.7, the representative of the miners 

may obtain an informal review by the MSHA District Manager or 

his agent who is required to furnish a written statement of the 

reasons for the final disposition of the matter. 

The Act does not provide for Commission review of such 

disposition and MSHA argues that the Commission has no jurisdiction in such cases. In view of my holding that the complaint 

herein does not state a cause of action, it is unnecessary to 

rule on this issue, and I do not do so at this time. 

ORDER 

Therefore, IT IS ORDERED that this proceeding is DISMISSED 

for failure to state a cause of action under section 105(c) of 

the Act. 

Distribution: 

~~d~~d_ 1 James A. Broderick 

Administrative Law Judge 

Robert S. Whitehill, Esq., Rothman, Gordon, Foreman and Groudine, 

300 Grant Building, Pittsburgh, PA 15219 (Certified Mail) 

R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900 Oliver 

Building, Pittsburgh, PA 15222 (Certified Mail) 

Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified .Mail) 

/fb 2096 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

December 14, 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

·Petitioner 

v. 

U. S. STEEL MINING CO., INC., 

Respondent 

Docket No. PENN 82-306 

A.C. No. 36-05018-03502 

Cumberland Mine 

DECISION APPROVING SETTLEMENT 

Appearances: 

Before: 

Thomas A. Brown, Esq., Office of the Solicitor, 

U. S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, 

Pennsylvania, for Respondent. 

Judge Merlin 

This case is before me upon a Petition for Assessment 

of Civil Penalty under Section llO(a) of the Federal Mine 

Safety and Health Act of 1977 (the Act). The Petitioner has 

made a motion to approve a settlement agreement. Payment of 

the original penalties of $217 was proposed. At the hearing 

I determined that the prof ferred settlement was appropriate 

under the criteria set forth in Section llO(i) of the Act. 

I now affirm that determination. 

WHEREFORE, the motion for approval of settlement is 

GRANTED and it is ORDERED that Respondent pay $217 within 30 

days from the date of this decision. 

Law Judge 

Distribution: 

Thomas A. Bbown, Esq., Office of the Solicitor, U. S. Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., U. S. Steel Mining Co., Inc., 600 

Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified 

Mail) 

/ln 2097 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 14, 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. PENN 83-221 

A.C. No. 36-00970-03527 

v. 

Maple Creek No. 1 Mine 

U. S. STEEL MINING CO., INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Thomas A. Brown, Esq., Office of the Solicitor, 

u. S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, 

Pennsylvania, for Respondent. 

Judge Merlin 

Statement of the Case 

This case is a petition for the assessment of civil 

penalties filed under section llO(a) of the Act by the 

Secretary of Labor-against U. S. Steel Mining Company, Inc. 

for three alleged violations of the mandatory safety standards. 

30 C.F.R. §§ 75.1704, 75.200 and 75.1725(c). 

The hearing was held as scheduled and documentary 

exhibits and oral testimony were received from both parties. 

At the conclusion of the hearing, I directed the filing of 

written briefs simultaneously by both parties within 21 days 

of receipt of the transcript (Tr. 137). The briefs have 

been received and reviewed. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Tr. 6-8): 

1. U. s. Steel Mining Company, Inc. is the owner and 

operator of the Maple Creek No. 1 Mine. 

2098 
2. The Maple Creek No. 1 Mine is subject to the jurisdiction of the Federal Mine Safety and Health Act of 

1977. 

3. The presiding administrative law judge has jurisdiction 

over this proceeding. 

4. The subject citations, modifications and determinations 

were properly served on the operator by a duly authorized 

representative of the Secretary. The citations, 

modifications and determinations may be admitted 

into evidence for the purpose of establishing their 

issuance and not for the truthfulness or relevancy 

of the statements asserted therein. 

5. The authenticity of all exhibits.is admitted, but 

not the relevancy or the truth of the matters asserted 

therein. 

6. The alleged violations were abated in a timely fashion. 

7. The operator has annual production of 10,943,308 tons. 

8. The subject mine has annual production of 482,015 tons. 

9. All witnesses are accepted generally as experts in 

coal mine health and safety. 

10. There were 3 assessed violations of 30 C.F.R. § 75.1704 

in the 24-month period prior to the subject § 75.1704 

alleged violation but some of the prior violations may 

have been contested. 

11. There were 28 assessed violations of 30 C.F.R. § 75.200 

in the 24-month period prior to the subject § 75.200 

alleged violation but some of the prior violations may 

have been contested. 

12. There were 2 assessed violations of 30 C.F.R. § 1725(c) 

in the 24-month period prior to the subject § 75.1725(c) 

alleged violation but some of the prior violations may 

have been contested. 

13. The payment of the penalties will not affect the 

operator's ability to continue in business. 

2099 
Citation No. 2011053 

The Mandatory Standard 

Section 75.1704 of the mandatory standards, 30 C.F.R. 

§ 75.1704, provides as follows: 

§ 75.1704 Escapeways. 

[Statutory Provisions] 

Except as provided in §§ 75.1705 and 75.1706, 

at least two separate and distinct travelable 

passageways which are maintained to insure passage 

at all times of any person, including disabled 

persons, and which are to be designated as escapeways, at least one of which is ventilated with 

intake air, shall be provided from each working 

section continuous to the surface escape drift 

opening, or continuous to the escape shaft or 

slope facilities to the surface, as appropriate, 

and shall be maintained in safe condition and 

properly marked. Mine openings shall be adequately protected to prevent the entrance into the 

underground area of the mine of surface fires, 

fumes, smoke, and floodwater. Escape facilities 

approved by the Secretary or his authorized 

representative, properly maintained and frequently 

tested, shall be present at or in each escape 

shaft or slope to allow all persons, including 

disabled persons, to escape quickly to the surface 

in the event of an emergency. 

The Cited Condition or Practice 

Citation No. 2011053 cites a violation of 30 C.F.R. 

§ 75.1704 for the following condition: 

There was no directional sign provided where the 

designated intake escapeway from 53 room enters 

the main intake escapeway to Park [Shaft]. 

Persons could make a mistake and go inby to 56 

room. 

2100 
Discussion and Analysis 

The inspector who issued the subject citation testified 

that there was no directional signal for the designated 

escapeway from the 53 room at the main intake escapeway to 

Park Shaft. The inspector expressed the opinion that miners 

could make a mistake and go inby (Tr. 11). The inspector 

testified that the operator marks its escapeways with 

reflectors and that reflectors were present in the escapeway 

on the day the citation was issued (Tr. 15). According to 

the inspector, the reflector nearest the cited intersection 

was 50 feet outby the intersection (Tr. 26-27). The inspector admitted that miners coming to the intersection 

would see a green reflector when looking to the left (outby) 

and would not see any reflector if they looked to the right 

(inby) (Tr. 16). The inspector stated that the reflector 

was readily visible when the miners got into the escapeway 

(Tr. 27). The inspector further agreed that there was a 

considerable volume of air coming up the intake escapeway at 

the cited intersection and that if a miner were knowledgeable 

of the air in the mine he would know which direction was 

outby based on the direction of airflow (Tr. 19). It was 

the inspector's position that an intersection should have a 

directional arrow marking the exit route even when a reflector is used. He acknowledged the operator was never put 

on notice an arrow was required in addition to the reflector 

(Tr. 23-24). 

The assistant mine foreman who accompanied the inspector 

during the inspection testified that the intake escapeways 

are marked with green reflectors, the return escapeways are 

marked with red reflectors and the alternate return escapeway 

is marked ·with white reflectors (Tr. 31, 34). The reflectors 

are usually hung from the roof in the middle of the entry 

(Tr. 32). Contrary to the inspector's testimony, the 

assistant mine foreman stated that in this instance there 

was one reflector about 20 feet outby the cited intersection 

and another one approximately 85 feet outby (Tr. 32). He 

said that miners would see green reflectors if they looked 

to the left at the intersection and the miners were trained 

to follow the reflectors (Tr. 35-36). While admitting that 

miners must come into the intersection to see the reflector 

20 feet away, the assistant mine foreman noted that the 

miners have to enter the intersection in order to escape 

(Tr. 37). He also stated that reflectors are a better 

indicator than arrows when smoke is present because the 

2101 
arrows are on porcelainized metal signs that are not reflective (Tr. 33, 38). Additionally, the assistant mine 

foreman testified that in traveling to the shaft bottom in 

the intake escapeway miners simply keep the air current to 

their faces. He stated that the air velocity at the cited 

intersection is 24,000 cubic feet per minute, which is 

sufficient to enable miners to feel the air current on their 

faces (Tr. 33, 36). 

The subject standard mandates only that escapeways be 

"properly marked." The term "properly marked" is not 

defined. Specific types of markings and their placement are 

not delineated. The evidence is clear that the operator 

used green reflectors in the cited escapeway. I accept as 

more persuasive the operator's evidence regarding the distance of the reflector from the intersection. Based upon 

the record I find that the reflector was clearly visible 

when looking l~ft from the intersection and that miners were 

properly trained as to what the reflectors meant. I am 

unpersuaded by the Solicitor's argument that reflectors are 

inadequate because miners must enter the intersection before 

observing the reflector since miners must enter the intersection to make use of the escapeway. Also, there is no 

merit to the argument that the reflectors are inadequate 

because smoke would obscure miners' vision of the reflectors. 

The testimony shows that where there is smoke reflectors are 

more visible than arrows. 

In light of the foregoing, I conclude the escapeway was 

properly marked within the meaning of the mandatory standard. 

If the Secretary believes something more or different than 

reflectors should be required, he must undertake to change 

the standard. He cannot accomplish such a result merely by 

issuing a citation on an ad hoc basis in an individual 

situation. Accordingly, Y-conclude there was no violation 

and the citation is vacated. 

I have reviewed the briefs. To the extent they are 

inconsistent with the findings and conclusions set forth 

above they are rejected. 

2102 
Citation No. 2012693 

The Mandatory Standard 

Section 75.200 of the mandatory standards, 30 C.F.R. 

§ 75.200 provides as follows: 

§ 75.200 Roof control programs and plans. 

[Statutory Provisions] 

Each operator shall undertake to carry out on 

a continuing basis a program to improve the roof 

control system of each coal mine and the means and 

measures to accomplish such system. The roof and 

ribs of all active underground roadways, travelways, 

and working places shall be supported or otherwise 

controlled adequately to protect persons from 

falls of the roof or ribs. A roof control plan 

and revisions thereof suitable to the roof conditions and mining system of each coal mine and 

approved by the Secretary shall be adopted and set 

out in printed form on or before May 29, 1970. 

The plan shall show the type of support and spacing 

approved by the Secretary. Such plan shall be 

reviewed periodically, at least every 6 months by 

the Secretary, taking into consideration any falls 

of roof or ribs or inadequacy of support of roof 

or ribs. No person shall proceed beyond the last 

permanent support unless adequate temporary 

support is provided or unless such temporary 

support is not required under the approved roof 

control plan and the absence of such support will 

not pose a hazard to the miners. A copy of the 

plan shall be furnished to the Secretary or his 

authorized representative and shall be available 

to the miners and their representatives. 

2103 
The Cited Condition or Practice 

Citation No. 2012693 cites a violation of 30 C.F.R. 

§ 75.200 for the following condition: 

No. 33 room intersection in "A" heading was 35 

feet from corner to corner both diagonals. Total 

distance 70 feet. One part of 33 room intersected 

at a 52° angle. The roof control plan stipulates 

if either diagonal or a total of both diagonals 

exceed 32 feet or 62 feet, respectively, additional 

support posts and/or crib will be installed. 

Section was supervised by R. Franks. 

Discussion and Analysis 

The inspector who issued the subject citation testified 

that the cited intersection was wider than allowed by the 

roof control plan (Tr. 44-45). Drawing No. 4 of the plan 

contains the statement that if the diagonal distances in an 

intersection exceed 32 feet each or if the sum of the 

diagonals exceeds 62 feet, additional support shall be 

provided (MSHA Exh. 3). According to the inspector's 

measurements, each diagonal distance in the cited intersection was 35 feet (Tr. 45). These measurements are not 

disputed. Drawing No. 4 itself is a four-way intersection 

with the entries meeting at right angles. The cited intersection was not created by four entries joining at right 

angles. One of the ·entries joined the intersection at a 52° 

angle ("B" on Op. Exh. 1, Tr. 60). 

The existence of a violation depends upon whether the 

statement on Drawing No. 4 applies to this case. The 

operator contends it does not because the statement only 

applies when entries meet at right angles as they do in the 

drawing. I must reject this argument. I find the drawing 

illustrative rather than exclusive and conclude that the 

statement applies to all four-way intersections where the 

entries come together at the same place regardless of the 

precise angles at which they meet. The title of Drawing No. 

4 is "Minimum Permanent Roof Support for Intersections." 

Moreover, the plan contains no other provision concerning 

minimum diagonal lengths for intersecting entries. To limit 

the general statement requiring additional supports to the 

precise configuration depicted by the drawing would render 

2104 
the plan wholly inadequate by leaving untreated a large and 

crucial portion of roof control. Accordingly, I find that 

in this case additional bolting should have been provided as 

required by the plan. Because there was no such additional 

bolting I conclude a violation existed. 

I further conclude the violation was significant and 

substantial. The inspector testified that there was a slip 

running down the center of the roof of the 33 room which 

went across the intersection and into the rib where entry 

"B" entered the intersection (Tr. 46). The inspector 

sounded the top of the roof with a metal-capped walking 

stick and noted that the top was heavy. The heavy top 

indicated to the inspector that the roof could change at any 

time, especially where, as here, the intersection was larger 

and the diagonals greater than allowed by the plan. I 

conclude that based on the foregoing factors the violation 

was "significant and substantial" within the meaning of that 

term as defined by the Commission in Cement Division, 

National Gypsum Company, 3 FMSHRC 822 (1981). 

I further find the operator was negligent. The operator 

drove entry ''B" at a 52° angle because track was going to be 

put down. Although driving the entry at such an angle is 

permissible, additional roof support should have been provided as required by the plan because more coal had been cut 

away than in normal situations. The slip added to the 

hazard. There is no dispute that the operator knew of all 

these things. 

The remaining statutory criteria are set forth in the 

stipulations. After consideration of all the criteria a 

penalty of $250 is assessed for this violation. 

I have reviewed the briefs. To the extent they are 

inconsistent with the findings and conclusions set forth 

above they are rejected. 

2105 
Citation No. 2012695 

The Mandatory Standard 

Section 75.1725(c) of the mandatory standards, 30 

C.F.R. § 75.1725(c) provides as follows: 

§ 75.1725 Machinery and equipment; operation 

and maintenance. 

(c) Repairs or maintenance shall not be 

performed on machinery until the power is off and 

the machinery is blocked against motion, except 

where machinery motion is necessary to make 

adjustments. 

The Cited Condition or Practice 

Citation No. 2012695 cites a violation of 30 C.F.R. 

§ 75.1725(c) for the following practice: 

Men were observed in the boom at the continuous 

miner, working on the conveyor chain and the power 

source for CM-12 S/N JM 3226 was not disconnected 

at the power source. Section supervised by 

R. Franks. 

Discussion and Analysis 

The inspector who issued the subject citation testified 

that he saw men in the boom of a continuous miner and beside 

the boom beating with a sledge hammer on what appeared to be 

a flight chain. The power was cut off at the machine rather 

than disconnected at the source (Tr. 102-103). The inspector 

took the position that the miners might be seriously injured 

or killed if the machine became energized and that power had 

to be cut off not only at the machine but at the power 

source (Tr. 103-104). However, he was not certain what the 

miners were doing at the machine (Tr. 107-108). He did not 

appear to be familiar with how the cited continuous miner 

actually worked (Tr. 106-107, 110-113, 115-116, 136). 

The operator's maintenance foreman who testified demonstrated familiarity and knowledge about the operation of the 

continuous miner. He explained that in order for power to 

reach the tail section of the conveyor where the miners were 

located, someone would have to set the main power breaker 

2106 
and the control breaker on the left side of the machine, 

walk around to the right side of the machine and turn on a 

control switch in the cab, turn on the pump motor and then 

start the conveyor (Tr. 118, 121-123). The maintenance 

foreman admitted that equipment can malfunction, but stated 

that in this instance five different pieces of equipment 

would have to malfunction at the same time for power to 

extend to the area in question (Tr. 120). 

The maintenance foreman stated that the miners were 

repairing a broken conveyor chain when the citation was 

issued and that the machine's power must be used to repair 

the chain (Tr. 123-124). He further explained that the 

conveyor has to be raised, lowered, and swung to one side; 

that the conveyor is swung to one side and brought back to 

the normal position to slacken the chain; that the chain is 

then recoupled and put back on the drive sprocket; and that 

the chain comes off the drive sprocket every time it breaks 

(Tr. 125). According to the foreman machine power is 

necessary to make all these various adjustments because the 

pump motor must be running to raise the conveyor, swing it 

and drop it (Tr. 126-127). 

I accept the foregoing testimony from the foreman. 

Indeed, as already noted the inspector did not know how the 

machine operated or even what repair work was being done. 

I am constrained to decide this case on this record where 

the evidence submitted by the operator is manifestly 

superior to that offered by the Solicitor who barely 

cross-examined the operator's witness and whose inspector 

did not know much at all about the machine he cited. 

Accordingly, I conclude that machinery motion was 

necessary to make adjustments and that under the circumstances the operator should not have been required to cut 

the power at the source and necessitate frequent trips 

back and forth from it to the continuous miner in order 

to effectuate the necessary repairs to the broken chain. 

I conclude there was no violation. This citation is 

Vacated. 

I have reviewed the briefs. To the extent they are 

inconsistent with the findings and conclusions set forth 

above they are rejected. 

2107 
ORDER 

In light of the foregoing, it is hereby ORDERED that 

Citation Nos. 2011053 and 2012695 are VACATED. 

It is further ORDERED that with respect to Citation No. 

2012693, the operator shall pay $250 within 30 days from the 

date of this decision. 

~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: · 

Thomas A. Brown, Esq., Office of the Solicitor, U. S. 

Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., U. s. Steel Mining Co., Inc., 600 

Grant Street, Pittsburgh, PA 15230 (Certified Mail) 

/ln 

2108 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . DEC 15 \983 

VESTA MINING COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

Docket Nos: Citations 

PENN 83-171-R 2104356 

PENN 83-172-R 2104357 

PENN 83-173-R 2104358 

PENN 83-174-R 2104359 

PENN 83-175-R 2104360 

PENN 83-176-R 2104632 

PENN 83-177-R 2104633 .. PENN 83-178-R 2104634 

PENN 83-179-R 2104635 

PENN 83-180-R 2104636 

v. PENN 83-181-R 2104637 

PENN 83-182-R 2104638 

PENN 83-183-R 2104639 

PENN 83-184-R 2104640 

PENN 83-185-R 2104648 

PENN 83-186-R 2104649 

PENN 83-187-R 2104650 

PENN 83-188-R 2104651 

PENN 83-189-R 2104652 

PENN 83-190-R 2104653 

PENN 83-191-R 2104654 

PENN 83-192-R 2105121 

SECRETARY OF LABOR, PENN 83-193-R 2105122 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

PENN 

PENN 

PENN 

83-194-R 2105123 

83-195-R 2105124 

83-196-R 2105125 

Appearance: 

Before: 

PENN 83-215-R 2105330 

Vesta Mine 

DECISION 

·Michael T. Heenan, Esq., Smith, Heena, Althen 

and Zanolli, Washington, DC, for Contestant; 

Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, DC, Intervenor; 

Robert A. Cohen, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Viginia, 

for Respondent. 

Judge Moore 

2109 
These cases were heard in the Commission's Falls Church 

hearing room on September 20, 1983. Representatives of the 

government, the company, and the United Mine Workers of 

America all presented evidence and the government an9 company 

filed briefs. There was a prehearing conference at which 

the United Mine Workers of America was not represented. At 

that conference certain drawings were presented, and while 

there ar~ minor differences the photographic and sketch 

material attached to Vesta's answer to the government's 

motion to dismiss and the exhibit presented at the pre-trial 

conference and· government Exhibit R-4 all describe the 

electrical connections used in Vesta's transformers. In the 

testimony, these transformers are sometimes referred to as 

power centers or load centers, or in one case, as rectifiers. 

This last term was a misnomer as a rectifier is a device 

which converts alternating current into direct current. 

The knife switch referred to hereinafter is sometimes 

referred to in the testimony as a "load brake switch" or as 

a" visible disconnect switch". 

Because of the electrical configuration of the transformers, 

which will be described later, MSHA first issued a citation 

as to one of those transformers. It later decided that 

there was no violation and vacated that first citation. 

MSHA then issued 26 citations, being one for each transformer. 

Notices of contest were filed with a request for an expedited 

hearing. 

Shortly after the conference mentioned earlier, and 

because MSHA believed there had been procedural errors in 

the way the 26 citatio~s were issued, it vacated those 

citations and moved to dismiss the notices of contest. 

Vesta objected to the dismissals because it contended it had 

a right to a decision on the merits but stated that if I did 

dismiss the cases it should be with prejudice against MSHA 

issuing citations concerning the particular transformers 

involved. The United Mine Workers of America then intervened 

and objected to the vacation of the citations and pointed 

out that I did not have to approve that action. 

Shortly thereafter MSHA decided that Vesta was not 

being cooperative and issued another citation covering all 

26 transformers. Vesta then filed another notice of contest 

with a request for an expedited hearing and a request that 

all of the cases be consolidated. · · 

Vesta's response to the Secretary's motion to dismiss 

the first 26 notices of contest contains an affidavit of 

Julian Guthrie which has attached diagrams and pictures of 

one of the 26 transformers. A drawing of that transformer 

was presented at the afore-mentioned prehearing conference 

2110 
and there is no dispute as to the essential facts regarding 

that transformer. The transformers in question convert high 

voltage alternating current into low voltage alternating 

current. At the high voltage or outby end of the transformers 

there is a visible disconnect knife-type switch that.clearly 

shows whether the transformer is energized or not. At the 

low voltage end of the transformers there are two circuit 

breakers, (not counting 110-V circuits) one of which is used 

in connection with the solid power line to the belt motors 

and the other is in connection with an auxiliary plug which 

can sometimes be used for other equipment such as a belt. 

vulcanizing device. Any equipment hooked up to the auxiliary 

plug is either plugged in or not, so there is no question 

that the disconnect device assures a visual check. In a 

circuit breaker, on the other hand, the disconnect is inside 

of the housing and there is no way to visually check and be 

sure that a circuit is disconnected. The solid connection 

going to the belt drive motors on the low voltage side 

contains only the circuit breaker as a means of disconnecting 

the transformer from the motors. 

The question is whether the standard allows the type of 

arrangement described. 30 C.F.R. 75.903, a statutory provision, provides 

"disconnecting devices shall be installed in conj unction with the circuit breaker to provide visual 

evidence that the power is disconnected." 

Vesta's transformers clearly contain the knife-switch on the 

high voltage end which provides visual evidence that the 

transformer itself, is disconnected. At the low voltage end 

however, only the auxiliary plug provides visual evidence of 

a disconnection. 

While I have stated that there is no substantial disagreement 

as to the electrical connections in and around the transformers 

some of the witnesses did not interpret government exhibit 

R-4 in the same way. Mr. Lester, MSHA's top electrical 

expert, thought there was a circuit breaker controlling the 

belt drive motor that is not shown on the drawing. Other 

witnesses said that the box marked "breaker main low side" 

controlled the belt drive motor. One witness said that the 

"breaker main low side," when disconnected, would also 

disconnect the vulcanizing plug which has its own circuit 

breaker as shown on government exhibit R-4. Mr. Paine, the 

vice president of Vesta, testified that all of the transformers 

had been modified so that the vulcanizing plug and its 

circuit breaker were hooked into the outby side of the 

"breaker main low side" box. He said that this had been 

done before the hearing. His testimony, taken together with 

the testimony of Mr. Carnathan, an electrician at the Vesta 

2111 
mine, shows that at the time the citations were issued at 

least some of the transformers were connected internally in 

such a way that the vulcanizing plug could not be used if 

the main lowside breaker was disengaged. The vulcanizing 

plug was being used on occasions at the time the cit.ations 

were issued, to vulcanize the belt. Vulcanization of a belt 

is not electrical work and there is no requirement that a 

visual disconnect be provided. There is a requirement, 

however, that the power be taken off of the belt drive motor 

when non-electrical work is being done and as I understand 

government exhibit R-4 as amplified by Mr. Carnathan and Mr. 

Paine, that could not be done with respect to at least some 

of the transformers. If the vulcanizing (auxiliary) plug 

circuit is hooked to the inby side of the motor circuit 

breaker you could not have power in the vulcanizer and no 

power on the drive motor circuit. It could be done now, 

according to Mr. Paine. But whether there was a violation 

of some other standard is not the question before me. A 

step-down transformer, such as the one involved in these 

cases, contains 2 physically separate windings or coils. 

High voltage electricity passing through the primary winding, 

by the process known as electro-magnetic induction, causes 

low voltage current in the secondary or low voltage coil. 

It is the government's position, as expressed by its leading 

electrical inspector, that the low voltage side is a separate 

circuit, and thus requires its own visual disconnect blade. 

When Mr. Lester was on the stand, he mentioned the two breaker 

boxes, one designated a belt starter and the other merely 

designated breaker box on the lower of the two rectangles 

depicted on government exhibit R-4. The lower rectangle is 

designated Westinghouse, and there is no explanation as to 

what that means. Since Mr. Lester did not indicate that a 

visual disconnect was necessary with respect to the "breaker 

box" and the "belt starter box" it is obvious that the 

government is not contending that there need be a visual 

disconnect with respect to each circuit breaker. The government's 

contention insofar as Mr. Lester is concerned, is that since 

the high voltage circuit in the transformer and the low 

voltage circuit are separate circuits, that each needs its 

own visual disconnect switch. Counsel, by questions and 

arguments indicated that it was also a matter of the physical 

distance between the visual disconnect switch on the high 

voltage side of the transformer and the breaker box on the 

low voltage side. The distance in fact, was about twenty 

feet but there were questions concerning whether one hundred 

feet would be close enough or several hundred feet. 

Mr. Blackburn, the president of Tee Engineering Company 

is an electrical engineer and formerly worked under Mr. 

Lester as the district electrician for MSHA's Pikeville 

district. He has designed power centers that are similar to 

the one depicted in government exhibit R-4. It is his 

opinion, directly contrary to that of his former boss, Mr. 

211~ 
Lester, that the power center depicted in government exhibit 

R-4 is in full compliance with 30 C.F.R. 75.903. !_I. Vice 

president Paine, also an engineer, but not electrical, is of 

the same opinion. 

,. . 

When qualified experts disagree to the extent they have 

in this case, a ·close question is presented. Before getting 

to the basis of my decision I will announce that I have 

consolidated all these cases for hearing, I reaffirm my 

refusal to grant MSHA's motion to dismiss the first 26 cases 

and I admit in evidence the documents attached to Vesta's 

opposition to MSHA's motion to dismiss those 26 cases. 

While admitting the drawings and photographs referred to 

above, I am basing this decision primarily on government's 

exhibit R-4. In this respect the two wires leading from the 

"breaker main low side"-one designated fire suppression and 

the other designated pilot check cable-are 110-V circuits 

single-phase power and have nothing to do with the requirements 

of 30 C.F.R. 75.903. In questioning Mr. Lester, I asked 

him, MSHA's leading electrician, whether the system would be 

in compliance if the two 110-volt lines were eliminated and 

if the vulcanizer plug and its breaker box were eliminated. 

His answer was No. He said the high voltage side of the 

transformer was a separate circuit from the low voltage side 

and that the visual disconnect switch on the high voltage 

side did not satisfy the regulation. 2/ In the simplified 

hypothetical that I was asking about there would be 7200 

volts going into the high voltage side of the transformer 

and there would be a visual disconnect switch at that 

point. There would be a breaker box on the low voltage side 

of the transformer and through that box, 480 volts would go 

to the belt drive motor. In my view, even though it is 20 

feet away, the visual disconnect switch is "in connection 

with" the breaker, even though there is no physical connection 

between the high voltage side of the transformer and the low 

voltage side. 

I do not think the safety arguments made by the parties 

affect this result. On the one hand, the argument is that 

with a visible disconnect plug such as the vulcanizer plug 

on government exhibit R-4, you could easily verify that the 

circuit is broken. The other argument is that in a dark and 

wet mine mistakes in tracing lines are made and it is much 

easier to simply go to the transformer and use the visual 

disconnect switch knowing that everything downstream of that 

.!/ I am not giving consideration to the affidavit attached 

to the government's brief. If the government thinks it has 

evidence of perjury it should consult the United States 

Attorney's Office. 

'?:_/ ·Without objection Mr. Heenan altered government exhibit R-4 

to show that the "breaker main low side" controlled the 

power to belt drive motor. 

2113 
switch would be safe to work on. I can not say which safety 

argument has the most weight, but I can say that if MSHA 

wants the visual disconnect switch on the low voltage side 

of the transformer or if it wants a visual disconnect switch 

for every circuit breaker box, it can so state in its standard. 

It is obvious from this record that the MSHA electrical 

inspectors have not all agreed with Mr. Lester. 

I hereby VACATE all 27 citations. These cases are 

DISMISSED. 

Proposed findings not included herein are REJECTED. 

Distribution: 

Michael T. Heenan, Esq., 

1110 Vermont Avenue, NW., 

Mail} 

~f.lll~~· Charles C. Moore, Jr., 

Administrative Law Judge 

Smith, Heenan, Althen and Zanolli, 

Washington, D.C. 20005 (Certified 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

15th Street, NW., Washington, D.C. 20005 (Certified Mail} 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail} 

/db 

2114 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC i 51983 

ALBERT J. DICARO, 

Complainant 

COMPLAINT OF DISCRIMINATION 

v. 

UNITED STATES FUEL_ COMPANY, 

Respondent 

Docket No. WEST 82-113-D 

MSHA Case No. DENV CD 82-3 

DECISION ON DAMAGES AND OTHER RELlEF 

Before: Judge Fauver 

Complainant filed his complaint on February 15, 1982, 

alleging he was discharged on October 23, 1981, for engaging 

in protected activities in violation of section 105(c) (1) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 

801, et seq. 

The matter was heard on the issue of liability in July, 

1982. My decision on liability was entered on May 26, 1983, 

holding that Complainant was unlawfully discharged on 

October 23, 1981. The hearing on damages and other relief 

was held on August 9, 1983. 

Counsel for the parties have stipulated: 

1. Had Complainant not been discharged, the maximum 

amount of his wages and overtime in Respondent's employment 

from October 23, 1981, through August 9, 1983, would have 

been $44,613.00. 

2. Interest is to be calculated on back pay on a 

calendar quarter accrual basis. 

3. The rate of interest to be applied shall be twelve 

percent (12%). 

4. The instant case is the Complainant's attorney's 

first case involving the Federal Mine Safety and Health Act. 

5. Complainant's attorney's law firm has never represented 

clients in a matter involving the Federal Mine Safety and 

Health Act prior to the instant case. 

6. Complainant's attorney's law firm has a fee schedule 

range of $75.00 per hour to $125.00 per hour. 

Having considered the contentions of the parties and the 

record as a whole, I find that the preponderance of the reliable, 

probative, and substantial evidence establishes the following: 

2115 
FINDINGS OF FACT 

1. Complainant attempted to mitigate the damages suffered 

by him as a result of his wrongful discharge by the Respondent 

by applyi.ng for other employment. The Complainant applied for 

employment at the following- companies: 

(a) as a coal miner at Tower Resources on 

November 9, 1981; 

(b) as a coal miner at Price River Coal Company 

on November 12, 1981; 

(c) at Plateau Mining Company on December 2, 

15, and 17, 1981; 

(d) at Coastal States Mining on December 21, 

29, 1981 and January 19, 1982; 

(e) as a coal miner at Emery Mining Corporation 

in March of 1982 and was told he did not 

get the job because. of a recommendation of 

the Respondent, United States Fuel Company; 

(f) as a coal miner with Valley Camp on 

March 22, 24, 29, April 23, 26, May 3, 7, 

12, 1982; 

(g) at Dinos~ur Tire in Price, Utah on several 

occasions; 

(h) at State Department of Employment Services 

in Price, Utah; 

(i) at Carbon County Sheriff's Department for 

the position of Deputy Sheriff; 

(j) at H & J Supply Company in Price, Utah; 

(k) at Gemco Corporation, Price, Utah. 

2. Complainant was employed by Terry Fry, a contractor 

of Plateau Mining during the period at issue. Complainant 

earne~ $1,000 at such employment. He was also employed by 

One Stop Video Shop on a piecework basis during that period. 

2116 
Complainant's duties included cleaning video machines on a 

piecework basis and he earned a maximum of $200 from said 

employment. 

3. Complainant also worked for Western States Hydraulics 

during the same period. The Complainant's earnings were a 

maximum of $200 from Western States Hydraulics. The total 

received by Complainant from employment during the interim period 

in question was $1,400. 

4. As of the date he was discharged by Respondent, Complainant 

had a 5% permanent partial disability because of an accident in 

Respondent's mine. Later Complainant filed a petition with the 

Industrial Commission of Utah seeking additional permanent partial 

disability and temporary total disability for a period beginning 

November 5, 1982. Complainant filed the petition on his own 

behalf and without the aid of counsel. At the hearing, Complainant 

testified in response to a question from counsel for Respondent, 

United States Fuel Company, "I think I can perform as a roof bolter." 

Complainant's allegation of temporary disability was based 

upon his doctor's opinion, and in his (Complainant's) opinion, 

he could have worked. 

5. The Industrial Commission of Utah referred Complainant 

to its medical panel which consisted of Dr. Thomas D. Rosenburg in 

Salt Lake City, Utah. Dr. Rosenburg examined Complainant and 

concluded that there was no temporary total disability. He also 

concluded that the permanent partial disability in Complainant's 

knee had increased from 5 percent to 15 percent. The Industrial 

Commission adopted the findings of the medical panel and found: 

[T]he applicant (referring to Complainant) was 

not temporarily totally disabled after November 

5, 1982 and the percentage of permanent physical 

impairment attributable to the applicant's 

industrial injury is 15 percent of the right 

lower extremity. This percentage has changed 

from 5 percent (torn medial meniscus meniscectomy) 

to 15 percent in view of the significant 

associated disease of articular cartilage in the 

medial compartment of the patient's right knee. 

2117 
6. In this proceeding, Counsel for Complainant has 

spent 195 hours representing Complainant. 

DISCUSSION WITH FURTHER FINDINGS 

The general issue is the amount of the recoverable damages 

sustained by Complainant as a result of his unlawful discharge 

on October 23, 1981. 

In particular, the issues are: 

(1) Was Complainant physically able to work for Respondent 

on and after November 5, 1982? If not, should his back pay 

award be reduced for any period in which he was unable to 

work for Respondent? 

(2) Should Complainant's back pay award be reduced by 

an amount representing Complainant's rate of absenteeism 

while employed by Respondent? 

(3) Should the decision on liabilitiy be reconsidered 

and resolved against Complainant because of new evidence on 

Complainant's credibility introduced at the August 9, 1983, 

hearing on damages? 

(4) What hourly rate should be applied in awarding an 

attorney's fee for Complainant's legal representation in 

this proceeding? 

Section 105(c) (2) of the Act states, among other things: 

The Commission shall have authority ..• 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. *** 

The legislative history shows a Congressional intent to 

have section 105(c) interpreted and applied liberally to 

achieve its broad, remedial purposes. See, e.g., Sen. Rep. 

No. 95181, reprinted in Leg. Hist. 625, in which the Senate 

Committee reporting the bill stated as to relief: 

2118 
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. Thus, for example, where 

appropriate, the Commission should issue broad 

cease and desist orders and include requirements for the posting of notices by the operator. 

In Secretary on behalf of Dunmire and Estle v. Northern 

Coal Company, 4 FMSHRC 126 at 142 (1982), the Commission 

stated that· the "broad remedial charge [of section 105{c) 

(2)) 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" 

and that "back pay [is] 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." 

Back pay is "ordinarily the sum equal to the gross pay 

the employee would have earned but for the discrimination 

less his actual net interim earnings." Dunmire, above, at 

144. 

Ability To Work 

Since-. November 5, 1982 

Respondent contends that Complainant's claim before the 

Utah Industrial Commission establishes that he was not physically 

able to work for Respondent on and after November 5, 1982. 

However, the Utah Industrial Commission ruled, after having 

Complainant medically examined, that Complainant was not entitled 

to temporary disabi·li ty and was capable of working on and 

after. November 5, 1982. Before his discharge on October 23, 

1981, Complainant had a 5% lower extremity impairment because 

of a knee injury in Respondent's employment. The Ut~h Industrial 

Commission found, based on its medical panel report, that after 

November 5, 1982, this impairment increased from 5% to 15%. 

However, there was no finding that he was unable to perform 

work as a miner in Respondent's employment. I find that the 

preponderance of the evidence in the instant case does not establish 

2119 
that Complainant.has been.physically unable to work as a 

miner in Respondent's employment since November 5, 1982. 

Absenteeism 

Respondent proposes that the back pay award be reduced by 

Complainant's rate of absenteeism while employed by Respondent. 

I find no precedent for this contention. Use of this extreme 

and speculative approach to back pay relief would not be 

consistent with the broad, remedial charge of the statute. 

Attorney's Fee 

I agree with Respondent's contention that Complainant's 

attorney's fee should be set at $75 an hour, i.e., the lower 

rate in the law firm's schedule of fees. In reaching this 

decision I .have considered the following factors, among others: 

1. This proceeding is the first case involving the Mine 

Act that Complainant's attorney has handled as an attorney. 

2. Complainant's attorney's law firm has never represented 

clients in matters involving the Mine Act before th~s proceeding. 

3. Complainant's attorney's law firm has a fee schedule 

range of $75 to $125 an hour. 

The Motion. to· Re:cons·ider· 

Respondent has moved to reconsider my decision on liability 

(May 26, 1983) based on "serious questions concerning the 

credibility of the Complainant" which Respondent contends were 

raised by "new evidence" at the hearing on damages (August 9, 

1983). I have fully considered the August 9, 1983, transcript 

and exhibits and conclude that credibility issues on damages do 

not warrant reconsideration of the decision on liability. 

ORDER 

WHEREFORE IT IS ORDERED that, within 15 days of the date of 

this decision: 

2120 
1. Respondent shall offer Complainant, in writing, 

reinstatement in its employment upon Complainant's providing 

written medical evidence of his physical ability to work as 

a miner in Respondent's employment, in such position as 

Complainant would have been employed, with the pay rate and all 

seniority, shift.and overtime rights, employer contributions, 

and other fringe benefits that Complainant would have obtained 

had Respondent not discharged Complainant on October 23, 1981. 

Evidence of his physical ability to work may be satisfied by 

a written release to work in a coal mine by Thomas D. Rosenburg, 

M.D. 

2. Respondent shall pay Complainant back pay of $43,213.00 

for the period from October 23, 1981, through August 9, 1983 

(i.e., $44,613.00 less $1,400.00 for interim outside earnings) 

and-an additional amount of back pay based upon the maximum 

amount of wages and overtime he would have received in Respondent's 

employment from August 9, 1983, until either (a) his reinstatement 

under paragraph 1, above, or (b) 15 days from the date of this 

decision if Complainant does not accept reinstatement or does 

not medically qualify for reinstatement. 

The back pay in the period since August 9, 1983, is subject 

to reduction by any interim earnings since August 9, 1983. If 

back pay since August 9, 1983, cannot be stipulated by counsel 

for the parties, counsel shall submit their respective proposed 

amounts to the judge not later than 20 days from the date of 

this decision and for that purpose jurisdiction is retained by 

the judge for 20 days from this date and until a ruling on any 

counter-proposals filed in such period. Interest on the total 

award of back pay shall be at 12%, calculated on a calendar 

quarter accrual basis. 

3. Respondent shall pay Complainant's attorney a fee of 

$14,625.0d, !·~·' 195 hours X $75 per hour. 

4. Respondent shall pay Complainant litigation expenses 

of $350.00. 

·5. Respondent shall post a copy of the decision of 

May 26, 1983 and a copy of this decision and order at the 

subject mine, at a place where notices to its miners are normally 

posted, and keep them so posted, unobstructed and protected 

from the weather, for a consecutive period of 60 days. 

Distribution: 

tJ_;et.~ ~~v~ 

2121 

William Fauver 

Administrative Law Judge 
David o. Black, Esq., Biele, Haslam and Hatch, 50 West Broadway, 

Salt Lake City, Utah 84101 (Certified Mail) 

Barry D. Lindgren, Esq., P.O. Box 539, Denver, Colorado 80201 

(Certified Mail) 

kg 

2122 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BILLY K. DEEL, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC 161983 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. VA 82-62-D 

MSHA Case No. NORT CD-82-17 

D. O. & W. COAL COMPANY, 

Respondent No. 5 Mine 

DECISION 

Appearances: Michael A. Genz, Esq., and Barbara A. Samuels, 

Esq., Client Centered Legal Services of Southwest Virginia, Inc., Castlewood, Virginia, for 

Complainant; 

Louis Dene, Esq., Abingdon, Virginia, for 

Respondent. 

Before: Judge Steffey 

A hearing was held in the above-entitled proceeding on 

February 15, 16, 17, and 18, and April 26, 1983, in Abingdon, 

Virginia, pursuant to section 105(c) (3), 30 u.s.c. § 815(c) (3), 

of the Federal Mine Safety and Health Act of 1977. The complaint was filed on September 23, 1982, and supplemented on 

October 12, 1982, and October 27, 1982. The complaint was filed 

under section 105(c) (3) of the Act after complainant had received a letter from the Mine Safety and Health Administration 

advising him that MSHA's investigation of his complaint had resulted in a finding that no violation of section 105(c) (1) of 

the Act had occurred. 

Counsel for complainant and respondent filed simultaneous 

initial posthearing briefs on July 15, 1983, and July 18, 1983, 

respectively. Counsel for respondent and complainant filed on 

August 31, 1983, and September 2, 1983, respectively, letters 

stating that they were waiving the filing of reply briefs. 

Issues 

Complainant's brief contends that complainant was engaged 

in activities protected from acts of discrimination by section 

105(c) (1) of the Act, that his discharge by respondent was motivated by that protected activity, and that respondent would not 

have terminated complainant had it not been fbr his protected 

activity. · 

2123 
Respondent's brief renews its motion for dismissal of the 

complaint made at the hearing on the ground that complainant 

has failed to establish a prima facie case. 

Findings of Fact 

Based on my observations of the witnesses' demeanor and 

the preponderance of the credible evidence, the following findings of fact are made: 

1. D. o. & W. Coal Company (hereinafter referred to as 

"DOW") operates a one-unit mine in Southwest Virginia. Coal is 

produced from a single working section having seven entries. 

The mining process, prior to July 1982, consisted of shooting 

coal from the solid, that is, without using a cutting machine 

to undercut the coal seam prior to setting off explosives. The 

coal was transported from the working face to the belt conveyor 

by means of battery-powered scoops. DOW employs about 34 miners 

on two production shifts. In July 1982 the mining system was 

changed to use of a continuous-mining machine and shuttle cars 

equipped with trailing cables were substituted for the scoops 

which had previously been utilized to transport coal to the 

belt conveyor. 

2. A fire occurred in the mine in February 1982 and, as a 

result of the fire, the Mine Safety and Health Administration 

placed the mine on a 10-day spot inspection which was still in 

effect at the time the hearing was held in this proceeding in 

February and April of 1983. The inspector regularly assigned 

to examine the mine was William H. Strength who testified in 

this proceeding that he made spot inspections of both the belt 

lines and working faces on April 5, 6, 15 through 22, and May 5, 

and 6, 1982. He also conducted a complete regular inspection on 

May 24 through June 3, 1982. 

3. Complainant Billy K. Deel was first employed by DOW on 

or about January 17, 1980. The mine encountered some uneconomic 

producing conditions which resulted in DOW's laying off of all 

miners on the 3-to-11 p.m. shift about July 17, 1981, including 

Deel. At the time of Deel's lay-off, he held the position of a 

mine committeeman. Prior to the second shift's lay-off, Deel 

brought to DOW's attention the fact that the miners were upset 

because DOW had changed the date of issuance of their pay checks 

from Thursday to Friday. DOW claimed that the change in date 

for issuance of checks had resulted from a time lag in a computer used by a bank in Pikeville, Kentucky, and DOW refused to 

reverse its decision to issue the checks on Friday. When the 

miners heard that DOW had refused to revert to a Thursday pay 

day, they declined to go into the mine to work, claiming illness, 

although they had been well enough to report~to work and well 

enough to await the outcome of their ·complaint about the change 

in date of delivery of their pay checks. 

2124 
4. DOW was mining about 1 mile from the surface when it 

encountered the uneconomic conditions which caused it to lay 

off all miners on the second shift. DOW subsequently withdrew 

its equipment from the mile-deep location and moved the working 

section close to the surf ace by commencement of production in a 

new area off to the left of the mine's main entries. When Deel 

heard that DOW was recalling miners, he made some telephone 

calls and visited the mine. He was so anxious to obtain work 

to support his wife and child, that he volunteered to sign a 

statement to the effect that he would not cause DOW's management further trouble if they would rehire him (Exh. A). DOW's 

mine foreman did riot believe that Deel had waived any of his 

rights under the Act or the UMWA wage agreement by having signed 

the statement. 

5. Deel was recalled to work on the day shift on or about 

March 5, 1982, and was told that he would be paid top contractual wage rates, but that there was no specific job available 

and he would be required to operate the scoop, the roof-bolting 

machine, or to shovel coal along the belt line, although at the 

time of his lay-off on July 17, 1981, he claims to have successfully filed a bid for the job of an operator of a roofbol ting machine. 

6. On April 3, 1982, about a month after being recalled 

to work, Deel was elected by the union to the position of safety 

committeeman to replace Chann Fields, a shotfirer, who had previously held that position for about 4 years. DOW was notified 

of Deel's election as safety committeeman on April 5, 1982, and 

Deel continued to hold that position for 32 days, or until he 

was discharged on May 7, 1982. 

7. The drilling of coal in DOW's mine was performed by 

use of a hand-held drill which received its hydraulic power from 

the roof-bolting machine or a scoop. When the section foreman 

had a full crew of miners, he would assign two men to operate 

the roof-bolting machine. One of them would install roof bolts 

and the other one would drill holes in the face so that the shot 

firer could prepare the heading for another explosive charge. 

DOW used two roof-bolting machines. Deel and Randy O'Quinn 

normally operated one roof-bolting machine and associated drill 

and Kyle Turner and Lee Grizzle normally operated the other 

roof-bolting machine and drill. Randy O'Quinn hurt his shoulder 

in February 1982 and was not able to work at the time Deel was 

recalled to work on March 5, 1982. At times, the section foreman was unable to assign another miner to work with Deel on the 

roof-bolting machine. Deel's section foreman, Tivis Stiltner, 

on at least one occasion was unable to obtain a miner to assist 

Deel in running the roof-bolting machine and asked Deel to operate the machine by himself with the result~that Deel was required to install both roof bolts and drill holes for explosives. 

2125 
8. The miners normally left the surface to go underground 

at 7 a.m. and it took about 25 minutes to get to the working 

section. When Stiltner examined the face area about 8:30 a.m. 

on the day when he had ordered Deel to roof bolt and drill, he 

found that Deel had drilled holes in only one place and had not 

installed any roof bolts. Stiltner believed that Deel should 

have been able to accomplish more than the drilling of one 

place by 8:30 a.m. and asked Deel why he was not working. Deel 

replied that Stiltner could make Deel perform two jobs, but 

couldn't make him "run at it". Stiltner claims that Deel refused to perform both jobs and that he told Deel he was suspending him with intent to discharge for refusing to operate the 

roof bolter and drill. Deel, however, asked to talk to the mine 

committeeman, Kyle Turner, and Turner was able to persuade 

Stiltner to put Deel back to work after Deel had agreed to perform both jobs. After Deel had returned to work, Stiltner again 

went to the place where Deel was supposed to be working and he 

still had not installed any roof bolts. Therefore, Stiltner 

told Deel that he would help him on the roof-bolting machine for 

the rest of the day. Stiltner then proceeded to install roof 

bolts for the remainder of the shift and Deel operated the coal 

drill. 

9. On.May 5, 1982, one of the spot inspections referred 

to in Finding No. 2, supra, was conducted by Inspector Strength 

who issued three withdrawal orders at that time citing DOW for 

failure to install temporary supports as required by its roofcontrol plan, for firing 24 charges from a detonating device 

which was rated for firing no more than 20 charges, and for 

failing to have the line curtains installed to within 10 feet 

of the working faces (Exh. 1). The miners spent the remainder 

of the day performing the work necessary to abate the violations, 

but they had not completed the abatement work by the end of the 

shift and Stiltner asked Deel and Randy O'Quinn to come in 1 

hour early on May 6 to finish abating the violations. Strength 

returned to the mine on May 6 and terminated the orders so that 

DOW could resume mining operations. 

10. On May 7, 1982, the day after the withdrawal orders 

had been terminated, Floyd O'Quinn, the regular scoop operator, 

was absent. Stiltner asked Deel to get·the large scoop that 

Deel had been operating from time to time and hook it to the 

mantrip so that Deel could transport the men into the mine. 

Stiltner also told Deel that he himself was going to drive the 

little scoop into the mine because he had an internal bleeding 

illness and that operating the little scoop aggravated his condition less than operating the large scoop. Deel objected because he also preferred to operate the little scoop, but Stiltner insisted that Deel get the large scoop and take the mantrip 

in. Deel hooked the mantrip to the large sc~op, but went over 

to Stiltner who was cleaning water out of the little scoop and 

2126 
reminded Stiltner to make sure he had the safety chain hooked 

on the scoop's dipper since Stiltner had indicated that Chann 

Fields was going to ride into the mine with Stiltner in the 

little scoop. 

11. It is customary for all of the miners to gather near 

the door of the parts trailer and mine office before going into 

the mine. While they were gathered in the vicinity of the parts 

trailer on May 7 (Exh. M), Randy O'Quinn and Kyle Turner heard 

Stiltner assign Deel the job of pulling the mantrip with the 

scoop, but they did not hear any of the argument between Stiltner and Deel as to which one would be operating the little 

scoop as opposed to the large scoop. The mine foreman, Joe 

Taylor, also heard Stiltner assign Deel the job of pulling the 

mantrip. 

12. When Stiltner reached the working section, he parked 

the little scoop near the tailpiece where he had some work to 

do on the controls to the conveyor belt. Deel dropped miners 

from the mantrip at their various working places and drove the 

large scoop to the vicinity of the roof-bolting machine which 

he, Randy O'Quinn, and Clayton Justice had been taking turns in 

operating. Justice had been hired as a prospective foreman on 

the assumption that DOW's plan to open a new section would 

materialize. In the meantime, because of absenteeism by union 

workers, Justice had been performing jobs which are normally 

done by union employees. Specifically, Justice had been drilling holes from the hydraulic power provided by the roof-bolting 

machine to which Deel and Randy O'Quinn were normally assigned. 

Justice had sharpened about 16 bits near the parts trailer just 

before they came into the mine on the morning of May 7 and the 

noise of the grinder prevented Justice from hearing Stiltner 

assign any work to anyone. Nevertheless, both Randy O'Quinn 

and Justice were already preparing the roof-bolting machine and 

drill for operation before Deel parked the large scoop near the 

roof-bolting machine. 

13. When Deel came to the roof-bolting machine, Justice 

immediately realized that three men were more than could be 

justified to operate one roof-bolting machine. Therefore, 

Justice asked Deel what job he was planning to do that day and 

Deel said he was planning to run the roof-bolting machine. 

Justice replied that he guessed that meant he would have to 

operate the large scoop which Deel had driven into the mine and 

Deel agreed that Justice had made a correct conclusion. Justice,' 

who had not operated a scoop in DOW's mine for transporting coal 

to the belt conveyor, was not comfortable with the unorthodox 

manner in which he had become assigned to be the scoop operator. 

Consequently, Justice got on the large scoop and drove it about 

120 feet to the place where Stiltner was working on the tailpiece. When Justice advised Stiltner that Deel had decided to 
run the roof-bolting machine, Stiltner told Justice to go back 

to the roof bolter and tell Deel that he wanted Deel to operate 

the scoop and for Justice to work on the roof bolter with Randy 

O'Quinn. When Justice conveyed Stiltner's message to Deel, 

Deel refused to follow Stiltner's instructions and told Justice 

to go back and tell Stiltner to come and tell Deel in person if 

operating the scoop was what Stiltner wanted him to do that day. 

Justice again returned on the scoop to Stiltner's location at 

the ta~lpiece and stated that Deel had refused to run the scoop 

and wanted Stiltner to come up there and tell Deel in person if 

Stiltner wanted Deel to operate the scoop. Stiltner then told 

Justice to park the large scoop and return to the roof-bolting 

machine and wait until he could finish the repairs on the belt 

conveyor and come up to talk to Deel. Justice dutifully parked 

the large scoop and returned to the site of the roof-bolting 

machine. This time Justice just sat down and waited for Stiltner to show up after he had advised Deel that Stiltner would be 

there in a little while. 

14. After Stiltner had repaired the tailpiece, he got on 

the little scoop and drove it to the roof-bolting machine where 

Deel, Justice, and Randy O'Quinn were gathered. Stiltner asked 

Deel what was wrong and Deel replied that nothing was wrong. 

Stiltner then asked Deel why he was not operating the scoop and 

Deel wanted to know why he should run the scoop and let someone 

else run "his" roof-bolting machine. Stiltner explained that 

they had not been producing very much coal lately and that 

Stiltner believed that Deel could do a better job on the scoop 

than Justice and that he, therefore, preferred that Deel run 

the scoop for the day. When Deel made no immediate reply, Stiltner then said that if Deel was not going to run the scoop, he 

should get in the dipper of the scoop Stiltner was operating 

and Stiltner would take him outside the mine. Deel got his 

lunch bucket and got into the scoop's dipper. 

15. After Stiltner had finished talking to Deel, he looked 

at Randy O'Quinn who was doing nothing and asked him why he was 

not working. Randy replied that the auger barrel was bent and 

he needed a new one before he could begin drilling coal. Stiltner told Randy to go get a new auger barrel. Randy, who is 6 

feet 2 inches tall and was working in a mine which ranges from 

4-1/2 to 5 feet in height, did not want to walk a few breaks to 

get a·n auger barrel which Chann Fields had already gone on a 

tractor to get. Therefore, Randy said that he was sick and believed he would just go home, so Randy got into the dipper with 

Deel and Stiltner started to the surface with both men in the 

scoop's dipper. 

16. -After Stiltner had started to the surface, Deel asked 

Stiltner to stop the scoop so that Deel could talk to the mine 

committeeman, Kyle Turner, who was operating the other roofbolting machine. Stiltner reluctantly stopped the scoop and 

2128 
Deel got out of the dipper and went to talk to Turner. After 

Turner had obtained Deel's version of the incident, he asked 

Stiltner to allow Deel to go back to work. Stiltner remained 

adamant and Turner was unable to persuade Stiltner to put Deel 

back to work. In the meantime, Chann Fields had returned with 

the new auger barrel and Randy O'Quinn decided to go back to 

work and got out of the scoop's dipper and returned to the roofbolting machine. Chann Fields, who had heard Turner's intercession on Deel's behalf and who believed the conversation was 

at an impasse, spoke up and asked Stiltner to bring him a new 

shot-firing battery from outside the mine. Fields also suggested that Stiltner go ahead and take Deel out of the mine as 

there was no use in engaging in further arguments. Stiltner 

told Turner that he could go outside with Deel and they could 

discuss the matter with the mine foreman, Joe Taylor. 

17. When Deel, Turner, and Stiltner reached the surface, 

Stiltner went to the mine office while Deel and Turner went to 

the house where they kept their miner's cap lights. Stiltner 

told Taylor that he was suspending Deel for ref using to run the 

scoop. Taylor asked Stiltner to have Deel and Turner come to 

the office to discuss the matter, but they entered the mine 

office about the time Stiltner was going after them. Taylor expressed surprise that Deel had refused to operate the scoop 

that day, especially since Taylor had already heard about Deel's 

near discharge by Stiltner for refusing to operate the roof 

bolter and the drill by himself, as described in Finding No. 8, 

supra. Deel told Taylor that he had not refused to run the scoop, 

but Taylor felt that he had to support his section foreman and 

advised Deel that he was suspended with intent to discharge pending the holding of a 24/48-hour meeting at which they could 

further discuss the matter. 

18. The above-described suspension occurred on Friday, 

May 7, 1982, and Deel and Turner came to a 24/48-hour meeting 

on Monday, May 10, 1982, at which time the suspension was converted to a discharge. Deel filed a grievance under the National 

Bituminous Coal Wage Agreement of 1981 and the matter went to 

arbitration which resulted in a decision by an arbitrator sustaining the discharge. The decision was issued on June 8, 1982, 

in Arbitration Case No. 81-28-82-96 in a proceeding entitled 

The United Mine Workers of America, Local Union #7170 v. D. O. 

& W. Coal Company by Arbitrator Peter Judah. 

19. On July 14, 1982, Deel was denied unemployment compensation on the ground that he had been discharged for misconduct. Deel appealed that unfavorable ruling to the Virginia 

Employment Commission and the Appeals Examiner held a hearing 

and issued a decision on October 22, 1982, upholding the refusal 

to award Deel unemployment compensation. The examiner's decision was, in turn, appealed to the Commission which issued a 

2129 
decision on January 14, 1983, reversing the examiner's decision 

and holding that Deel was entitled to receive unemployment compensation. The Commission's decision recognized that its examiner and an arbitrator had already issued decisions adverse to 

Deel, but held that DOW had failed to sustain its burden of 

proof in showing that Deel had refused to carry out reasonable 

instructions given by his employer. The Commission emphasized 

that the hearing before its examiner had not been as extensive 

as the hearing before the arbitrator and the Commission stressed 

the fact that Clayton Justice, the person who had relayed Stiltner' s instructions to Deel about operating the scoop, had not 

testified at the hearing before the Commission's examiner (Virginia Employment Commission's Decision in Billy K. Deel v. 

D. O. & W. Coal Co., Decision No. 19888-C, January 14, 1983, 

pages 3 and 4). 

Consideration of the Parties' Arguments 

Contentions in Deel's Brief 

The first six pages of Deel's brief are devoted to a statement of facts which shows that everything alleged by Deel in 

this proceeding has been convincingly contradicted by DOW's witnesses, or is the subject of several different versions by Deel 

during cross-examination. My findings of fact above are based 

on credibility determinations which will hereinafter be explained. 

The first six pages of Deel's brief are rejected as being nothing 

more than a summary of disputed facts. 

Deel's Protected Activity 

Pages 6 through 42 of Deel's brief are properly placed under the heading, "Contentions of Law" because Deel can only argue the law in this proceeding since none of the credible evidence supports his factual allegations. 

Deel's brief (p. 6) properly begins with a reference to the 

Commission's decision in Pasula v. Consolidation Coal Co., 2 

FMSHRC 2786, 2799 (1980), rev'd on other grounds sub nom. Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3d Cir. 1981), 1/ 

in which the Commission stated that a complainant in a discrimi--

nation case, in order to make a prima facie case, must show that 

he engaged in protected activity and that the protected activity 

1/ Some of the Commission's language about the parties' burden 

of proof in discrimination cases was rejected in Wayne Boich 

d/b/a W. B. Coal Co. v. F.M.S.H.R.C., 704 F.2d 275 (6th Cir. 1983), 

but on October 14, 1983, in Case No. 81-3186, the Sixth Circuit 

vacated its decision reported at 704 F.2d 275, except as to backpay issues, and held that the Commis~ion's Pasula decision properly specifies the parties' burden-of-proof requirements in discrimination cases. 

2130 
was a motiv~ting factor in his termination. Inasmuch as Deel 

was elected by the union as a safety committeeman on April 3, 

1982, he necessarily, in that capacity, had to bring safety 

complaints to management's attention. Therefore, Deel successfully proved the first part of the requirement for establishing 

a prima f acie case when he correctly alleged that he acted as 

safety committeeman for about a month before his discharge. 

Deel, however, completely failed to show that his discharge was 

in any way motivated by the fact that Deel was a safety committeeman who had brought safety complaints to DOW's attention. 

Contentions in DOW's Brief 

DOW's brief correctly argues throughout 87 pages that the 

facts do not support Deel's allegation that his discharge was 

motivated by the fact that he had engaged in the protected activity of acting as safety committeeman. DOW's brief (p. 6) quotes 

a portion of section 105(c) (1) of the Act, but fails to quote 

the last part of section 105(c) (1) on which Deel relies, viz., 

the portion which provides that a miner may not be discriminated 

against for having exercised "* * * on behalf of himself or 

others of any statutory right afforded by this Act." Since Deel 

accompanied MSHA's inspector when he was making inspections of 

DOW's mine, Deel is alleging that he was exercising his rights 

under section 103(f) of the Act when he accompanied an MSHA inspector. It is true that Deel accompanied an inspector, but 

the evidence does not show that Deel's discharge was motivated 

in any way by the fact that he was for a very short time the 

miners' representative to accompany inspectors at DOW's mine. 

DOW's brief (p. 6) renews its motion to dismiss which was 

denied at the hearing (Tr. 364) . DOW correctly argues that the 

preponderance of the evidence in this proceeding fails to show 

that Deel was discharged for having engaged in any activities 

which are.protected under the Act. Therefore, DOW's motion to 

dismiss will hereinafter be granted. 

DOW's brief (pp. 6-85) considers Deel's alleged grounds 

for arguing that his discharge involved a violation of section 

105(c) (1) of the Act and shows that all of them are unfounded. 

It is quite obvious that if I were to paraphrase all of DOW's 

factual arguments from pages 6 through 85 of its brief and then 

were to explain why I agree with most of them, and that if I 

were to paraphrase in detail all of Deel's legal arguments from 

pages 6 through 42 of his brief and then explain why I disagree 

with all of them, my decision would be about 200 pages long. 

In order to reduce the length of this decision to a reasonable length, I shall hereinafter consider all of the parties' 

arguments without giving specific page references and detailed 

summaries of the parties' arguments before a given subject is 

2131 
discussed. My discussion of the evidence and the parties' arguments, however, will be made under numerous headings which will 

clearly show that I have considered all of the contentions of 

both parties. Additionally, my decision gives immediately below a Table of Contents to show exactly where my discussion of 

the factual and legal arguments may be found so that the parties, or the Commission, if it should grant a petition for discretionary review, may easily find the page or pages on which 

the various subj~cts are considered. 

TABLE OF CONTENTS 

No Dates and Length of Deel's Tenure as Safety 

Cornrni tteeman . . • . . . . . • . . • . • . . . . . . • . . . . . . . . • . • . . . . • . • 10 

Hauling Explosives on Tractor .•.......••......•...•.• 11 

Belt-Bridging Incident . . • • . • • . . . . . • . . . . • . . • • . . • . . • • . . 13 

Cleaning of Mainline Conveyor Belt .•.•.•...•......... 15 

Pay for Accompanying Inspector ....•............•....• 16 

Inspection of Face Areas on May 5, 1982 .......•..•... 18 

The Firing of Two Shots at Once .•.•.••...••.•.....•.. 20 

Stiltner's Alleged Threat .....•.•...•.......•..•••... 25 

Failure To Install Curtains and Failure To 

Apply Rock Dust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6 

Deel's Allegations of Disparate Treatment .......•..•• 30 

The Aborted Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 

The Actual Discharge ••...•......•.........•..•.....•. 35 

References to "his" Roof-Bolting Machine ..•....••.... 43 

Supervisor Doing Classified Work ••.....•.•••.•....... 44 

Requirement To Perform Order and Then File 

Grievance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 

Deel's Refusal To Ask Stiltner About His 

Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 

Final Consideration of Arguments in Deel's Brief ••••. 46 

No Dates and Length of Deel's Tenure as Safety Committeeman 

Deel took pride in not being able to give the date on which 

any event occurred (Tr. 86; 115; 122; 168; 189). He did not 

know for certain when he was laid off during a reduction in 

force in 1981 (Tr. 7). He did not know the date on which he was 

recalled to work in 1982 (Tr. 7). He did not know when he was 

elected as safety committeeman (Tr. 52). He objected during 

cross-examination when DOW's counsel repeatedly tried to establish when certain alleged discriminatory acts were supposed to 

have occurred (Tr. 168). It was necessary for DOW's counsel to 

make a concerted effort to establish that Deel was elected safety 

committeeman on April 3, 1982 (Tr. 391) and that is one of the 

few dates which was ever established for certain in this proceeding. 

2132 
Deel's brief (p. 1) purports to state with certainty that 

Deel was laid off on July 16, 1981, and was recalled to work on 

March 4, 1982, but the transcript references (Tr. 123 and 50, 

respectively) given in support of those alleged dates show that 

the dates were included in lawyers' questions and in the first 

instance Deel's own counsel used the dates of both July 15 and 

July 16 in asking the question, so there is no reason whatsoever 

to select July 16 over July 15. In the other transcript reference (Tr. 50), DOW's counsel used the date of March 4, 1982, in 

asking the question, but Deel's direct testimony (Tr. 7) shows 

that he was uncertain as to the date of March 4, 1982. Joe 

Taylor, the mine foreman, did not know for certain when Deel was 

laid off and guessed that he was recalled about March 3, 1982 

(Tr. 389). DOW's brief (pp. 2-3) states that Deel was laid off 

on July 17, 1981, and was recalled on March 5, 1982, but DOW's 

brief does not provide any transcript references for either date. 

Therefore, I have used the word "about" in Finding Nos. 3 and 5, 

supra, in connection with Deel's dates of employment because the 

record does not support a finding as to any precise dates for 

Deel's dates of lay off and reemployment. 

During his direct testimony (Tr. 8), Deel stated that he 

was made safety committeeman a "few days" after he was recalled, 

but he was called back to work no later than March 5, 1982, and 

did not begin acting as safety committeeman until April 5, 1982, 

which was only 32 calendar days before his discharge on May 7, 

1982. After he became safety committeeman, he did not work for 

from 7 to 13 calendar days because of some bruised ribs (Tr. 189; 

873). Consequently, Deel actually acted as safety committeeman 

for only 25 or 19 calendar days. 

Hauling Explosives on Tractor 

Fields, the shot fireman, was hauling explosives on top of 

a battery-powered tractor at the time Deel was called back to 

work about March 5, 1982. Deel contends that an accident in a 

coal mine in Kentucky occurred because explosives were being 

handled in a similar fashion. The .accident in the Kentucky coal 

mine caused DOW's employees to ask that Fields be required to 

stop hauling explosives on the tractor. Deel claims that he 

brought the hazardous powder-hauling practice to DOW's attention 

and that the mine foreman, Taylor, told him that DOW had always 

done it that way (Tr. 10). Deel contends that he gave Taylor 2 

weeks within which to get the powder off the tractor and that, 

when that was not done, he complained again. After Deel's 

second complaint, he alleges that Taylor ordered Randy O'Quinn 

and Kyle Turner to carry or drag the powder into the face area 

by use of permissible powder bags. The powder was carried in 

bags for only 1 day and then Fields resumed the practice of hauling explosives on the tractor (Tr. 11). Fielgs claims that he 

did not revert to hauling explosives on the tractor until the 

2133 
miners had discussed the matter and had agreed that he could 

haul the powder on the tractor, provided he would cut a piece 

of conveyor belt and place the belt on top of the tractor so 

as to provide insulation between the metal frame of the tractor 

and the powder, and provided Fields would not haul more than 

four cases of powder at any one time (Tr. 713-714; 737). 

Fields also claims that the Kentucky mine explosion occurred in· December 1981 or January 1982 and that the miners 

complained to him about hauling explosives on the tractor while 

he was safety committeeman and that the mine foreman had a permissible explosives car constructed so that the powder could be 

hauled with explosives and detonators placed in separate compartments as required by the mandatory safety standards (Tr. 

731; 739; 741). Clayton Justice was hired as a trainee section 

foreman on April 19, 1982, and he stated that the explosives 

were still being hauled on the tractor for about a week after 

he was hired (Tr. 705; 770; 1027-1028). Fields also testified 

that he had asked an MSHA inspector whether there was any way 

a permissible box for carrying explosiv~s could be installed on 

the tractor and that, while the inspector doubted that such a 

box could be constructed in compliance with the safety standards, 

he would make a special inquiry about the matter. After Fields 

subsequently learned from the inspector that it would not be 

possible to obtain permission to continue hauling the explosives 

on the tractor (Tr. 715-716), Taylor had an old pump cart removed from the mine and the wheels and frame from the pump were 

used to accommodate the construction of a permissible powder car 

(Tr. 675-676; 762). 

Taylor testified that neither Deel nor Randy O'Quinn 

brought the matter of hauling explosives on the tractor to his 

attention and that the·powder car was constructed and placed 

in the mine solely on the basis of Fields' having reported the 

matter to him before Deel ever became safety committeeman (Tr. 

407-411; 670-671). Since Deel did not challenge Fields' statement that the Kentucky mine explosion occurred in December 1981 

or January 1982, there is no obvious reason why the miners 

would wait until Deel became safety committeeman in April 1982 

to bring up a hazardous practice which had been brought to the 

miners' attention in December 1981 or January 1982 before Deel 

was recalled about March 5, 1982. 

Randy O'Quinn claimed that Deel brought the matter of hauling powder on the tractor to Stiltner's attention and claimed 

that Stiltner agreed to bring the matter to Taylor's attention 

and that management had a box made for hauling the powder. 

O'Quinn said the box was apparently satisfactory because Inspector Strength did not say anything adverse about their use 

of the box (Tr. 215-216). O'Quinn also admitted that the matter 

of hauling explosives on the tractor-was brought up while Fields 

was safety committeeman (Tr. 921). 

2134 
Deel and Randy O'Quinn claim that when O'Quinn and Kyle 

Turner were asked to drag the explosives into the mine in permissible bags, they were ordered to do so because Taylor wanted 

to retaliate against them for having been among the persons who 

wanted Fields to stop hauling the powder on the tractor (Tr. 11; 

40; 955). Deel claims that Taylor should have ordered Fields 

himself to drag the explosives in bags because it was a part of 

his job as shot fireman to bring in the powder (Tr. 11; 40; 54-

55). On the other hand, DOW claims that Randy O'Quinn and Kyle 

Turner were asked to drag the powder because there are two roofbol ting crews in the mine and that there are two people on each 

crew, whereas Fields, the shot firer, works by himself and is 

responsible for shooting from 16 to 20 places per shift (Tr. 

760; 830). Deel himself stated that the roof-bolting crews remained caught up all the time and were ready to start bolting 

in each place as soon as the scoops had finished cleaning up a 

cut of coal (Tr. 33-34). 

Deel's claim that Taylor objected to changing the method 

of hauling the explosives on the tractor on the ground that they 

had always done it that way was refuted by Fields and Randy 

O'Quinn. Fields said he began hauling powder on the tractor 

after their permissible powder car was demolished when it was 

run over by a scoop (Tr. 731). Randy O'Quinn testified that he 

and Deel had worked on the second shift in 1981 before the reduction in force occurred and that, during that time, Deel and 

he worked on the same roof-bolting machine and did their own shot 

firing and that they hauled the explosives at that time on top of 

the roof-bolting machine (Tr. 963-964). Hauling explosives on a 

roof-bolting machine would cause the explosives to be very close 

to the face prior to the installation of permanent roof supports, 

whereas Fields' tractor did not need to be close to the working 

face until after permanent supports had been installed. 

In view of the circumstances described above, I find that 

DOW's claim that the hauling of powder was brought to the mine 

foreman's attention by Fields is more credible than Deel's claim 

that he was the person who first brought up the matter of hauling powder on the tractor. Moreover, I find that the roofbolting crews were chosen for sound reasons as the persons who 

should drag the powder in permissible bags because they remained 

caught up with their work and would have had more time to drag 

powder· than Fields would have had because he had to prepare all 

the explosives in each heading, whereas the roof-bolting crews 

were able to divide the work of installing bolts among four 

persons. 

Belt-Bridging Incident 

Deel alleges that one day the roof-bolting machine became 

inoperative and that Stiltner, the section foreman, ordered him 

2135 
and Randy O'Quinn to go down to the belt and shovel up any loose 

coal which might have accumulated along the belt (Tr. 13). It 

was necessary for them to get on the opposite side of the belt 

from the side on which they were traveling, but when they asked 

the person assigned to work at the belt head to cut off the 

power, he told the~ the switch had been bypassed or bridged out 

and that he could not turn the belt off at the belt head (Tr. 14). 

Deel contends that he returned to the section foreman and told him 

they couldn't work along the belt because it had been bridged out 

(Tr. 15). The matter was then reported to the mine foreman who 

came underground and tried to replace the fuse, but was unable to 

do so. Deel claims that he was advised that the belt had been 

repaired, but when he and Randy returned to the belt head, they 

found that the switch was still bridged out. Deel claims that he 

reported back to Stiltner that the switch was still bridged out 

and that Stiltner told him to call Taylor again (Tr. 16). During 

Deel's second conversation with Taylor, the safety of the miners 

was raised and Taylor told Deel to have the miners come out of 

the mine if they were afraid to work in the mine while the switch 

was bridged out. Stiltner talked to Taylor and ordered all the 

miners to leave (Tr. 16). Deel contends that they were told when 

they left that they would not be paid for the remainder of the 

shift, but Taylor contends that the belt-bridging incident occurred on April 16, 1982, and DOW presented as Exhibit I an attendance sheet showing that the miners were all paid for 8 hours 

of work on that day (Tr. 57; 412-415). 

Deel also claims that when he and Randy O'Quinn came out of 

the mine on the day of the bridge-out that Taylor told him DOW 

had a right to run the belt with the switch bridged out provided 

someone was stationed at the power center to turn off the power 

in case of an emergency (Tr. 16). Deel claimed that no one was 

stationed at the power center, as alleged by Taylor, but Deel 

gave conflicting statements about how far the power center was 

from the belt head (Tr. 14; 60) and it is doubtful that either 

Deel or O'Quinn really looked to see if anyone had been stationed 

at the power center (Tr. 931). 

Another claim by Deel in connection with the belt-bridging 

incident is that he personally called Inspector Strength and reported the bridge-out to him and that the inspector came to the 

mine on the next working day in response to the complaint (Tr. 

17). When Inspector Strength testified, however, he stated that 

he had come to the mine in response to a complaint forwarded to 

him by his supervisor, but he said that Deel had not called him 

personally to complain about the bridge-out (Tr. 1056). The 

control switch for the belt head had been repaired by the time 

Inspector Strength came in response to Deel's alleged complaint 

and since both Deel and Taylor advised the inspector of that 

fact, the inspector was not even asked to go .,underground to check 

the switch (Tr. 382-383; 415). 

2136 
Deel, as usual, did not know when the belt-bridging incident 

occurred, but Deel's attorneys tried to prove that it occurred 

on April 5, 1982, because Kyle Turner had a calendar on which 

Turner had written that he had been paid for only 7 hours on 

April 5, 1982, and he claimed that the reason he was not paid 

was that April 5 was the day they were withdrawn when the belt 

head was bridged out (Tr. 308; 1005-1006). Turner's calendar, 

however, contained no actual notation that the belt-bridging had 

anything to do with his being paid only 7 hours on April 5, 1982. 

Moreover, Inspector Strength testified that he performed spot inspections at the mine on April 5 and April 6, 1982, and on each 

day he checked both the belt lines and the faces (Tr. 1260). 

Therefore, it would not have been necessary for Deel to have 

called the inspector on April 5 to report a bridged-out belt because Strength would have been present at the time the bridging 

out occurred. The inspector also testified that he was at the 

mine on April 15 through April 22 (Tr. 1060). Therefore, Deel 

should not have had to call the inspector about a bridged-out 

belt on April 16 either, except that the inspector was not certain that he was present at the mine on each day from April 15 

through April 22 (Tr. 1079). 

Regardless of whether the mine foreman was correct in contending that he had a right to bridge out the belt so long as he 

stationed someone at the control center, the fact remains that 

no one ordered either Deel or Randy O'Quinn to work along the 

belt after the bridged-out switch was called to DOW's attention. 

The miners were withdrawn and there is no convincing evidence 

to show that DOW failed to pay them for 8 hours of work. The 

belt-head switch was repaired before the miners reported for 

work on the next shift and DOW was cited for no violations by 

MSHA in connection with the belt-bridging incident. Therefore, 

the preponderance of the evidence fails to support a finding 

that DOW's management would have been motivated to discharge 

Deel because he reported to management that the belt-control 

switch had been bridged out. 

Cleaning of Mainline Conveyor Belt 

Deel claims that he had been telling Inspector Strength 

about trying to get DOW to clean up along the mainline belt 

conveyor, but DOW would not do so. Deel alleged that when Inspector Strength came to the mine the day after the belt-bridging 

incident, Strength asked him if the belt had been cleaned up yet 

and Deel replied that it had not. Deel claims that the inspector 

and he then went into the mine and found the belt in such bad 

condition that Strength issued a withdrawal order as soon as 

they came out of the mine after inspecting the belt (Tr. 1_7) . 

Strength testified that the walk-around miners at DOW's 

mine did not point out violations to him (Tr. ~1091). Additionally, 

2137 
Deel introduced as Exhibit 1 copies of the citations and orders 

which were issued while Deel was employed at the mine. Exhibit 

1 shows that the only violation of section 75.400 for failure 

of DOW to prevent accumulations of loose coal and coal dust alonq the main beltline was alleged in Citation No. 930855 issued 

on April 15, 1982. That citation gave DOW until April 19, 1982, 

to clean up the loose coal and coal dust. The inspector then 

extended the compliance time to April 21, 1982, and issued Order 

No. 922763 on April 21, 1982, when DOW failed to clean up along 

the belt by April 21, 1982. 

Deel, therefore, was shown to be mistaken about all the 

details alleged in connection with DOW's being cited for loosecoal accumulations. First, Deel had nothing to do with Strength's 

checking of the mainline belt conveyor as Strength had received 

no complaint from Deel requesting that a special examination of 

the beltline be conducted (Tr. 1093). Second, the inspector did 

not issue any order immediately after finding loose-coal accumulations along the beltline, as alleged by Deel. The order of 

withdrawal was written 6 days after the citation was issued and 

the order was issued for DOW's failure to clean up the loose 

coal within the time given by the inspector and not because 

Strength considered the violation to be unwarrantable or an imminent danger which would have required immediate action under 

either section 104(d} or 107(a) of the Act, respectively. 

When Deel, for a second time, discussed his role in the 

citing of DOW for loose-coal accumulations along the mainline 

belt conveyor, he claimed that he had specifically called 

Strength and asked him to make a special inspection of the mainline belt conveyor (Tr. 37). The inspector testified that no 

one had made a complaint to MSHA with respect to loose-coal 

accumulations along the main conveyor belt (Tr. 1056; 1081). 

If a complaint as to the main conveyor belt had been made, the 

inspector would have had to have advised DOW of that fact when 

he reported to the mine because section 103(g) (1) of the Act 

requires MSHA to report to the operator that an inspection is 

being conducted in response to a complaint. Since Strength 

only went to the mine in connection with a complaint about the 

bridging out of the belt-head switch, there is no reason to believe that Deel ever made a complaint to MSHA about loose-coal 

accumulations along the main conveyor belt. 

Pay for Accompanying Inspector 

Deel claimed that DOW discriminated against him because he 

was advised by Taylor, the mine foreman, that DOW would pay him 

when he accompanied the inspector in the face areas underground, 

but would not pay him for coming outside the mine to meet the 

inspector and take him underground and would~not pay him for 

going back outside after the underground inspection was over 

2138 
and for staying outside until the inspector had completed the 

writing of any citations which the inspector might believe were 

appropriate (Tr. 24; 78). As a matter of fact, the section 

foreman, Stiltner, had continued to give Deel full credit for 

any time he accompanied the inspector, regardless of whether it 

was for underground inspections or for being with the inspector 

on the surface of the mine (Tr. 419; 842). 

Deel, however, contends that he was given disparate treatment because DOW had always paid Fields, the other safety committeeman, when he accompanied the inspector. Therefore, Deel 

contends that just the threat by Taylor that DOW would not pay 

him for accompanying the inspector· on the surf ace showed disparate treatment of him as compared with Fields. The preponderance of the evidence fails to support Deel's allegations. 

Fields testified that he was safety committeeman for about 4 

years as compared with Deel's 24 days as an active safety committeeman (Tr. 716). Fields said that he did not go out to 

greet the inspector and bring him underground and that he did 

not accompany the inspector on his trip out of the mine after 

he had completed his inspection. Fields additionally testified 

that if he were behind in his work as shot fireman, he would 

just tell the inspector to let him know what he had found when 

he was leaving and that he did not even accompany the inspector 

underground on such occasions (Tr. 724-725). 

Inasmuch as Taylor advised Deel that DOW would pay him 

when he accompanied the inspector in the face areas, but not 

on the surface (Tr. 78), Taylor was treating Deel exactly as 

DOW had treated Fields in that Fields had been paid for accompanying the inspector only when the inspector was making an 

underground inspection at the faces and DOW was planning to pay 

Deel for the same portion of the time he spent accompanying the 

inspector. While Deel was entitled to be paid for the entire 

time he spent with the inspector, Taylor was unaware of that 

fact until Inspector Strength advised him that DOW was required 

to pay Deel for the entire time he spent accompanying the inspector. Since Taylor immediately paid Deel upon being advised 

that Deel had to be paid for all time spent with the inspector 

(Tr. 419), and since Stiltner had never deducted a single minute 

of time from Deel's attendance sheet for time spent accompanying 

the inspector (Tr. 842), there is nothing in the record to support a finding that DOW engaged in disparate treatment in advising Deel that he would be paid only for the time he spent 

accompanying the inspector in the face areas of the mine because 

that is exactly what DOW had done with respect to the previous 

miners' representative who had accompanied inspectors at DOW's 

mine. 

Neither DOW's brief nor Deel's brief ma~es any reference 

to the fact that Deel accompanied inspectors only when they were 

enaaged in making spot inspections because that is the only type 

of inspection which was made by Inspector Strength while Deel 

2139 
held the position of the miners' representative who was entitled 

to accompany inspectors under section 103(f) of the Act (Tr. 

1060). The Commission majority held in The Helen Mining Co., 1 

FMSHRC 1796 (1979), that operators have to pay miners for accompanying inspectors only when the inspectors are engaged in making one of the regular quarterly inspections required under section 103(a) of the Act. The Commission's decision was reversed 

by the District of Columbia Circuit in UMWA v. FMSHRC, 671 F.2d 

615, in a· decision issued February 23, 1982. Since Deel testified in this proceeding during the week ending February 19, 1983, 

he was technically incorrect in stating that he was required to 

be paid by DOW for accompanying an inspector who was engaged 

only in making spot inspections. 

A final day of hearing was held in this proceeding on 

April 26, 1983, but the Supreme Court did not deny petitions 

for certiorari with respect to the D. C. Circuit's reversal of 

the Commission's Helen Mining decision until October 10, 1983. 

The matter of paying miners for spot inspections is still being 

contested in current cases before the Commission. See, e.g., a 

notice issued by the Commission on Septeinber 2, 198~indicating 

that the Commission had declined to vote for the grant of a 

petition for discretionary review of my decision issued July 28, 

1983, in Consolidation Coal Co. v. Secretary of Labor, Docket 

No. PENN 82-221-R, in which I had held that Consolidation, under 

the D. c. Circuit's decision in the UMWA case, supra, had to pay 

a miner who accompanied an inspector who was engaged in making a 

spot inspection. 

Inspection of Face Areas on May 5, 1982 

It is a fact that Inspector Strength made a spot inspection 

of the face areas and the beltline in DOW's mine on May 5, 1982, 

and that inspection occurred just 2 days before Deel was discharged on May 7, 1982 (Tr. 1040; 1060). The inspector recalls 

no unusual delay before beginning his inspection (Tr. 1047). 

The inspector arrived at the mine about 8:30 a.m., called for 

the miners' representative (Deel) to meet him on the surface, 

spent about 30 minutes examining DOW's record books before going 

underground, took about 25 minutes in traveling to the working 

section, and began his inspection in the No. 1 entry about 10 

a.m. (Tr. 1069). On May 5 the inspector wrote three withdrawal 

orders (Nos. 922773, 922774, and 922775) under section 104(d) (2) 

of the Act citing DOW for violations of section 75.316, 75.200, 

and 75.1303, respectively (Exh. 1). Deel did not point out any 

violations to the inspector in his capacity as the miners' representative (Tr. 1091). 

Deel, however, claims that Strength was coming on May 5 to 

make an inspection only of the beltline and that DOW knew that 

he was coming that day to inspect only the beltline. Deel claims 

2140 
that he told Strength that the face area was in a terrible condition and that he was specifically requesting Strength to inspect the face area in addition to the beltline because Deel 

wanted to prove to Strength that conditions in the mine were as 

bad as he had been telling Strength they were (Tr. 24). 

Deel thereafter claims to have advised both the mine forernan, Taylor, and the section foreman, Stiltner, that Strength 

was going to make an ·inspection of the face areas and that they 

asked him to sta1·1 the inspector until they could improve conditions in the face area prior to the inspection (Tr. 25; 195). 

Deel claims that when he advised Strength that they wanted him 

to stall the insp~ction for a while, Strength stated, "If there's 

that much wrong in there, there ain't no way they're going to 

get it done; * * * let's give them their time'' {Tr. 195-196). 

For the foregoing reason, Deel said that "* * * we were about a 

half hour to an hour late going in" (Tr. 196) . 

As indicated above, the inspector stated that he inspected 

both the beltline and the face every time that he made a spot 

inspection and he specifically stated that it was not possible 

that he failed to check the face areas when he made any of the 

spot inspections (Tr. 1040; 1060). Additionally, section llO(e) 

of the Act provides for a fine of up to $1,000 and up to 6 months 

imprisonment as punishment for anyone "* * * who gives advance 

notice of any inspection". There is no likelihood, therefore, 

that the inspector would have stated, as Deel alleges, that 

"* * * we'll give them advance warning" (Tr. 195) of the fact 

that he was going to inspect the face areas. 

When Deel was being cross-examined about his claim that he 

persuaded the inspector to make an inspection of the face areas 

which he would not otherwise have made, Deel stated that he was 

so positive of the allegation, that he would lay his hand on the 

Bible and swear on his mother's grave that the inspector had 

come on May 5, 1982, only to check the beltline (Tr. 170). Deel 

at first stated that he knew the inspector was corning on May 5 

to make a follow-up examination to see if DOW had corrected some 

beltline violations previously cited and that he and everyone 

else knew the inspector was corning only to check the beltline 

(Tr. 128). The citations and orders in Exhibit 1, however, show 

that the inspector had written no citations requiring that violations be abated by May 5, 1982. Deel later realized that he 

could not specify an exact abatement date given by the inspector 

and changed his testimony to say that the inspector had given 

DOW an oral warning to get the belt cleaned up by a certain date 

and had advised DOW's management that he would issue a citation 

or order if DOW had failed to clean up the belts by that time 

(Tr. 16 6) • 

2141 
Another reason for doubting Deel's claim that Strength 

would not have inspected the face areas on May 5 if Deel had 

not made a special request that such inspection be made, is 

that the violations which Strength found on May 5 included DOW's 

failure to set any temporary supports in the Nos. 1 and 2 headings and failure to set one temporary support in the No. 3 heading. The inspector also cited violations for DOW's failure to 

hang reflectors or warning devices outside the Nos. 1, 2, and 3 

headings (Order No. 922774, Exh. 1). No section foreman with 

as much exper1ence as Stiltner had would ask for an inspection 

to be delayed until he could improve conditions at the face and 

then overlook the setting of temporary supports which can be installed in a very short period of time. 

On the basis of the above discussion, I find that the preponderance of the evidence fails to support Deel's claim that he 

requested Inspector Strength to make a special inspection of the 

face areas on May 5. Since Deel failed to prove that he had requested such an inspection, the evidence also does not support 

Deel's claim that his discharge was motivated because of his 

having allegedly requested the inspection on May 5 which resulted 

in the inspector's issuance of three unwarrantable failure orders. 

The Firing of Two Shots at Once 

As has been shown in the preceding discussion, Deel accompanied the inspector during the spot inspection conducted on 

May 5, 1982. Deel has arrogated to himself great credit for the 

inspector's having cited DOW for a violation of section 75.1303 

in Order No. 922775 which alleges that permissible explosives 

were not being used in a permissible manner in the No. 7 heading 

and the crosscut right off the No. 7 heading because 24 charges 

(12 in each place) were shot or detonated at the same time (Exh. 

1). The inspector explained that DOW's shot-firing battery is 

designed to detonate only up to 20 shots at one time and that 

the violation consisted of DOW's shot fireman (Chann Fields) 

having detonated 24 charges simultaneously when, in fact, he 

should not have detonated more than the 12 charges by means of 

a single discharge of electrical energy from the shot-firing 

battery (Tr. 1084). 

Deel claims that when Strength found the wires running from 

the two headings tied in such a manner that they could have been 

fired simultaneously, Strength accused DOW of having shot both 

places at the same time. Deel contends that Stiltner stated 

that they wouldn't do such a thing and asked Deel to agree with 

him that the shots were fired separately, but Deel claims that 

he replied "Tivis [Stiltner], I ain't going to lie for you or 

nobody else" (Tr. 26). Deel also alleges that Strength told him 

that he might have to have Deel to testify ip court in support 

of that alleged violation. Finally, .Deel claims that Stiltner 

2142 
repeated that the two places were shot separately and again 

asked Deel to agree with him, but Deel states that he reiterated that he would not lie for anyone (Tr. 27). 

Strength recalled that Deel had said "The conditions are 

there and the evidence shows it; there's no need to lie about 

this" (Tr. 1051), but Strength did not recall whether Deel's 

statement was made in reply to any statement or question by anyone else. Additionally, Strength recalled that Stiltner said 

that he was unaware that the condition existed (Tr. 1051). 

Deel additionally alleged that he was "right over from 

Fields" when he fired the two shots at once and that he knows of 

his own knowledge that Fields shot both places at once (Tr. 27). 

Deel, however, did not tell the inspector that he had seen Fields 

shoot both places at once (Tr. 1091). The inspector did not recall hearing Stiltner try to persuade Deel to agree with him that 

the places had been shot separately. Stiltner testified that 

Strength rolled up the wires and took them with him as evidence 

in the event DOW contested the citing of a violation of section 

75.1303 (Tr. 885). The inspector kept the wires until after DOW 

had paid the proposed penalty for the violation and then discarded the wires (Tr. 1053-1054). When the inspector asked 

Fields if he had fired both places at once, Fields stated that 

they had been fired with separate cables, but the inspector told 

Fields that he could not agree with Fields because of the way 

the wires were tied together (Tr. 1052). 

Deel called Kyle Turner as a witness to corroborate Deel's 

contention that he had upset Stiltner by refusing to agree with 

Stiltner that the two places had been shot separately. Kyle 

claims to have walked by an intersection on May 5 and to have 

seen the inspector, Stiltner, and Deel standing in a heading and 

heard Stiltner asking Deel to try to go along with Stiltner in 

claiming that the two shots were fired separately, but Turner 

said that Deel refused, saying that the inspector could see from 

the physical evidence that both places had been fired at once 

(Tr. 286). Turner, however, could not recall where he was when 

he heard the alleged conversation and could not recall what he 

was doing (Tr. 287). Deel's counsel tried to establish on crossexamination that Stiltner was wrong in saying that Turner was 

engaged in setting temporary supports or safety jacks in the No. 

4 heading during the time they were inspecting the No. 7 heading 

where the double shots were fired. Stiltner agreed that supplies are stored in the vicinity of the No. 7 heading but continued to insist that Turner had no reason to be near the place 

where the double shots were alleged to have been fired (T~. 1011). 

There·· are at least two reasons for doubting Turner's claim 

that he heard Stiltner trying to persuade Deel to agree with 

Stiltner that the shots had been fired separately. First, it is 

2143 
a fact that Turner was working near the headings in which the 

inspector had cited DOW for failure to install sufficient temporary supports in three different headings. It could have taken 

him a considerable period of time to set temporary supports in 

all three headings and if he had to go to the No. 7 heading to 

obtain temporary supports or timbers, he should have recalled 

his need to do so. Second, Strength testified that Stiltner 

merely stated that he was unaware that the conditions found by 

the inspector existed. If Stiltner had engaged in an all-out 

effort to persuade Deel to agree with him that the shots had 

been fired separately, the inspector would surely have recalled 

Stiltner's efforts to persuade Deel to agree with him, yet the 

inspector does not recall that Deel's remark about the existence 

of the wires was made in response to any question by anyone (Tr. 

1051) • It is also highly unlikely that the inspector ever stated 

to Deel that the inspector might have to call Deel as a witness 

because the inspector was relying on the wires themselves as 

being all the evidence he needed to support his citing of the 

violation. Moreover, since Deel did not tell the inspector that 

he had seen Fields fire the two shots at once, the inspector had 

no reason to believe that Deel had any independent knowledge of 

the manner in which the shots were fired other than the physical 

evidence on which both Deel and the inspector were relying in 

concluding that both shots had been fired simultaneously. 

Deel's credibility with respect to the firing of two shots 

at once is greatly eroded by other inconsistent statements which 

he made when he testified before the Virginia Employment Commission and at the arbitration hearing. At the Virginia Employment 

Commission hearing, Deel gave the following account of the shotfiring incident (Tr. 44): 

A * * * and we went to Number 7 heading, and we found 

it had been double-shot, which is a federal violation, and the jumper wires was wired on through 

there, and Bill said, look here, we have found one 

that has been double-shot. Tivis [Stiltner] said, 

no; he said, that was shot the same turbine (sic). 

And he looked at him and said, now Tivis, you know 

it's been double-shot. He said, here's your lead 

wires and everything, and Bill [Strength] looks at 

me, and he said, now I want the truth; he said, 

what do you think about it? I said, well it's 

plain to see that places have been double-shot. 

He said, well I may have to call you for a witness 

when we have a trial, and he rolled the wires up 

and put them in his pocket as--you know, to show 

that the jumper cables were there. He took the 

cables and put them in his pocket for evidence. 

* * * 

2144 
It is obvious that Deel had forgotten, by the time he testified 

in this proceeding in February 1983, that he.had previously 

stated in the Virginia Commission hearing, held on September 22, 

1982, that his remark about the double-shot firing had been made 

in response to a question asked by the inspector, whereas in 

this proceeding, he claimed that his remark was made in response 

to at least two questions asked by Stiltner in an effort to get 

Deel to agree with Stiltner that the shots had been fired separately. 

As to Deel's claim that he saw Fields shoot both places at 

once and knew of his own knowledge that Fields had shot the two 

places at once, Deel was read in this proceeding (Tr. 190) the 

following testimony from the arbitration hearing held on May 28, 

19 8 2 (Tr . 7 2 - 7 3 ) : 

A. I said, I just said anybody can see the evidence 

is there; they are wired together. I said I wasn't 

there when they was shot. I said it's plain to see 

the evidence is there they was both shot together; 

but I wasn't going to lie and say they was shot one 

at a time because I wasn't there. * * * [Emphasis 

supplied.] 

Deel's explanation in this proceeding concerning the above inconsistent statements is as follows (Tr. 192): 

A Well, let me explain to you what I was meaning 

by that. I wasn't actually up there when he tied 

the inspector asked me if I was actually up there when 

he tied the cable from that cable to this cable. I 

wasn't actually up there, but I was over from Chann 

Fields when he mashed the trigger on it. I could --

half a break. I could see him and I could hear it. 

I wasn't right beside him. But what I was saying was 

I couldn't be an actual witness to him wiring them together because I wasn't there to see him wire them together; and what I mean by I was there, I was over from 

him, you know, I could hear him hollering fire, fire, 

fire, and I heard the shot go off when he pulled the 

trigger. 

I never did see him go back up in there and wire 

another one. I never did hear him yell fire, fire, 

fire and shoot nothing else over in there. 

Q Well, if you were that close by, wouldn't it 

have been obvious that he was shooting two places at 

once? 

A. Well, I had it figured for that;~but like I 

said, I couldn't swear, I never seen him tying the 

cables up there. 

2145 
I stated at the hearing that I was glad I had asked him about 

the two inconsi:;>tent statements because it appeared that Deel 

was telling two different stories (Tr. 192). Further examination of the statements shows that he did tell two different 

stories because he first stated that he knew of his own personal 

knowledge that Fields had fired two places at once, but then he 

changed his testimony when confronted with his prior statements 

in the arbitration hearing to state that he "couldn't swear" 

that· Fields had fired two places at once. Yet, that is exactly 

what he had done during his direct testimony in this proceeding--

sworn under oath that he knew of his own personal knowledge that 

Fields had fired two places at once. 

In the application which Deel filed on May 21, 1982, with 

MSHA, he alleged that "I told Tivis not to shoot two places at 

the same time in No. 7, but he did anyhow." When Deel was asked 

about that claim during cross-examination, he stated that he 

might have made that request on May 5 and that may be the reason 

that he recalls that two places were shot at once (Tr. 122). It 

is highly unlikely that Deel even knew it was a violation prior 

to May 5 that the mandatory safety standards prohibit the shooting of two places at once because he had previously worked with 

Randy O'Quinn on the evening shift and O'Quinn testified that 

they sometimes fired three places at once (Tr. 261). 

Other reasons for doubting that Deel ever brought the firing of two shots to Stiltner's attention are: (1) Deel was 

called out of the mine at 8:30 a.m. to accompany Strength during his inspection of the mine on May 5. If Deel had asked 

Stiltner not to shoot two places at once before he came out of 

the mine, that would have been foremost in his mind when he returned underground with the inspector and Deel would have called 

the shooting of two places at once to the inspector's attention, 

but the evidence shows that it was the inspector who found the 

wires and concluded that two places had been shot at once. (2) 

No shots were fired after Strength began his inspection of the 

face area. Therefore, if Deel had asked Stiltner on May 5 not 

to fire two places at once, his tendency to brag about his 

safety-related activities would have compelled him to tell the 

inspector that he had asked Stiltner not to fire two places at 

once before he left the face area to come outside for the purpose of accompanying Strength during his inspection. 

On the basis of the discussion above, I find that the preponderance of the evidence shows that Inspector Strength was 

the sole person who discovered evidence leading to a conclusion 

that Fields had fired two places at once. Since Deel played no 

- part in calling the alleged violation to the inspector's attention, DOWJs management would have had no reason to retaliate 

against Deel merely because he had repeated ..the inspector's own 

words and had stated at the time the· inspector found the wires 

2146 
that the physical evidence supported the inspector's belief that 

two shots had been fired simultaneously. In such circumstances, 

the inspector's citing DOW for firing two shots at once, based 

on physical evidence leading to a conclusion concurred with by 

Deel, would not have been a protected activity which would have 

motivated DOW to discharge Deel on May 7, 1982, or 2 days after 

the inspector had cited DOW for the violation of section 75.1303. 

Stiltner's Alleged Threat 

Deel claims that on May 6, 1982, the day after the order 

had been written citing DOW for shooting two places at once, 

that when the miners were getting into the mantrip to go outside, 

the miners were kidding Stiltner about the fact that Deel had refused to lie for him so that the inspector would not cite a violation, Stiltner is alleged to have looked at Deel and said, 

"I'll make you pay for this one" (Tr. 27; 120). Deel said that 

he figured Stiltner just meant that he would work Deel hard, like 

having him drill and roof bolt by himself, but instead Stiltner 

fired him the next day, May 7. 

Stiltner denies having made such a statement (Tr. 836) and 

Fields testified that he did not hear Stiltner make such a statement (Tr. 723). On the other hand, both Randy O'Quinn and Kyle 

Turner claim to have heard Stiltner's alleged threat (Tr. 220; 

28 8) . 

I believe that Stiltner's denial of having made the threat 

is more credible than Deel's claim because the inspector stated 

that all Stiltner said in response to the inspector's allegation 

that two places had been shot at once was a statement that he 

was unaware that the condition found by the inspector existed. 

It was just as obvious to Stiltner that the wires spoke for 

themselves as it was to the inspector and about the only denial 

Stiltner could have made was that he was unaware of the fact 

that the wires had been connected so as to support a conclusion 

that two places had been shot simultaneously. Deel gave inconsistent accounts, as indicated on pages 23-24, supra, about his 

personal knowledge of what had happened. Stiltner would have 

had no reason to threaten Deel about his part in bringing about 

the issuance of Order No. 922775 (Exh. 1) because Stiltner knew 

that the inspector had found the alleged violation by himself 

and had taken the wires as evidence that the violation had occurred. Nothing Deel could have said would have changed the 

inspector's belief that a violation occurred and there was no 

reason for Stiltner to have been carrying any special ill will 

toward Deel for the fact that the inspector had cited DOW for a 

violation of section 75.1303. 

2147 
Failure To Install Curtains and Failure To Apply Rock Dust 

Deel claims to have irritated management by constantly complaining about the fact that DOW failed to maintain curtains as 

close to the face areas as he thought was required and for failure to apply rock dust as close to the face as Deel thought was 

required (Tr. 9; 12). The evidence shows that Deel operated a 

scoop at times and Deel conceded that he personally knocked down 

curtains at times and sometimes he would just tell the "curtain 

man" he had knocked the curtain down so that the curtain man 

could rehang the curtain (Tr. 63; 67). Deel also conceded that 

the "curtain man", Darrel O'Quinn, had threatened to hit him in 

the head with a hammer if he drove through a curtain which was 

not intended as a travelway for the scoop (Tr. 64-65). While 

Deel contended that the confrontation with Darrel over Deel's 

running through the curtain occurred shortly after Deel had been 

recalled and that Deel was not familiar with the layout of the 

mine at that time since they were developing a different area of 

the mine from the one in which he had been working when he was 

laid off in 1981 (Tr. 65), the fact remains that DOW was using 

the same seven-entry mining system when Deel was recalled in 1982 

that was being used in 1981 when Deel was laid off. Deel claims 

to have been an experienced miner and should have familiarized 

himself with the travelways being used for scoops before he got 

on a scoop to operate it. Deel also agreed during cross-examination that DOW's position as to the hanging of curtains was reasonable and that DOW had had so much trouble with the miners 

knocking down curtains that DOW had had to assign one miner, 

Darrel O'Quinn, to the job of hanging and maintaining the curtains (Tr. 200). Neither Deel nor O'Quinn was able to explain 

why DOW would have gone to the expense of assigning a miner to 

the sole job of hanging curtains and would then have refused to 

supply curtains, as alleged by Deel (Tr. 12, 68; 937). 

While Randy O'Quinn supported Deel's claim that DOW did not 

maintain the curtains as required by the mandatory safety and 

health standards, O'Quinn admitted that he personally failed to 

maintain the curtain at the required distance from the face when 

cold weather prevailed because the cold air made him uncomfortable (Tr. 938). O'Quinn also conceded that when he was failing 

to maintain the curtain at the required distance from the face, 

he was necessarily relying entirely on the methane monitor to 

safeguard him from encountering a hazardous concentration of 

methane (Tr. 939). 

Deel also contended that he complained to DOW's management 

about their failure to keep the mine properly rock dusted (Tr. 

9; 36). Exhibit 1 contains one citation alleging a violation of 

section 75~403 for failure of DOW to apply an adequate amount of 

rock dust and three citations alleging that DQW had failed to 

clean up accumulations of loose coal and coal dust. There is no 

2148 
doubt, therefore, that DOW failed to apply adequate amounts of 

rock dust, but the issue in this case is whether Deel's complaints 

about DOW's failure to apply rock dust contributed in any way to 

his discharge. There are several aspects about Deel 1 s understanding of the mandatory safety standards which cause me to conclude 

that Deel did not really complain to DOW about the failure to 

rock dust in a way which would have motivated DOW to discharge 

him for that reason. 

I believe that if Deel had comolained to the mine foreman 

and the section ·foreman about their~failure to hang curtains and 

their failure to rock dust, they would have explained to Deel 

that he was in error about his contentions as to how close to the 

face rock dust has to be applied. Yet, the evidence clearly shows 

that Deel did not understand the regulations and argued with me 

on the record as to the meaning of section 75.402, contending 

that DOW was required to apply rock dust to within 35 feet of the 

working face and that section 75.402, which requires rock dusting 

only to within 40 feet of the working face, is inapplicable to 

DOW'S mine (Tr. 201). 

Deel, unfortunately, cannot read well enough to understand 

the citations, orders, and regulations to which he was exposed as 

a safety committeeman and the miners' representative to accompany 

inspectors pursuant to section 103(f) of the Act (Tr. 75). Deel 

testified that the inspector mailed copies of the citations and 

orders he issued to Deel at his home address and that he had his 

wife read the contents of the citations and orders to him (Tr. 76). 

If Deel did have his wife read the language on the citations and 

orders to him, he did not understand what was being read to him 

because Citation No. 922767 makes it clear that section 75.400 

is enforced only to within 40 feet of the face. Deel also was 

uncertain as to how close to the face the line curtain must be 

maintained (Tr. 69). The inspector stated on the termination 

sheet accompanying Order No. 922764 that DOW's ventilation, 

methane, and dust control plan requires DOW to maintain the line 

curtain to within 10 feet of the working face (Exh. 1). 

On the basis of the discussion above, I find that Deel failed 

to become acquainted with the mandatory health and safety standards sufficiently to be effective in his role as safety committeeman and that his complaining about curtains and rock dust applications were not likely to have been of sufficient concern to 

DOW's management to cause them to want to discharge him because 

he may have mentioned the lack of curtains and failure to rock 

dust on a few occasions. 

There are other aspects about Deel's alleged complaints 

about failure to erect curtains, apply rock dust, and clean up 

loose coal which are less than convincing. For example, Deel 

contends that temporary supports or safety jacks were not being 

set, but he conceded on cross-examination that it is the duty of 

2149 
the operator of the roof-bolting machine to install the safety 

jacks. Since Deel generally operated a roof-bolting machine, 

he necessarily recognized that he had to be a primary of fender 

if the safety jacks were not being set, so he claimed that the 

section foreman, Stiltner, had ordered him not to set safety 

jacks, or temporary supports, because it took toQ much time to 

set them (Tr. 126). 

Taylor, the mine foreman, claims that he ordered Stiltner 

to have Deel set temporary supports on at least one occasion 

when he saw Deel installing roof bolts without using them (Tr. 

423; 844). Taylor also stated that the miners were not using 

safety jacks when he became mine foreman and that that was one 

of the areas in which he tried to improve safe mining practices 

at the mine (Tr. 421-423). Stiltner testified that the miners 

objected to erecting safety jacks when he ordered them to do so. 

He said that when they asked him if they would be fired for not 

setting them, he told them he would not fire them for failing 

to set them, but he would have to give them time to do so and 

would have to see that they worked safely (Tr. 844). It is not 

likely that miners would ask if they could be fired for failing 

to install safety jacks unless they had a propensity for preferring to ignore the requirement for setting safety jacks. 

Consequently, it is just as likely that safety jacks were not 

being set because that was the miners' preference as much as it 

was that Stiltner had told them he would prefer that safety 

jacks not be set, as claimed by Deel (Tr. 126). 

If Deel had been the aggressive safety committeeman that 

he contends he was, he would have had an ideal situation for 

calling an MSHA inspector to get it established that the setting 

of safety jacks is required by DOW's roof-control plan. Deel 

contends, without record support as indicated above on page 14, 

supra, that he called Inspector Strength to ask for a special 

inspection when the belt-control switch was bridged out, and he 

contended that he called Inspector Strength to ask for a special 

inspection as to loose coal accumulations along the belt line 

(Tr. 36). There is hardly any explanation for Deel's failure 

to insist on setting safety posts, if he had really been instructed not to do so, other than the simple fact that he was 

too lazy to bother with setting them himself and brought up the 

matter of DOW's failure to require the setting of safety posts 

as just one more contention about his alleged safety-related 

complaints. 

In his complaint filed with MSHA on May 21, 1982, Deel 

stated "* * * I asked Tivis [Stiltner] to have Chann to pull 

the curtain 30 feet out the face before he shot the coal. 

Tivis said that Chann didn't have to. That you could do it 

yourself" (Exh. 2; Tr. 70-71). If DOW had cqmplied with the 

aforesaid request, it would have been in violation of the mandatory health and safety standards and its own ventilation, 

2150 
methane, and dust control plan. One of DOW's owners, Walker W. 

Hay, testified that they were shooting from the solid and that 

the explosives would knock holes in the curtains and throw them 

back down the track about 20 feet outby the face. Therefore, 

he said that in 1981 DOW asked MSHA for a variance in its ventilation plan which would permit them to set the curtains back 

out of the way prior to detonating the shots so that the curtains would not get torn or knocked down by the explosives. 

MSHA denied the request (Tr. 366-367). 

Deel's allegation that he asked Stiltner to have the curtain moved back 30 feet before blasting shows that he did not 

understand the reason for having the curtain close to the face. 

Noxious fumes, methane, and dust are very likely to accumulate 

at the working face immediately after explosives are detonated. 

It is safer for the miners to have a damaged curtain hanging as 

close as possible to the face after a shot is detonated, than 

to have the curtain removed 30 feet from the face before the shot 

is detonated. A damaged curtain will remove some dust, noxious 

fumes, and methane, but a curtain which is 30 feet outby the 

face will have no ability whatsoever to sweep dangerous accumulations from the working face. 

The above discussion shows that Deel was simply uninformed 

as to what the safety and health regulations were. Management 

necessarily had to deny some of his complaints about safety, if 

they were made, because he was asking management, at least part 

of the time, to violate the safety and health standards and to 

perform acts which were not required by its ventilation plan. 

In such circumstances, it cannot be successfully argued that DOW 

would have discharged Deel because he was making safety complaints. 

Additionally, Deel's condemnation of DOW's management is 

inconsistent like all his other allegations in this proceeding. 

For example, Deel testified that when he was first elected as 

safety committeeman, DOW's management cooperated with him and 

provided him with all the supplies he wanted to make the mine 

safe. Deel states that, as a result of DOW's cooperation, the 

mine received no citations of violations during the first inspection which occurred after he became safety committeeman (Tr. 

199' 431). 

It is correct that Inspector Strength did not write any 

citations during the first inspection he made after Deel became 

safety committeeman, but Deel was elected safety committeeman 

on Saturday, April 3, 1982, and Deel's first day at the mine as 

safety committeeman occurred on Monday, April 5, 1982. The 

"clean" inspection made by the inspector on April 5 and April 6, 

1982, during which no citations of violations occurred, would 

necessarily have been made on the basis of the way the mine had 

been left by Chann Fields, who was superseded" by Deel as safety 

committeeman. DOW's management did not even know that Deel had 

2151 
been elected to replace Chann Fields as safety committeeman until 

April 5, 1982 (Tr. 711). In such circumstances, Deel cannot take 

credit for the fact that no violations were cited by the inspector when he examined the mine on April 5 and April 6, 1982. 

The effect of Deel's having claimed that DOW's management, 

when he was first elected committeeman, cooperated with him and 

provided him with all the supplies he needed to make the mine 

safe, leaves Deel in the position of having indicated that DOW's 

management was interested in operating a safe mine on or about 

April 5, 1982. Deel was the safety committeeman for 32 calendar 

days prior to his discharge and only actively performed the duties of a safety committeeman for a period of about 20 days, as 

indicated on page 11, supra. Deel has not established that he 

actually did anything after April 5 which would have changed 

DOW's position regarding safety within a period of 32 days so 

drastically that DOW would have wanted to discharge its safety 

committeeman just because he had tried to make the mine safe. 

As will hereinafter be shown, it was Deel's failure to do his 

job properly which caused him to be discharged--not his alleged 

protected activity under section 105(c) (1) of the Act. 

Deel's Allegations of Disparate Treatment 

Deel testified during his direct testimony and crossexamination (Tr. 42; 48) that he had not refused to perform a 

work order and that he did not know of anyone else who had ever 

refused to perform a work order. Randy O'Quinn testified, however, that he had refused to perform work orders and that Deel 

"thought it up" and had his attorneys ask O'Quinn about it (Tr. 

273). The nearest O'Quinn ever came to refusing a direct order 

was one time when he was working for Jim Deel (who is not related 

to complainant (Tr. 353) and who was a section foreman). On that 

occasion, O'Quinn refused to watch the belt drive and said he was 

going home if that was all they had for him to do. He alleges 

that when he went outside at that time to hang up his light, 

Taylor, the mine foreman, asked him where he was going and persuaded him to go back into the mine to work on an extension of 

the water line (Tr. 912). O'Quinn also claims to have refused to 

perform work orders given by Stiltner, such as refusing to run 

the drill, and that Stiltner would undertake to drill a few holes 

and would feign that the drilling was hurting his back and 

O'Quinn would then take over and go ahead with the drilling (Tr. 

910-911). The only time O'Quinn ever claimed to have refused to 

perform a work order, without changing his mind and doing the 

work after having said he would not do it, was in connection with 

the aforesaid incident of watching the belt drive, and even in 

that case, he relented and returned underground to perform alternate work other than watching the belt drive. Moreover, that alleged refusal to work involved a different section foreman from 

the one who discharged Deel. 

2152 
In this proceeding, it is a fact that O'Quinn first told 

Stiltner that he was sick and could not go after an auger barrel 

which Stiltner had requested him to obtain. Yet, a few minutes 

later, he either went back to work voluntarily, as contended by 

Stiltner (Tr. 823), or he obeyed Stiltner's request that he go 

back to work, as he claimed (Tr. 226). Therefore, the record 

does not support Deel's claim that Stiltner allowed other miners 

to refuse to perform work orders without disciplining them, 

whereas Stiltner discharged Deel for refusing to perform a work 

order. 

Kyle Turner stated at the arbitration hearing that he believed Stiltner treated all the miners on his crew alike (Arb. 

Tr. 122). Although Turner had some difficulty in answering a 

question about Stiltner's equal treatment of the miners when he 

testified in this proceeding, he ultimately conceded on crossexamination that his statement made at the arbitration hearing 

was correct (Tr. 297-300). When Turner testified on redirect 

examination of his rebuttal testimony, however, he was finally 

persuaded to state that he thought Deel was treated "a little 

different from the rest of the men" (Tr. 1000), but that change 

of opinion was elicited from him after several admissions to the 

contrary. 

The different treatment Turner appears to have been referring to would apparently have been Turner's allegation that 

Stiltner had at times assigned Deel to run the coal drill which 

involves considerable manual labor (Tr. 342). Turner stated 

that Stiltner always told them on such occasions to bolt the 

places as fast as they could just to make Deel work hard (Tr. 

326; 973), but Turner subsequently said that he still switched 

jobs sufficiently to avoid making it "that hard" on Deel (Tr. 

343). Turner also conceded that he rarely had to work on the 

same roof-bolting machine that Deel was assigned to operate (Tr. 

987-988). 

O'Quinn also testified that when Deel was working on the 

night shift prior to the time Deel was laid off in 1981 for 

econimic reasons, that Stiltner once granted Deel's request 

that he be permitted to work at the face, instead of at the tailpiece where he was normally assigned to work. On that occasion, 

Stiltner told O'Quinn to make Deel do all the drilling, but 

O'Quirin also admitted that he had a miner named Mack Lester helping him and that Lester liked to drill and did all the drilling, 

so that the way they made it "hard" on Deel was that they just 

worked faster than usual so that they were able to bolt and drill 

10 places that night instead of eight (Tr. 964-966). 

O'Quinn additionally stated that Stiltner, in those days, 

would assign Deel to performing work at the tailpiece just to 

get Deel out of the face area because Deel "got under his skin" 

2153 
and he did not want Deel where he had to.see him very often (Tr. 

960). There was certainly nothing about Deel's activities in 

the mine that indicated he was a safety-conscious leader in those 

days because he requested permission to help a crew of men operate in the face area at a time when they were carrying explosives 

on the top of the roof-bolting machine--a procedure which was 

certainly as hazardous as it was for Chann Fields to haul explosives on his tractor. Yet Deel does not claim that he or anyone 

else ever pointed out to DOW's management that hauling powder on 

the roof-bolting machine was an unsafe practice. 

In order for Deel to prove that DOW discriminated against 

him, he must show that he was treated differently from the other 

miners because of some activity protected under the Act, but Deel 

has been unable to show that his different treatment, if any, had 

anything whatsoever to do with safety-related activities. Stiltner testified that he discharged Deel on May 7 because he "had 

had it" with him (Tr. 810). 

The record shows that Deel engaged in activities which were 

in no way protected under the Act and in conduct which would 

necessarily cause a supervisor to want to assign him to tasks 

that would make it unnecessary for the supervisor to come in contact with him. For example, Stiltner testified that one night 

when Deel was working on the night shift, also before he was 

ever laid off in 1981 for economic reasons, that the electrical 

power kept going off at the main power source and Stiltner could 

not determine what was causing the power interruptions. Finally, 

one of the miners told Stiltner that Deel was sitting behind the 

rectifier kicking the power off. Stiltner said that he went to 

the power source and found Deel sitting behind the rectifier. 

Stiltner stayed at the rectifier for an hour or longer and the 

power never did go off any more after that. Stiltner stated 

that after Deel was called back to work in 1982, Deel admitted 

under questioning by Stiltner that he had been knocking the power 

off, but he said that Stiltner could not prove it and could not 

do anything about it (Tr. 845-846). Deel made no attempt to rebut Stiltner's allegations about his power-interrupting activities. 

In my opinion, if any other miner had been as obstinate about doing the work assigned to him by his foreman as Deel was 

on May 7, Stiltner would have taken the same action against that 

miner that he did in connection with Deel's failure to operate 

the scoop. I find that the preponderance of the evidence fails 

to support Deel's contentions that he was treated differently 

from other miners because of his safety-related work as safety 

committeeman or because of any other activity protected under 

the Act. 

2154 
The Aborted Discharge 

About 1 (Tr. 115) or 3 (Tr. 819) weeks before Deel was 

actually discharged, Stiltner did not have a full crew of miners 

and requested Deel to install roof bolts as well as drill holes 

in the face for the placement of explosives. About 8:30 a.m. 

Stiltner checked the face area and found that Deel was not doing 

anything and had only drilled holes in one heading. Stiltner 

asked Deel what. was wrong and Deel told Stiltner that installing 

roof bolts and running the drill were too hard for one man to do 

and that he was not going to do both jobs. Stiltner advised Deel 

that his response left Stiltner with no alternative but to take 

him outside for purposes of discharging him. As Stiltner and 

Deel were passing the loading point in a scoop, Deel asked to 

talk to his committeeman, Kyle Turner, who was at the loading 

point. After a discussion between Turner and Deel, Turner asked 

Stiltner to put Deel back to work as Turner did not think Deel 

had refused to perform both jobs. Stiltner asked Deel if he 

would do his job if he put him back to work and Deel said he 

would. Therefore, Stiltner allowed Deel to return to the roofbolting machine~ Stiltner said that he went to check on Deel about 10 minutes later and Deel had still not started installing 

roof bolts. Therefore, Stiltner ran the roof-bolting machine for 

the remainder of the day so that Deel would only have to operate 

the drill (Tr. 820-821). · 

Deel's story in this proceeding about his having to drill 

holes and install roof bolts on the same day differs from Stiltner' sonly in that Deel contends that he had already drilled 

three or four places before Stiltner found him resting long 

enough to get his breath before going into a new place (Tr. 117). 

Deel also claims that Stiltner "hollered" at him to get moving 

and he meant right then. Deel says that when he told Stiltner 

that Stiltner could make him do the work, but could not make him 

"run" at it, Stiltner told him he was fired and started taking 

him out of ·the mine in the scoop, but Stiltner stopped so that 

Deel could talk to Turner who persuaded Stiltner to put Deel 

back to work (Tr. 117-118). Deel also agrees that Stiltner ran 

the roof-bolting machine for the remainder of the day so that 

Deel only had to operate the drill for the rest of the shift 

(Tr. 120). 

Once again Stiltner's version of the incident is more credible than Deel's because Deel endeavored to justify his position 

by claiming that he had already drilled three or four places before Stiltner asked him to get to work (Tr. 117). It is necessary to bolt the top before drilling is done at the faQe (Tr. 

182). Several witnesses, including Deel, have testified that 

it takes 15 minutes to install roof bolts without using temporary supports and that it takes at least 10 m;inutes to drill 10 

holes in one place (Tr. 127; 162; 776; 942). Therefore, it 

would have taken Deel three times 25 minutes to install roof 

2155 
bolts and drill in three places and 100 ~inutes to bolt and drill 

four places. Deel did not deny that his riear discharge occurred 

about 8:30 a.m. as claimed by Stiltner. The miners go underground at 7:00 a.m. and it takes about 25 minutes to arrive at 

the working place (Tr. 720; 1069). They generally spend some 

time emptying the dust-collecting box and checking over the roofbol ting machine and drill (Tr. 133; 187; 793). Therefore, it is 

quite unlikely that Deel had been working for as much as an hour 

before Stiltner. asked him why he was not working. In an hour's 

time, he would not have been able to install roof bolts and drill 

in three or four places before Stiltner asked him why he was not 

working. Stiltner was upset because Deel had drilled only one 

place before Stiltner found him doing nothing. There is no reason to believe that Stiltner would have been upset if he had 

actually drilled three or four places before Stiltner found him 

"resting". 

At the Virginia Employment Commission hearing, Deel testified that he had been running both the roof-bolting machine and 

doing the drilling by himself for almost 3 days before Stiltner 

started to discharge him (Emp. Com. Tr. 41), but in this proceeding, he claimed that he had been assigned to do both types 

of work only "that morning'' (Tr. 115). Stiltner testified that 

other miners, such as Turner, had been assigned the dual jobs of 

installing roof bolts and operating the drill (Arbitration Hearing, Tr. 8) . 

Regardless of whether Stiltner was unduly critical of Deel's 

work efforts on the day he almost discharged Deel, the fact remains that Deel was involved in a confrontation with his foreman 

which caused the mine committeeman to think it was necessary to 

explain to Deel that he could not refuse to perform a work order 

(Arb. Hearing Tr. 70). Moreover, Deel testified at the arbitration hearing that he was aware of the fact that he was required 

under union rules to carry out a foreman's instructions and subsequently file a grievance if he felt that the work order was 

unreasonable (Arb. Hearing Tr. 96). Deel's statement that he 

replied to Stiltner's order for him to get to work by saying that 

Stiltner could make him work but couldn't make him "run" at it 

was argumentative and was equivalent to saying that he would 

work as slowly and do as little as he found it convenient to do. 

Stiltner's willingness to abort his trip out of the mine 

after the mine committeeman's appeal that Deel be given another 

chance to do his job shows that Stiltner was not unreasonable in 

his demands of his employees and, in fact, Deel admitted during 

cross-examination that he thought Stiltner was "fair" in performing his supervisory duties (Tr. 120). There is nothing about 

Deel's near discharge for failing to perform the jobs of roof 

bolting and drilling which indicates that DOW. would have discharged 

him that day or on May 7 because of his having made alleged safety 

complaints to DOW's management or to MSHA. 

2156 
The Actual Discharge 

At the time Deel worked for DOW, coal was produced by a 

conventional mining process involving the use of two roofbolting machines, two coal drills, three or four batteryoperated scoops, and conveyor belts (Tr. 267; 806-807). The 

coal drills operated from hydraulic power supplied by the roofbol ting machines (Tr. 181). Two miners were assigned to each 

roof-bolting crew. Normally, one of the miners would operate 

the roof-bolting machine and the other would operate the coal 

drill, but often the miners would swap jobs so that each one 

would engage in an equal amount of coal drilling which involved 

more actual manual labor than operating the roof-bolting machine 

(Tr. 117; 184; 342; 708-710). When the normal crew of men was 

available, Billy Deel and Kyle Turner were considered the operators of the roof-bolting machines (Tr. 275). Lee Grizzle was 

assigned to operate the coal drill attached to Turner's roofbolting machine and Randy O'Quinn was assigned to operate the 

coal drill attached to Deel's roof-bolting machine (Tr. 162; 

987). Chann Fields was the shot fireman, Floyd O'Quinn was one 

of the operators of a scoop, and Darrel O'Quinn was assigned as 

curtain man to install ventilation curtains at the face and outby the face (Tr. 806-807). Darrel O'Quinn was off in May of 

1982 and Stiltner, the section foreman, was short a scoop operator because of absenteeism (Tr. 680). A miner by the name of 

Clayton Justice had been hired as a prospective section foreman 

on April 19, 1982, on the assumption that DOW would be able to 

open another section in the mine (Tr. 679; 705). Justice had 

not operated scoops as they were used in DOW's mine and had not 

operated a roof-bolting machine like the ones used in DOW's mine, 

but he was competent as an operator of a coal drill (Tr. 771; 

775; 782). Justice was assigned to operate the coal drill attached to the roof-bolting machine which was normally operated 

by Deel and Randy O'Quinn (Tr. 788). Deel and Randy O'Quinn 

were also experienced operators of a scoop and, for that reason, 

they had been asked to alternate between the jobs of operating 

the scoop and operating the roof-bolting machine (Tr. 124; 186; 

773; 792; 801). The above-described arrangement required that 

on the days when O'Quinn was assigned to the roof-bolting 

machine, Justice did the drilling. Likewise, when Deel was 

assigned to the roof-bolting machine, Justice did the drilling 

Tr. 7 8 5 ; 7 8 8 ) . 

Deel's discharge on Friday, May 7, 1982, occurred because 

he insisted on operating the roof-bolting machine despite the 

fact that his supervisor, Stiltner, wanted him to operate a 

scoop and haul coal from the working faces to the conveyor belt 

(Tr. 773; 809-810). About half of the testimony in this proceeding was devoted to listening to Deel's, O'Quinn's, Justice's, 

Stiltner's, ~aylor's, Fields', and Turner's yersions of the incidents which led up to Stiltner's decision to discharge Deel 

2157 
for insubordination. It is significant that Deel did not voluntarily give an account of the events which led up to his discharge 

in the complaint he filed with MSHA, or in the complaint filed 

with the Commission, or in his direct testimony in this proceeding. Deel's failure to give in his direct testimony a complete 

running account of his version of the incidents of May 7, 1982, 

requires one to collect his version of those events from various 

places throughout his cross-examination. 

If all the statements made by Deel during cross-examination, 

redirect examination, recross-examination, and my examination are 

pieced together, Deel's version of the events is as follows: On 

May 7, 1982, Deel was asked by Stiltner to get a scoop and use 

it to pull the mantrip into the mine (Tr. 100). After Deel arrived at the working section, he delivered the miners to their 

working places, unhooked the mantrip, and proceeded on the scoop 

to "his" roof-bolting machine (Tr. 102-103; 125; 173). Although 

Randy O'Quinn and Clayton Justice were already at "his" roofbolting machine when Deel arrived, the fact that two miners were 

there did not have any significance to Deel because Justice was 

getting something to eat out of his lunch bucket which was carried on Deel's roof-bolting machine (Tr. 183). Additionally, 

Justice had been assigned to drill from Deel's roof-bolting machine before May 7 and Justice, Deel, and O'Quinn would just 

swap jobs and work together (Tr. 184). There was no significance 

to Deel that Justice asked Deel what job he was planning to do 

that day because, when Deel told Justice that he was planning to 

operate the roof-bolting machine, Justice said only that he 

guessed he would operate the scoop (Tr. 185). 

Justice, after saying he guessed he would have to operate 

the scoop, got on the scoop which Deel had parked near the roof 

bolter and left. In a little while, Justice returned and stated 

that Stiltner, the mine foreman, wanted Deel to run the scoop 

that day and wanted Justice to run the coal drill hooked to the 

roof-bolting machine. Deel's reply to Justice's message from 

Stiltner was that if Stiltner wanted Deel to run the scoop that 

Justice should go back to Stiltner and tell him to come to the 

roof-bolting machine in person and tell Deel what he wanted Deel 

to do. Justice left again on the scoop and returned on foot a 

little while later (Tr. 172-173). Deel, upon Justice's second 

appearance, asked Justice what the story was now and Justice 

told him that Stiltner said he would be up there to talk to Deel 

"in a minute" (Tr. 187). 

Stiltner soon thereafter rode to Deel's roof bolter on a 

scoop and Deel claims that the first thing he said to Deel when 

he arrived was "to get my goddamned ass in the buggy." Deel 

said "What?" and Stiltner then asked, "Are you refusing to run 

a scoop?" to which Deel replied, "No, sir, I ain't refusing to 

do nothing." Stiltner then said, "We1:1, you're fired. Get your 

damn ass in the buggy, you're going to the outside." (Tr. 103). 

2158 
About that time, Deel claims that Stiltner turned to O'Quinn 

and started talking to him about an auger barrel needed for the 

coal drill and Stiltner tried to send O'Quinn to get one, but 

O'Quinn did not want to go after one on foot, so O'Quinn told 

Stiltner he was sick and was going home. Stiltner told O'Quinn 

to get his ass in the scoop's bucket and then Stiltner looked 

at Deel and told him to get in the scoop bucket also (Tr. 103-

104) • 

Deel said that after Stiltner started out of the mine with 

both him and O'Quinn in the scoop's bucket, Deel asked Stiltner 

three or four times to stop so that Deel could talk to his safety 

committeeman, Kyle Turner. Deel says that Stiltner finally 

stopped and a discussion ensued during which Turner asked Stiltner to give Deel another chance since, as Turner understood the 

matter, Deel had not refused to operate the scoop. Deel claims 

that Stiltner calmed down a lot and asked Deel if he were to put 

him back over there, would Deel run coal and Deel said he would. 

Deel thinks that Stiltner would have allowed him to go back to 

work if, about that time, Chann Fields had not spoken up and 

said, "There ain't no damn use arguing with him any more. Take 

him the hell on out (Tr. 114) ." Whereupon, Deel says that Stiltner told Deel and Turner both to get in the scoop's bucket and 

he would take both of them outside. Deel additionally claims 

that Stiltner did not want O'Quinn to be a witness to the conversation he was having with Turner and Deel and ordered O'Quinn to 

go back to work and O'Quinn got out of the scoop's bucket and 

went back to the roof-bolting machine (Tr. 114-115). 

Stiltner's version of what happened on May 7, 1982, is as 

follows: Stiltner says that he explained to Deel before they 

went into the mine that he was short a scoop operator that day 

and that he would take the little scoop in and try to operate it 

himself along with doing his supervisory duties and that he 

wanted Deel to get the big scoop and pull the mantrip in with 

it. The reason Stiltner had the discussion with Deel about the 

"little" and "big" scoops was that Stiltner had had some stomach 

problems associated with internal bleeding and he had found that 

he could be more comfortable in the little scoop than he could 

in the big one. Stiltner stated that Deel also wanted to take 

the little scoop and it was necessary for Stiltner to insist 

that Deel use the big scoop (Tr. 807; 857). 

Chann Fields rode into the mine with Stiltner in the little 

scoop and all the other miners went underground in the mantrip 

pulled by Deel. Stiltner let Fields off at his tractor used to 

pull the explosives wagon and Stiltner then drove the little 

scoop to the belt tailpiece where Stiltner needed to make some 

repairs. While Stiltner was working on the belt, Clayton Justice 

came to see him riding on the big scoop which Deel had used to 

pull the mantrip into the mine. Justice told~Stiltner that Deel 

had decided he wanted to operate the roof-bolting machine and 

2159 
that Justice assumed that Stiltner wanted.him to run the scoop, 

but Stiltner told Justice to go back to the roof-bolting machine 

and tell Deel that he wanted Deel to run the scoop and for Justice to drill coal. Subsequently, Justice returned and stated 

that Deel had told him he was not going to run the scoop and for 

Stiltner to come up there and talk to him. Stiltner says he 

told Justice to park the big scoop and go back and tell Deel 

that he would be up there in a few minutes (Tr. 808). 

Stiltner says that he got in the little scoop a short time 

later and drove over to the roof-bolting machine where he asked 

Deel what his problem was and Deel stated that he did not have 

any problem. Stiltner then asked him why he wouldn't run the 

scoop and Deel said that he wouldn't run the scoop and let somebody else do his job. Stiltner then told Deel "to either get 

on his scoop or get in the bucket" (Tr. 809). Deel then came 

toward the scoop's bucket. At that time, Stiltner looked at 

O'Quinn and asked him why he was not working and O'Quinn said 

he needed an auger barrel for the drill. Stiltner told O'Quinn 

to go get one, but O'Quinn said that he was sick--had an earache 

or something like that--and was going to the house. O'Quinn 

then got into the scoop's bucket with Deel and Stiltner started 

outside with both of them (Tr. 809). 

After they had gone about two breaks, Deel wanted to stop 

and talk to the committeeman, Kyle Turner. Stiltner stopped the 

scoop and Deel got out and went to talk to Turner. O'Quinn, 

according to Stiltner, decided he felt like working and went 

back to the roof-bolting machine. After Turner and Deel had 

talked for a few minutes, both of them came over to Stiltner who 

was still sitting on the scoop. Turner asked Stiltner what the 

problem was and Stiltner says he explained to Turner that Deel 

had told him that he was not going to run a scoop and let someone else operate his roof bolter. Stiltner claims that Turner 

asked him twice to put Deel back to work and Stiltner refused 

both requests, saying that "he had had it with" Deel and was 

taking him out (Tr. 810). Stiltner alleges that he then told 

Turner that he would do even better than taking Deel out and 

would take Turner and Deel both out so they could all talk to 

the mine foreman, Taylor. 

Chann Fields, who had already returned with the auger barrel which O'Quinn had asked him to obtain, was listening to the 

discussion in which Stiltner, Turner, and Deel were engaged. 

Fields needed to obtain an explosives-shooting battery from outside the mine and, feeling that the discussion was at an impasse 

at this point, spoke up and said that if Stiltner was going out, 

he would like for Stiltner to bring him a shot-firing battery 

when he returned. Turner, Deel, and Stiltner all say, however, 

that Fields began his statement by saying, "There ain't no use 

2160 
arguing about it no more. Take him on out." Turner and Deel 

claim that Stiltner would have relented and would have put Deel 

back to work if Fields had not made that statement (Tr.· 114; 

285), but Stiltner claims that it was none of Fields' business 

in the first place and that Fields' statement did not influence 

his determination to discharge Deel for insubordination (Tr. 824-

825) • Fields denies that he stated anything about there not being any use to argue and that Stiltner should go ahead and take 

Deel outside, but.he agrees that he did ask for Stiltner to bring 

him a shooting battery (Tr. 749; 758). 

Regardless of whether Fields influenced Stiltner's decision, 

all witnesses agree that Turner and Deel got into the scoop's 

bucket and were taken outside by Stiltner. There is no need in 

giving a detailed discussion here of what occurred on the surface 

of the mine as those facts are not contested by the parties, except in very minor details, and are summarized in Finding Nos. 

17 and 18, supra. 

As indicated.above, Clayton Justice was the miner who carried Deel's statements to Stiltner and Stiltner's replies back 

to Deel. Justice was also present when Stiltner returned from 

working on repairing the conveyor-belt tailpiece to find out why 

Deel would not run the scoop. Justice's version of the actions 

and statements leading up to Deel's discharge is as follows: 

Justice began working for DOW on April 19, 1982, and O'Quinn was 

on sick leave at that time. Justice had run a coal drill prior 

to being hired by DOW (Tr. 771). Therefore, Justice was asked 

to run the coal drill which received its hydraulic power from 

the roof-bolting machine normally operated by Deel. Consequently, on his first day at the mine, Justice worked with Deel. DOW 

did not have enough scoop operators when Justice first began 

working there. As a result, when O'Quinn and Deel were both 

present at the mine, O'Quinn and Deel alternated jobs so that 

every other day Deel ran a scoop while O'Quinn operated the roof 

bolter and when O'Quinn ran the scoop, Deel operated the roof 

bolter. Justice was the drill man regardless of whether Deel 

or O'Quinn was the operator of the roof-bolting machine (Tr. 785). 

Justice knew how to run a scoop, but had never used one to haul 

coal in DOW's mine (Tr. 785). 

Deel was hurt about April 22 when he was thrown to the 

front of a scoop while he was riding in a scoop operated by Webb 

Bailey (Tr. 189; 873). Deel returned to the mine to work on 

May 3, 1982 (Exh. L). The mine was closed by Inspector Strength 

on May 5, 1982, and was not released from the withdrawal 9rders 

until May 6, 1982 (Tr. 825; 831). Since Justice had been operating the drill on a rather continual basis, he assumed he would 

be running-the drill on May 7, the day of Deel's discharge. Consequently, Justice spent the time just prior ~o going underground 

sharpening bits for use in the coal drill. Therefore, Justice 

2161 
did not hear Stiltner give any instructions to Deel as to whether 

he was expected to operate a scoop that day, but Justice assumed 

Deel would operate the scoop that day because O'Quinn and he rode 

the mantrip while Deel operated the scoop which pulled the mantrip into the mine (Tr. 792). 

Justice took his bits and went to the roof-bolting machine 

from which he normally drilled. Shortly thereafter Deel pulled 

up to the roof bolter in the scoop and came over to the roof bolter. 

Justice asked Deel what he intended to do and Deel said that he 

was going to run "his" roof bolter. Clayton replied that he assumed that meant that he would have to run the scoop to which Deel 

said "I guess so" (Tr. 772). Clayton felt that since Deel had 

been working for DOW longer than he had, that he had no reason to 

argue with him, but Justice was also uneasy about starting to run 

the scoop without making certain that Stiltner wanted him to change 

jobs (Tr. 794), so Justice got on the scoop which had been parked 

by Deel near the roof bolter and drove it about 120 feet, or two 

breaks, to the tailpiece where Stiltner was working (Tr. 795-796). 

When Justice explained to Stiltner that Deel said he was 

going to operate ·the roof bolter and asked Stiltner if he wanted 

Justice to run the scoop, Stiltner replied by requesting Justice 

to go back to the roof bolter and tell Deel that Stiltner wanted 

Deel to run the scoop and wanted Justice to drill coal. After 

Justice had returned to the roof bolter and had relayed Stiltner's 

message to Deel and had received Deel's retort that Deel was going to run "his" roof bolter and for Stiltner to come in person 

and tell Deel what he wanted him to do, Justice went back to the 

tailpiece and told Stiltner that Deel was insisting on running 

the roof bolter. Stiltner then told Justice to park the scoop 

and go back to the roof bolter and that he would come and talk to 

Deel after he had finished his repairs at the tailpiece (Tr. 773). 

Justice went on foot back to the roof bolter and told Deel 

that Stiltner would be up there and talk to him in a few minutes. 

Justice then sat down and waited for Stiltner to appear. According to Justice, Stiltner came to the roof bolter in a few minutes 

and asked Deel why he wouldn't run the scoop. Deel wanted to 

know what Stiltner meant by that question and Stiltner explained 

that he was asking Deel to run the scoop because he believed that 

Deel was more familiar with the scoop than Justice and that more 

coal could be produced with Deel as the scoop's operator than 

would be produced with Justice as the scoop's operator. Stiltner 

then told Deel that if he was not going to run the scoop, to get 

in the scoop's bucket and Deel got into the bucket (Tr. 773; 799). 

As Justice recalls the events, Stiltner's conversation with 

Deel had been completed before Stiltner turned to O'Quinn to find 

out why O'Quinn was doing nothing. Stiltner ~hen ordered O'Quinn 

to go after an auger barrel on foot. .0' Quinn did not want to 

walk a few breaks to get one, so O'Quinn said he was sick and got 

216f!. 
in the scoop's bucket with Deel and Stiltner started to the outside with both of them. Justice does not know anything more 

about what happened after that (Tr. 773). While Justice said on 

direct examination that he did not hear O'Quinn tell Stiltner 

that Fields had gone for an auger barrel, Justice was recalled 

as a rebuttal witness and stated at that time that O'Quinn did 

ask Stiltner why Fields could not go after an auger barrel on 

the tractor (Tr. 1017). Assuming that Justice's rebuttal testimony is correct, he was still unable to explain how Stiltner 

would have known O'Quinn needed an auger barrel if O'Quinn had 

not told him that he was not drilling because of a lack of an 

auger barrel (Tr. 1Dl9). 

Randy O'Quinn was the other miner present during Justice's 

and Stiltner's conversations with Deel on May 7, 1982. O'Quinn 

testified at the arbitration hearing held on May 28, 1982. 

O'Quinn's testimony at the arbitration hearing supports in nearly every detail Stiltner's and Justice's versions of the events 

leading up to Deel's discharge, but in this proceeding O'Quinn's 

testimony shows that he was trying very hard to support only 

Deel's version of the events of May 7 (Tr. 222-229). During 

cross-examination by DOW's counsel, O'Quinn stated that what he 

said at the arbitration hearing was closer to the time the events 

occurred than his testimony in this proceeding was and would be 

likely to be more correct than his testimony in this proceeding 

which was given on February 15 and 16, 1983 (Tr. 253). Subsequently, the following colloquy occurred (Tr. 271): 

Q Do you think that anything you said at the 

arbitration hearing was wrong? 

A 

say it 

today, 

word. 

No, because that was closer to the time. I'd 

would be more right than what I could tell you 

because that long ago I can't remember every 

I just remember patches. 

In view of the above statement by O'Quinn, I am relying upon his 

testimony in the arbitration hearing for the purpose of determining his version of the events leading up to Deel's discharge. 

According to O'Quinn, Stiltner ordered Deel to get the 

scoop and pull the mantrip into the mine. Deel pulled the mantrip into the mine as ordered and parked the mantrip at its 

accustomed place. Then Deel drove the scoop to the site where 

Justice and O'Quinn were beginning to prepare the roof-bolting 

machine and drill for work. When Deel came close to the roof 

bolter, Justice asked Deel what job he was planning to do and 

Deel replied that he was going to bolt the roof, so Justice got 

on the scoop which Deel had driven to the roof bolter and left. 

After a while, Justice returned and told DeeL that Stiltner 

wanted Deel to run the scoop. Deel told Justice that if Stiltner 

2163 
wanted him to run the scoop, for Stiltner to come up and tell 

Deel that in person. Subsequently, Stiltner came to the roof 

bolter on a scoop and wanted to know what was going on and Deel 

said nothing unusual was going on. Stiltner then asked Deel what 

job he was going to do and Deel said he was going to bolt the 

roof, but Stiltner said "No" to that and stated that he wanted 

Deel to run the scoop. Deel then asked Stiltner if he was going 

to park· the roof bolter and Stiltner replied "No" (Arb. Tr. 100-

101). 

O'Quinn recalls that Stiltner then turned to O'Quinn and 

ordered him to get an auger barrel, but O'Quinn said he was sick 

and would just go to the house. O'Quinn claims that he then got 

his dinner bucket and got into the scoop's bucket after which 

Stiltner asked Deel if he was refusing to run the scoop and Deel 

replied, "No", but Stiltner looked at Deel, according to O'Quinn, 

and told him that he might as well get into the scoop's bucket 

with O'Quinn. Deel got into the scoop's bucket and Stiltner 

started out with both of them, but finally stopped, at Deel's request, so that Deel could talk to the mine committeeman, Kyle 

Turner. Stiltner then told O'Quinn to go back to the roof bolter. 

O'Quinn got out of the scoop and went back to the roof bolter, as 

requested, and did not hear any of the discussion which took 

place after Stiltner stopped the scoop so that Deel could talk 

to Turner (Arb. Tr. 101). 

I have already provided in Finding Nos. 11 through 17, supra, 

the version of the events of May 7, 1982, which is supported by 

the preponderance of the evidence in this proceeding. Even if 

one were to adopt, however, the version of the events of May 7, 

1982, which was elicited from Deel during cross-examination and 

my questioning, DOW was justified in discharging Deel for insubordination. Deel conceded that he had gone to "his" roof bolter 

on May 7, 1982. He found a two-man crew already preparing the 

roof bolter for operation. Prior to his being off for a week, 

he had been running the scoop on alternate days and he claimed 

that he did not mind running the scoop because he knew "how to 

do everything they had there" (Tr. 186). 

Although Deel said he did not mind running the scoop, he 

also stated that Justice did not like to operate the scoop because it "bounced" him around (Tr. 183). If the scoop "bounced" 

Justice around, it would also have bounced Deel around. When it 

came to the desirability of running a scoop as compared with 

operating a roof-bolting machine, Randy O'Quinn stated that operating the roof bolter was the easiest job in the mine and that 

if-running a scoop was as easy as roof bolting, he would have a 

scoop operator's job (Arb. Tr. 109). 

Deel's claim that he had no reason to believe that Stiltner 

wanted him to operate a scoop when he went into the mine on May 7, 

1982, is unconvincing because Deel had previously been alternating 

2164 
between running the roof bolter and the scoop and he knew that 

Justice had sharpened drill bits just before coming underground 

and knew that Justice was planning to operate the drill. Deel 

also knew that O'Quinn and Justice were both at the roof bolter 

before he arrived there. He knew when Justice asked him what he 

was planning to do that day that Justice was planning to run 

the drill and he knew from O'Quinn's presence at the roof bolter 

that O'Quinn was planning to operate the roof bolter because 

O'Quinn had been running the roof bolter when Deel operated the 

scoop and that O'Quinn drove the scoop when Deel o~erated the 

roof bolter (Tr. 792; 872). Deel tried to explain Justice's 

being at the roof bolter by claiming that Justice's dinner bucket 

was carried on the roof bolter and that he thought Justice had 

come there to get something to eat, but they had just arrived on 

the section and no one had done any work yet. 

Deel also claimed that Stiltner was sitting on the only 

scoop in the mine on the morning of May 7 and that there was not 

room on the operator's seat for both him and Stiltner. Deel 

said that when Stiltner told him to run the scoop or get in the 

scoop's bucket, he had no choice but to get into the scoop's 

bucket because Stiltner did not offer to get off the operator's 

seat so that Deel could get on the operator's seat (Tr. 132). 

Deel's actual knowledge of the location of scoops was much greater than he claimed it was because Deel subsequently testified 

that there was another scoop operating in the mine on the morning of May 7 and that they sometimes used three or four scoops 

simultaneously (Tr. 185-186). Additionally, Deel knew that 

Stiltner and Fields had ridden into the mine on the little scoop 

and he certainly knew the difference between the big scoop which 

he had used for pulling the mantrip and the little scoop which 

Stiltner had driven into the mine. Therefore, all he would have 

had to do in response to Stiltner's ultimatum for him to run the 

scoop or get into the bucket of the scoop on which Stiltner was 

sitting would have been to have said that he had decided to run 

the scoop and ask Justice, who was listening to the conversation 

between him and Stiltner, where Justice had left the big scoop. 

Moreover, there was nothing whatsoever to keep Deel from stating 

that he would rather run a scoop than to get into the scoop's 

bucket. He knew that getting into the bucket would be the equivalent of consenting to being discharged. Therefore, he could 

not possibly have increased his risk df being discharged by refusing to get into the scoop's bucket and simultaneously stating 

that he would rather run a scoop than be discharged. Instead of 

assuring Stiltner that he did not mind running a scoop, as he 

claimed at the hearing, he said nothing and got into the scoop's 

bucket to be taken out for discharge. 

References to "his" Roof-Bolting Machine 

There was a discussion at the hearing as to whether Stiltner 

had inconsistently testified about telling Deel to obtain "his" 

2165 
scoop and pull the mantrip or had simply asked Deel to get "the" 

scoop and pull the mantrip (Tr. 863-864), but Deel himself referred to the roof bolter as "his" and "my" roof bolter on at 

least three occasions (Tr. 125; 173; 175). Consequently, there 

is no reason to doubt Stiltner's testimony to the effect that 

Deel had refused to operate the scoop because he did not want 

someone else running "my" roof bolter (Tr. 875). 

On the contrary, there are ample grounds for believing that 

Deel had made up his mind on the morning of May 7 that he was not 

going to do any more alternating between the jobs of scoop operator and roof-bolter operator. He had been successful in getting 

Stiltner to provide him relief on the previous occasion when he 

had refused to perform both the job of running the drill and operating the roof bolter and he was confident that he would be 

able to appeal to Turner, the mine committeeman, again on the way 

out of the mine to be discharged, and Turner would be able, as he 

had on the prior occasion, to persuade Stiltner to put him back 

to work as the operator of the roof bolter which, according to 

O'Quinn, is the easiest job in the mine. 

Supervisor Doing Classified Work 

Another of Deel's motives for insisting on operating "his" 

roof bolter was that Justice had been hired as a section foreman. 

Justice, as a salaried or managerial employee, was apparently 

violating union rules by operating the coal drill which is normally work performed by union employees or hourly workers. That 

issue was a part of Deel's union grievance filed after his discharge on May 7, 1982, but that issue was dropped from the case 

before the arbitrator who upheld Deel's discharge under the Wage 

Agreement (Arb. Tr. 132-133). Since Deel agreed to waive that 

issue at the arbitration hearing, it is certainly inappropriate 

for him to raise that as an issue in this proceeding. 

In any event, it is a fact that there were not enough hourly 

or union employees at the mine on May 7 to operate all the equipment and Stiltner had no choice but to utilize Justice for the 

purpose of operating equipment which is normally operated by 

union employees. Although Deel claimed that he would have been 

allowed to operate the roof bolter if Justice had not been present on May 7, the evidence does not support that contention becausei after Deel was discharged on May 7, Randy O'Quinn was 

assigned to run a scoop and Justice operated a coal drill by using the hydraulic power from another scoop. There were two roofbolting machines in the mine and the other crew operated a roofbolting machine that day, but Deel's roof bolter was not used at 

all (Tr. 801). Obviously, running the scoop was more important 

for producing coal than having O'Quinn operate a second roof 

bolter. 

Therefore, Deel was incorrect in contending that the only 

reason he was asked to run a scoop was that Justice took a job 

2166 
which would otherwise have been assigned to an hourly employee. 

There is additionally no merit to Deel's claim that DOW was improperly using a managerial employee to do an hourly miner's 

work at a time when an hourly miner was available to do the work. 

DOW's contention that it only used managerial employees to do 

union employees' work when absenteeism forced it to do so was 

shown to be true on May 7, 1982 (Tr. 680). 

Requirement To Perform Work Order and Then File' Grievance 

Deel admitted at the arbitration hearing that he is required 

to perform a work order and then to file a grievance if he believes that the order is unreasonable, assuming, of course, that 

the order does not involve a requirement that he work in unsafe 

conditions (Arb. Tr. 96). It would appear that Deel violated 

union rules when he refused to run a scoop on May 7, 1982, because no safety issue was raised in connection with Stiltner's 

request that Deel operate the scoop. 

Deel's Refusal To Ask Stiltner About His Assignment 

Deel conceded that Justice brought him a message to the 

effect that Stiltner wanted Deel to run the scoop on May 7 rather 

than operate the roof bolter (Tr. 172-173; Arb. Tr. 75). Deel 

claimed that he could not rely upon a section foreman's order 

brought to him by another miner because they kid around in the 

mines and that if he were to obey such an order, the other miners 

would have him running all over the place doing things which the 

boss had not actually requested him to do (Tr. 188). Also Deel 

said that if he had gone to the scoop and had started running it 

on the basis of a message from Stiltner brought to him by Justice, 

that he could have been fired for leaving "his" roof bolter at 

the face and going off to do another job (Tr. 174). 

On the other hand, the mine committeeman, Kyle Turner, 

stated that if another miner had brought him a message to the 

effect that his supervisor wanted him to run a scoop instead of 

a roof bolter, that he would have finished installing the bolt 

he was then working on and "* * * would go hunt the foreman" 

(Arb. Tr. 126). Turner is an experienced miner and his answer 

shows that Deel was being unduly obstinate in failing at least 

to check with Stiltner so as to find out for sure what his assignment was for that day. After all, Deel had not started doing any 

work and Stiltner was only 120 feet from the place where Deel's 

roof bolter was situated (Tr. 796). 

As indicated above, there has been no mention by anyone in 

this proceeding that operating the scoop, as requested by Stiltner, would have exposed Deel to any hazardous conditions. Therefore, I cannot find any justification whatsoever for Deel's refusal to operate the scoop when Just~ce brou~ht Stiltner's work 

order to him. At the ve~y least, Deel should have been willing 

2167 
to go 120 feet and ask Stiltner what he wanted him to do.that 

day. As Stiltner appropriately remarked, ''I ain't got all day 

to sit there and beg a man to do his job'' (Tr. 877). 

Final Consideration of Arguments in Deel's Brief 

The attorneys who represented Deel in this proceeding were 

very conscientious and prepared a brief which presents Deel's 

contentions in as favorable a manner as they can possibly be 

argued. Deel's counsel followed the Commission's burden-of-proof 

guidelines as set forth in the Pasula case, supra, in an admirable fashion. Nevertheless, Deel's contentions lose all of their 

validity when one begins to examine in detail the true facts 

which underlie Deel's legal arguments. 

Deel's brief contains a Table of Contents which facilitates 

review of his arguments. It is claimed under Part I that Deel's 

discharge was motivated by his protected activities. Part Aunder the aforesaid heading lists the protected activities in which 

Deel is alleged to have engaged. As I have previously indicated, 

it is a fact that Deel was a safety committeeman for about 32 

calendar days and he also accompanied an MSHA inspector on some 

inspections while he was safety committeeman. Therefore, Deel 

did engage in some protected activities prior to his discharge. 

While Deel's brief does establish that he was engaged in 

some activities which are protected under the Act, Deel's brief 

utterly fails to show that his protected activities had anything 

whatsoever to do with his discharge. It is correct, as Deel argues under Part I(B) of his brief, that DOW was aware of Deel's 

activity as safety committeeman and it is a fact that he only 

held that position for 32 days prior to his discharge. Therefore, Deel is necessarily correct in arguing that his protected 

activity preceded his discharge by only a short period of time. 

The preponderance of the evidence, however, fails to support the 

remaining allegations made under Part I(B) of Deel's brief. As 

I have shown under the headings discussed above, Deel incorrectly 

argues that DOW displayed animus in the face of Deel's protected 

activity. Deel himself, for example, stated that when he was 

first appointed as a safety committeeman, the mine foreman was 

very cooperative and provided Deel with all the supplies and 

equipment he needed to make the mine safe (Tr. 199). As to the 

remaining contentions in Part I(B) of Deel's brief pertaining 

to DOW's alleged animus toward Deel for his protected activities, 

my discussion, supra, of the hauling of powder on the tractor, 

the belt-bridging incident, Deel's alleged refusal to support 

DOW in the simultaneous firing of two shots, and Deel's allegations of disparate treatment have been thoroughly considered 

above under those respective headings and the preponderance of 

the evidence clearly shows that DOW discharged Deel solely for 

his recalcitrance and insubordination and not because he had 

brought a few safety-related problems to DOW's attention. 

2168 
Under Part II of his brief, Deel argues that DOW would not 

have discharged Deel if he had not engaged in protected activity. 

Under Part II(A) of Deel's brief, he argues that he was not 

assigned to operate the scoop before he went into the mine on 

May 7, 1982, the day of his discharge. Even if one agrees with 

Deel's argument that he was not given a direct order to operate 

the scoop for the entire shift before he went into the mine on 

May 7, 1982, the preponderance of the evidence supports the section foreman's contention that Deel knew before going into the 

mine that his section foreman wanted him to operate the scoop on 

that day. I have addressed that contention in great detail in 

my discussion of the "The Actual Discharge" above, and the preponderance of the evidence clearly supports the section foreman's 

contention that Deel knew that his section foreman wanted him to 

operate the scoop before he went into the mine on May 7. Assuming, arguendo, that Deel did not know his section foreman wanted 

him to operate the scoop on May 7 before Deel went into the mine, 

Deel's argument in Part II(A) (1) of his brief cannot be sustained 

because Deel was given a message from his section foreman by 

another miner as to exactly what the section foreman wanted Deel 

to do, but Deel was so determined to ignore his section foreman's 

orders that he refused to go a distance of only 120 feet to ask 

what his section foreman actually wanted him to do that day. 

Moreover, it cannot be successfully argued that Deel did other 

than argue with his section foreman about the assignment even 

after the section foreman personally came to Deel and gave him 

specific orders that he wanted Deel to operate the scoop, instead 

of the roof-bolting machine, on May 7, 1982. These matters are 

all discussed in great detail above under the headings of "The 

Actual Discharge" and the other headings following my discussion 

of the actual discharge. 

The most astounding and utterly unfounded argument in Deel's 

brief is contained under Part II(B) in which he claims that even 

if he had refused to operate the scoop on the day of his discharge, 

DOW still would not have been justified in terminating him. Since 

my prior discussions above of the factual allegations in this proceeding have not specifically dealt with the arguments in Part 

II(B) of Deel's brief, beginning on page 39 of the brief, I shall 

give those contentions some detailed consideration at this time. 

Deel attempts to find support for the aforesaid contention by 

stating that DOW's management has no established policy for determining when a miner will be discharged for refusing to obey a 

work order. Deel also claims that the mine foreman inconsistently 

stated first that an employee was given a warning for the initial 

refusal to obey a work order and was discharged for the second 

offense and later stated that the employee was discharged for the 

first offense. 

An employee's refusal to obey a work order may be done in 

an outright defiant and quarrelsome way or it may be done in such 

2169 
a way that the section foreman looks upon the refusal as an 

aberration in a person's normal willingness to work. For example, 

under the heading of "Deel's Allegations of Disparate Treatment", 

supra, I discussed the fact that O'Quinn would say he was not going to do a particular job and would then almost immediately 

thereafter change his mind and do the very work he had just said 

he was not going to do. Deel's refusal to run the scoop on May 7 

was no~ accompanied by any ameliorating circumstances .. He ignored the previous conditions under which the work force had been 

used which required him to alternate with O'Quinn on running a 

scoop one day and a roof-bolting machine the next. He ignored 

the clear indications that the section foreman expected him to 

run the scoop because Justice and O'Quinn had gone to the roofbolting machine before Deel ever reached that machine after delivering the other men to their assigned working places. Deel 

then ignored a specific message brought by Justice from the section foreman telling Deel that the section foreman wanted him to 

run the scoop. Deel then argued with the section foreman in person about the assignment to operate the scoop. Finally, when 

given the ultimatum that he would have to run the scoop or get 

into the scoop's bucket to be taken out for discharge, Deel said 

nothing and got into the scoop's bucket to be taken outside. 

The aforesaid defiant refusal to perform a work order cannot 

be tolerated by a section foreman if he wants to control the work 

force on which he has to rely for production of coal. Therefore, 

regardless of whether DOW's management has written guidelines or 

a consistent policy of determining when it will discharge employees, Deel's refusal to carry out his section foreman's orders 

on May 7 were accompanied by such blatant defiance of his section 

foreman's instructions that the section foreman was clearly within the bounds of reason in deciding that Deel should be given 

the ultimate punishment of discharge. 

Assuming, arguendo, that there is some merit in Deel's claim 

that he should only have received a warning for his first refusal 

to obey a work order and should not have been discharged until he 

had refused a second time to perform a job assigned to him by his 

foreman, it is a fact that Deel did refuse to perform work on a 

prior occasion as I have noted in the discussion above under the 

heading of "The Aborted Discharge". Deel, of course, argues in 

his brief (pp. 40-41) that DOW cannot take refuge in a claim that 

Deel's refusal to perform the two jobs of bolting and drilling on 

a prior occasion should be counted as a true refusal to perform 

work because, it is argued, that assignment was unfair and the 

fact that the section foreman ultimately did the roof bolting for 

D~el for the remainder of that day shows that Deel was unfairly 

asked to do two different jobs. As I have already pointed out in 

my discussion of the aborted discharge above, Deel was nearly discharged that day for failing to do anything more than drill 10 

holes, requiring 10 minutes of time, within a period of an hour 

2170 
after the miners had been delivered to the working section. 

Moreover, Deel's refusal to do both jobs in anything like areasonable speed exposed the other miners to excessive danger because t~e section foreman, in order to get any work at all out of 

Deel on that day, had to operate a roof-bolting machine for the 

remainder of the shift and therefore had to slight his supervisory 

work. If he had failed to make methane checks or otherwise had 

failed to assure that the miners were using proper safety procedures, an accident could have occurred solely because of Deel's 

obstinate refusal to do two types of work on a day when a full 

crew of miners was not available. 

The aforesaid discussion shows that if Deel was supposed to 

have been given a warning for the first refusal to perform work, 

he had already had that warning when the section foreman almost 

discharged him on the previous occasion. Consequently, his discharge on May 7 occurred after a first warning if that is a prerequisite which should be given any consideration. 

The final argument Deel makes in Part II(B) of his brief 

(p. 41) is that Deel would not have been discharged on May 7 except for his protected activity because other miners had engaged 

in unprotected activity of refusing a work order and had not been 

disciplined by discharge for such unprotected activity. As I 

have clearly shown above under the heading of "Deel's Allegations 

of Disparate Treatment", other miners have not engaged in refusals 

to obey work orders in the defiant and belligerant manner which 

was associated with Deel's refusals to work. If the other miners 

had acted as Deel did, I am confident they would have been discharged just as Deel was. 

The Commission pointed out in the Pasula case, supra, at 

page 2795, that a judge should give some weight to an arbitrator's 

decision if there was congruence between his decision and the 

issues raised in a discrimination case. I have noted in Finding 

No. 18, supra, that the question of Deel's discharge on May 7 was 

the subject of an arbitrator's decision issued on June 8, 1982. 

That decision is pertinent in ruling upon Deel's arguments in 

Part II(B) of his brief because the arbitrator, upon an adequate 

record, discussed Deel's refusal to operate the scoop on May 7 

and found that his discharge was justified. The arbitrator 

pointed out on page 6 of his decision that refusal of an employee 

to comply with an order of his foreman is one of the most serious 

offenses which can be leveled at a subordinate. The arbitrator 

found that Deel had willfully refused an order given by his foreman and that DOW's management was clearly justified in discharging him for that refusal. I agree with the arbitrator's ruling 

and believe that his decision is a further reason for holding 

that Deel would have been discharged solely for his unprotected 

activities even if he had not also engaged in the protected activities of calling some safety probl~ms to DbW's attention. 

2171 
For all of the reasons hereinbefore given, I find that the 

preponderance of the evidence fails to support Deel's contentions 

that he was discharged because of any activities protected under 

section lOS(c) (1) of the Act. For that reason, DOW's motion to 

dismiss is hereinafter granted. 

WHEREFORE, it is ordered: 

The motion to dismiss made by respondent's counsel is 

granted and the complaint filed on September 23, 1982, in Docket 

No. VA 82-62-D is dismissed for failure of complainant to prove 

that a violation of section lOS(c) (1) of the Federal Mine Safety 

and Health Act of 1977 occurred. 

~ e. o!.-Gff! Richard c. SteffeyJI~ Administrative Law Judge 

Distribution: 

Michael A. Genz, Esq., and Barbara A. Samuels, Esq., Client 

Centered Legal Services of Southwest Virginia, Inc., P. O. Box 

147, Castlewood, VA 24224 (Certified Mail) 

Louis Dene, Esq., 102 Court Street, Abingdon, VA 24210 

(Certified Mail) 

yh 

2172 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SOUTHWESTERN ILLINOIS COAL 

CORPORATION, 

Respondent 

Before: Judge Koutras 

ORDER 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 80-216 

A.C. No. 11-00609-03016 

Captain Strip Mine 

On October 31, 1983, the Commission issued its decision 

on the appeal filed in this matter and remanded the case to 

me for the determination of an appropriate civil penalty 

for Citation No. 777767, issued on November 30 CFR 77.1710(g). 

The Commission reversed my decision vacating this citation, 

reinstated and affirmed the violation, and remanded the case 

for an assessment of civil penalty. 

By agreement of the parties, and after consideration 

of the record in this case, including the statutory criteria 

found in Section llO(i) of the Act, a civil penalty assessment 

of $78 is.imposed for the violation in question, and the 

respondent IS ORDERED to pay this amount within thirty (30) 

days of the date of this Order. Upon receipt of payment by 

the petitioner, this case is dismissed. 

~~li:att.~ Administrative Law Judge 

Distribution: 

Brent L. Motchan, Esq., Southwestern Illinois Coal Corp., 

500 N. Broadway, St. Louis, MO 63102 (Certified ~ail) 

.. Miguel Carmona, Esq., U.S. Department of Labor, Office of 

the Solicitor, 230 S .. Dearborn St., Chicago; IL 60604 

(Certified Mail) 

/slk 217 ~.{ 
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, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ex. rel. MICHAEL HOGAN 

and ROBERT VENTURA, 

Complainants 

v. 

EMERALD MINES CORPORATION, 

Respondent 

DECISION 

Docket No. PENN 83-141-D 

Emerald No. 1 Mine 

Appearances: Catherine O. Murphy, Esq., Office of the 

Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Complainants; 

R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 

Pittsburgh, Pennsylvania, for the Respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern a complaint of discrimination 

filed by the Secretary of Labor on behalf of the named 

complainants pursuant to Section 105(c) of the Federal Mine 

Safety and Health Act of 1977. The complaint alleges that 

Mr. Hogan and Mr. Ventura were suspended without pay for five 

days by the respondent on or about December 28, 1982, for 

exercising certain protected safety rights under Section 105(c) (1) 

of the Act. Specifically, the complainants assert that they 

were suspended by mine management for refusing to ride an 

elevator which they believed to be unsafe. The elevator 

is used to transport the working shifts to the underground 

working section. 

A hearing was convened in this matter on August 23-24, 1983,. 

in Washington, Pennsylvania, and the parties appeared and 

participated fully therein. Posthearing proposed findings 

and conclusions, with supporting arguments, were filed 

by the parties and they have been fully considered by me in 

the course of this decision. 

2174 
Issues 

The critical issue presented in this case is whether 

the suspensions meted out by mine management were prompted 

by protected activity under the law. Specifically, the 

crux of the case is whether the refusal by Mr. Hogan and 

Mr. Ventura to ride the elevator in question to their assigned 

work stations on the asserted grounds that it was not safe 

was reasonable and made in good faith. Additional issues 

raised by the parties are identified and disposed of in the 

course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301 et seq. 

2. Sections lOS(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815(c) (1), (2) 

and ( 3) . 

3. Commission Rules, 29 CFR 2700.1, et seq. 

Complainants' Testimony and Evidence 

Michael Hogan testified that he first heard about a 

problem with the elevator during his work shift of December 27, 

1982. Sometime after 5:00 p.m., he heard the shift foreman 

call underground superintendent Morris to advise him that 

the elevator was inoperative. However, shortly thereafter, 

the problem was taken care of and the elevator was operating, 

and he left the underground section by means of the elevator 

without any problem, and heard nothing further about any problems. 

He next returned to the mine at approximately 3:30 p.m., 

on December 28, and he went to the bathhouse to change into 

his work clothes. At this time he learned from general bathhouse conversation that the crew on the evening shift of 

December 27 had encountered some problems with the elevator, 

and that the day shift on December 28th had delayed entering 

the mine until approximately 10:00 a.m., because the elevator 

had some problems and some maintenance people were working 

on it. He also spoke with someone on the day shift who advised 

him that the elevator doors would not open (Tr. 29-34). 

Mr. Hogan testified that after he dressed and left the 

lamp room on December 28th, he encountered several miners 

from the day shift who had just alighted from the elevator 

at the end of their shift, and he identified them as Pat Buttermore, 

2175 
Charlie Cooper, Jerry Kessler, and Don Dowling. They informed 

him that the elevator had malfunctioned; that it slowed down 

as it came up the shaft, and that they then felt it drop and 

their knees buckled. He described the miners as being "shaken 

up" and "highly agitated", and described two of them as being 

"actually white" (Tr. 34-35). Mr. Hogan stated that he then 

returned to the lamproom for a cigarette, and he spoke with 

Terry Limely, another miner who had just alighted from the 

elevator. Mr. Limely told him "you are crazy if you get on 

that thing, it is really messed up, it's really bad". When 

he questioned Mr. Limely further, Mr. Limely informed him 

that the elevator had dropped, started to fall, stopped 

suddenly, and that his knees buckled (Tr. 36). 

After assessing the situation further, and since it 

appeared that there would be no "collective refusal" to ride 

the elevator, Mr. Hogan decided to speak with shift foreman 

Denny Smith. He advised Mr. Smith that he did not believe 

the elevator was safe to ride and that he was invoking his 

individual safety rights in refusing to ~ide the elevatdr, 

but that he was available for other work (Tr. 39). Mr. Smith 

asked him to stand aside while the other employees were loaded 

on the elevator, and by this time Mr. Ventura had also invoked 

his safety rights and refused to ride the elevator. At that 

point in time, mine foreman Allen Hager arrived on the scene 

and Mr. Hogan advised him that he would not ride the elevator, 

and Mr. Hager responded "there's nothing wrong with it" (Tr. 41). 

When asked to explain why he believed the elevator was 

not safe at the time of his refusal to ride it, Mr. Hogan 

replied as follows (Tr. 42-43): 

Q. Why did you believe that the elevator 

was not safe at that time, Mr. Hogan? 

A. Well, I felt very sure, for myself, 

that all the incidents that had happened 

in the previous twenty-four hours or so, 

and then the most recent incident, at 

approximately ten to four, so I felt that 

if this had been a problem for all this 

time, that there should have been something 

done about it, it shouldn't still be malfunctioning like that. 

Q. In your opinion, was it still defective 

at that time? 

A. Absolutely. 

2176 
Q. What did you figure could happen, if you 

got on the elevator, based on what information 

you had? 

A. Well, I thought it could, if it would fall, 

I thought perhaps it could get stuck, somewhere 

along the way you could be stuck in it, and the 

one thing that Terry Limely had said about 

it, buckling his knees, I thought perhaps about 

being injured in it. 

Q. What kind of injuries did you feel that you 

could sustain? 

A. Well, I felt that I could get killed, you 

know, anything from being highly shook up 

to being killed, or anything in between, you 

know what I mean. 

Q. Mr. Hogan, what reason did you give to 

Mr. Hager, as to why you were afraid to ride 

the elevator on that day? 

A. Well, I told him that I didn't think it 

was safe, you know. 

Mr. Hogan stated that at the time he informed ~r. Hager 

that he would not ride the elevator, he had no knowledge as to what 

steps had been taken to ascertain the reason for the elevator 

"dropping". He did know, however, that the elevator had 

been "test run" up and down several times after the complaints 

by the day shift crew, but he had no knowledge as to whether 

or not any repairs or maintenance had been performed. He 

was also aware of the fact that several groups of miners from 

his shift went underground on the elevator after the complaints 

were made (Tr. 44). Mr. Hogan also stated that he asked 

maintenance foreman Jackie Smith "what was wrong with the 

elevator", and that Mr. Smith replied that he did not know 

and could not state whether it was safe (Tr. 45). 

Mr. Hogan testified that after the initial conversation 

with Mr. Hager, Mr. Hager instructed Mr. Denny Smith to 

"find something for us to do" (Tr. 45). He later spoke 

with.Mr. Hager by phone while he (Hogan) was still in the 

elevator area, and he again informed Mr. Hager that he 

would not ride the elevator because he didn't feel it was 

safe, and that "I was using my safety rights" (Tr. 46). 

Mr. Hogan confirmed that Mr. Hager offered to operate the 

elevator manually, but he still refused to ride it, and he 

explained the refusal as follows (Tr. 47): 
Q. Did you understand what he meant by 

the manual motor? 

A. Yes, I understood what he meant, yes, 

he asked us if we would ride on the elevator, 

if it was being run manually, and I told 

him that I didn't feel that in my opinion, 

it didn't make a difference whether it was run 

on m_anual ·or automatic, they seemed to have 

an obvious problem, and unless they knew the 

source of the problem, I don't think that 

they.could say it would be safer one way or the 

other. 

Mr. Hogan confirmed that he and Mr. Ventura were then 

summoned to Mr. Hager's office, and Mr. Hager asked if they 

were willing to ride into the mine on the slope car. Mr. Hogan 

stated that he asked Mr. Hager how this would "leave us in 

regard to having two fresh air escapeways from the mine", 

and Mr. Hager did not reply and instructed Denny Smith to 

find something for Mr. Hogan and Mr. Ventura to do. Mr. Hogan 

and Mr. Ventura left the office, but were immediately called 

in again and Mr. Hager informed them that he was withdrawing 

his offer to have them transported into the mine by means 

of the slope car. Mr. Hager also informed them that depending 

on the outcome of an investigation by federal and state agencies, 

they could be subject to disciplinary action, up to and 

including discharge, and Mr. Hogan inforned Mr. Hager that 

"I understood the situation" (Tr. 50). 

Mr. Hogan stated that after leaving Mr. Hager's office, 

he and Mr. Ventura spent the rest of the shift working around 

the bathhouse (Tr. 50). At approximately 6:00 p.m., the elevator 

manufacturer's representative arrived, and shortly thereafter, 

state inspector Monohan and federal inspector Conrad arrived. 

At approximately 8:15 p.m., Mr. Hogan, Mr. Ventura, and management 

and union representatives were summoned to a meeting in Mr. Hager's 

office. Mr. Hager asked the elevator representative whether 

it was safe and he indicated that "in his opinion, the elevator 

was safe, and none of the safety features had been jumpered 

out". Mr. Hogan stated that he "nodded in the affirmative" 

to this statement, and that Mr. Conrad indicated that he was 

no expert on elevators, but was simply present "to see that 

there were no violations of law", and that after speaking 

with the elevator representative, he simply wanted to assure 

Mr. Hogan and Mr. Ventura that it "was safe to run" (Tr. 52). 

Although Mr. Hogan stated that Mr. Monohan concurred with 

Mr. Conrad, Mr. Hogan said that Conrad made the statement that 

"he wouldn't rode [sic] the God damn thing either" (Tr. 54). 

2178 
Mr. Hogan testified that at the conclusion of the meeting 

in Mr. Hager's office, Mr. Hager informed him that he and 

Mr. Ventura were suspended, and that he stated as follows 

(Tr. 55): 

* * * * he said that it was the company's 

opinion that Bob and I had interfered 

with their right to direct the work force 

at four o'clock, by not boarding the elevator, 

and we had acted arbitrarily and capriciously, 

and not in good faith, in not boarding the 

elevator, and that we were thereby suspended 

for five days, beginning at about eight fortyfive, which the time was, and not to return 

to work, until Wednesday, January the 5th. 

Mr. Hogan confirmed that he became angry after being informed 

that he was suspended, and that at this time he was available 

to work underground and would have ridden the elevator 

(Tr. 56). Mr. Hogan also confirmed that he stated to Mr. Hager 

that "they ~ad a pretty good guy here up until this point, 

now I wasn't sure, but watch out now, or something to that 

effect". Mr. Hogan explained that he was upset because 

he did not believe he would be suspended, and he confirmed 

that since the episode he has had no suspensions or other 

actions taken against him (Tr. 57). 

Mr. Hogan stated that after the oral suspension, he met 

further with Mr. Hager during the initial grievance stage 

of his case, and he identified exhibit G-1, as a copy of the 

written notice of suspension which he received on January 4, 

and he confirmed a notation on the notice which states 

"revised as agreed in the meeting of December 31, 1982" 

(Tr. 58). Mr. Hogan explained the notation, and he also 

confirmed that he had been involved in a prior exercise of 

his safety rights in the summer of 1981, and was assigned 

other work but was not suspended (Tr. 60-62). Mr. Hogan 

also,_confirmed _that __ he has made safety _complaints in the past, 

and that they are generally taken care of (Tr. 62). 

On cross-examination, Mr. Hogan confirmed that he did 

not know what the elevator problem was on December 27, but 

by the end of the shift the elevator was repaired, and that 

any repairs were made within ten or fifteen minutes after 

he heard that the elevator was inoperative. Mr. Hogan also 

confirmed that when he spoke with Jackie Smith, Allen Hager, 

and Denny Smith on December 28, he did not ask them about 

the condition of the elevator on December 27 (Tr. 65). 

Mr. Hogan stated that he spoke with no one on the midnight 

shift, and that other than the fact that the elevator was 

not working, he had no knowledge of the specific problem. 

2179 
With regard to any "elevator drop", Mr. Hogan conceded 

that he did not mention this to Dennis Smith or Jackie Smith, 

but he believed he mentioned it to Mr. Hager, but was not 

certain (Tr. 67-68). 

Mr. Hogan confirmed that on the afternoon of December 28, 

after the "elevator dropping incident", there were some tests 

made on the el~vator and it was his understanding that local 

union president Tom Rebottini rode the elevator during the tests_ 

(Tr. 68). Mr. Hogan also confirmed that one or two elevator 

loads of men on the evening shift went underground before he 

approached Dennis Smith to tell him he would refuse to ride it, 

and at these times Mr. Hogan saw no evidence of any elevator 

malfunctioning (Tr. 69). 

Mr. Hogan confirmed that during the taking of his deposition 

he did indicate that to a small degree, he has a fear of being 

enclosed in small spaces, and in response to a question as 

to whether he had a certain fear or riding elevators, he 

replied "I would call it more of a healthy respect for them" 

(Tr. 7 3) . 

Mr. Hogan stated that prior to the time he refused to 

ride the elevator, he was aware that the elevator "had been 

run up and down", and that after the "elevator stopping 

incident", he did not ask Dennis or Jackie Smith or Mr. Hager 

whether they had checked the elevator to determine what was 

wrong with it (Tr. 77). 

In response to bench questions, Mr. Hogan confirmed that 

he was not on the elevator during the alleged "dropping 

incident", and his knowledge of this event is from what others 

told him (Tr. 79-80). He recounted what he had heard as 

follows (Tr. 81-83}: 

JUDGE KOUTRAS: While you were back there, 

wai~ing to come to your shift, you had 

conversations with people, that were coming off 

of the day shift? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: During these conversations, 

you learned about the problems with the elevator? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Now, you indicated that you talked 

about all these things that had happened, on 

the elevator, did you actually sit down and talk 

with Mr. Butterr,1ore, and Mr. Dowlrng, and have 

2.180 
any detailed discussions with them about 

the events that transpired on the elevator, 

while they were coming out, the knees 

buckling, the fears and all that, before you 

went to work, or did you find this all out, 

after all this happened? 

THE WITNESS: I spoke with them, within a 

minute of the time they come out from the 

elevator that dropped. 

JUDGE KOUTRAS: And they said what? 

THE WITNESS: They said that it had come up, 

started to drop, and then fell, and the one in 

particular, said his knees buckled, and they 

were saying they were scared. 

JUDGE KOUTRAS: Okay. 

THE WITNESS: And the one individual screamed. 

JUDGE KOUTRAS: Who was that? 

THE WITNESS: I don't know, they said somebody 

on the elevator screamed. 

JUDGE KOUTRAS: Did they tell you how far the 

elevator dropped? 

THE WITNESS: Each had their own opinion of that, 

it's very difficult to tell, but you can't say. 

JUDGE KOUTRAS: Any length of time, how did 

they describe the dropping to you? 

THE WITNESS: Well, one individual said, he 

thought it fell about ten feet, and another one, 

some of their estimates ran much higher than that, 

to the possibility that it could have been a 

hundred feet, or something like that. 

JUDGE KOUTRAS: Once the drop had stopped, how 

did they come out, how did the elevator proceed, 

how did they take care of the problem, when I say 

they, whoever was there in charge, did they have 

somebody there on the elevator that was in charge 

of the crew? 

THE WITNESS: Well, at the time of the incident 

Jackie Smith was in the penthouse, which is above 

2181 
ground, above the elevator, and he took over 

manual control of the elevator at that point, 

and brought it up. 

JUDGE KOUTRAS: How did he know to bring it up? 

THE WITNESS~ I suppose he knew some way that 

something had malfunctioned. 

JUDGE KOUTRAS: How did he know that, was this 

elevator coming up and down automatically, do 

you know? 

THE WITNESS: As far as I know, it was running 

on automatic at that point, yes, but see, because 

they were having the problems, there were someone 

where the elevator comes up here, there's an area 

above the elevator, right above the shaft, to 

other controls and circuits and stuff, where I 

guess Jackie Smith was in that penthouse, what 

they call the penthouse, at the time it malfunctioned, 

and he just in some manner, knew that it was 

malfunctioning, and he brought it up manually. 

Mr. Hogan indicated that Jackie Smith told him that he did 

not know what was wrong with the elevator, and Mr. Hogan believed 

that the only time the elevator would be operated on a manual 

mode would be in the event of a motor malfunction (Tr. 87, 89). 

Regardless of which mode it operated on, he did not believe 

that management had sufficient time to check the malfunction 

and conduct proper tests (Tr. 89). He conceded that the prior 

elevator problems had been taken care of the day before his 

work refusal, but he insisted that "some problem apparently 

kept repeating itself" (Tr. 90). He also believed that it 

"was possible" that the prior malfunction still prevailed, 

and when asked whether he would have still refused to ride 

the elevator if no one had mentioned that it had dropped, he 

answered "I don't know, that's hypothetical" (Tr. 91). 

Mr. Hogan confirmed that safety committeeman Willis 

and Union President Rebottini were both present when he refused 

to ride the elevator, and he indicated that they worked the 

same .shift. He stated further that Mr. Rebottini· worked 

underground and rode the elevator, but that Mr. Willis was 

assigned to surface work (Tr. 93). Mr. Hogan also confirmed 

that approximately a year or so earlier he had refused to 

ride the same elevator, but that this prior incident did not 

influence his decision in this case (Tr. 98). 
Mr. Hogan stated that prior to the instant case he had 

no knowledge that the elevator had ever "dropped" in the past. 

He confirmed that the elevator shaft is approximately 600 

feet high, and that on prior occasions when miners refused 

to ride the elevator they were taken into the mine by means 

of the slope shaft (Tr. 101). He also indicated that he 

was unaware of any other miners being suspended or fired for 

refusing to ride the elevator (Tr. 102). He stated that the 

elevator was installed sometime in 1976 or 1977, and that it 

has been the topic of past discussions and meetings between 

the union and mine management (Tr. 104). 

Robert Ventura testified that he is employed by the 

respondent as a mechanic, and that at the time of his suspension 

he worked as a utility man. He stated that on December 27, 1982, 

he reached his working place by means of the elevator which 

took his crew underground on the second shift, 4:00 p.m. to 

12:00 p.m. Mr. Ventura stated further that at approximately 

5:30 p.m. that day he was informed by his foreman that the 

elevator was inoperative and that if it were not repaired 

within a half hour the crew had the option of leaving the mine. 

Since the elevator was the main escapeway, Mr. Ventura indicated 

that he would leave and requested that he be allowed to do so. 

However, since the elevator was repaired, he did not do so. 

He subsequently took the elevator out at the end of his shift 

at approximately 11:45 p.m. One of his fellow shift workers 

told him that as he was boarding the elevator to leave, it 

raised up 8 to 12 inches and he tripped while getting on 

(Tr. 109-111). However, Mr. Ventura did not report this and 

went home. 

Mr. Ventura testified that he reported for work on 

December 28, 1982, and while in the bathhouse he had some 

discussions with other miners concerning the elevator, but 

he did not know any of the specific details. While in the 

lamphouse he said one of the miners from the day shift, 

Jerry Kessler, advised him that the elevator had stopped and 

then dropped about fifty feet while he was riding it up the 

shaft at the end of his work shift. Mr. Ventura then proceeded 

to the elevator and asked his safety committeeman Willis if the 

elevator was safe, but he could not state whether Mr. Willis 

responded. Mr. Ventura then spoke with section foreman 

Russ Clark, and Mr. Clark referred him to foreman Denny Smith. 

Mr. Smith advised him that the elevator was safe and referred 

him to Mr. Hager, but Mr. Ventura did not discuss his safety 

rights with Mr. Smith (Tr. 111-117). 

Mr. Ventura confirmed that Mr. Hager offered to operate 

the elevator on the manual mode, but he (Ventura) stated that 

2183 
he was afraid to ride it for fear that it might drop again. 

He said Mr. Smith advised him that the elevator representative 

had been summoned to the mine, but that Mr. Smith could not 

tell him what was wrong with the elevator. During this time, 

all of the other crew members had gone underground on the elevator, 

and Mr. Ventura confirmed that this made no difference to him 

as he was exercising his own personal safety rights in refusing 

to ride the elevator (Tr. 117-120). 

Mr. Ventura confirmed the meeting in Mr. Hager's office 

and he also confirmed that Mr. Hager offered to take him 

into the mine by means of the slope car. However, after Mr. Hogan 

raised the escape route question, Mr. Hager said nothing further 

and he and Mr. Hogan were assigned other work (Tr. 121). Mr. Hager 

subsequently retracted his of fer to take them in by means of the 

slope car (Tr. 122). Mr. Ventura corroborated the fact that 

another meeting was held with Mr. Hager and that he was subsequently 

suspended (Tr. 123-128). 

On cross-examination ~r. Ventura confirmed that at the time 

of his refusal to ride the elevator he believed that "there was something wrong with the elevator", and he confirmed that he knew 

nothing about its features (Tr. 133). He also confirmed that 

Mr. Kessler told him it dropped fifty feet and that this 

scared him, but that no one was injured. He conceded that 

since no one was hurt after the asserted fifty foot drop, 

Mr. Kessler may have exaggerated the extent of the drop (Tr. 134). 

Mr. Ventura also confirmed that he asked no one else on the 

elevator about the drop, and he stated that he did tell Mr. Smith 

and Mr. Hager what he heard about the elevator dropping fifty 

feet (Tr. 135). 

Mr. Ventura confirmed that he knew that the reported 

elevator malfunction of December 27th had been repaired, but 

that he did not know all of the specifics of the problem 

(Tr. 135). He also stated that it was possible that he would 

not have refused to ride the elevator had Mr. Kessler not 

mentioned the drop (Tr. 136). Mr. Ventura indicated that he 

was not aware that test runs had been made on the elevator 

on December 28th prior to his work shift, and he was unaware 

that Mr. Rebottini had ridden it (Tr. 139). Mr. Ventura 

stated that he mentioned the elevator dropping to Dennis Smith, 

Jackie Smith and Alan Hager, but that none of them could 

assure him that the elevator was safe (Tr. 141). 

In response to further questions concerning what he 

told mine management about the elevator dropping, Mr. Ventura 

stated as follows (Tr. 149-151): 

2184 
.JUDGE KOUTRAS: Well, then after you spoke 

to Willis, when was the first time that you had 

any contact with any management representative? 

THE WITNESS: Right after I talked to Mr. Willis. 

JUDGE KOUTRAS: Who did you talk to then? 

THE WITNESS: My shift foreman. 

JUDGE KOUTRAS: Which is? 

THE WITNESS: My section foreman, Mr. Clark. 

JUDGE KOUTRAS: You told Mr. Clark, that you were 

reluctant to get on the elevator, and Clark did 

what? 

THE WITNESS: He referred me to the shift foreman, 

Mr. Smith. 

JUDGE KOUTRAS: Who was Mr. Smith, and you told 

him the .same thing? 

THE WITNESS: Yeah. 

JUDGE KOUTRAS: Now, in both those conversations 

did you specifically tell either Mr. Clark, or 

Mr. Smith, that someone had told you that the elevator 

had dropped fifty feet? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: You did? 

THE WITNESS: Yeah, well, I didn't say fifty feet, 

but that it had dropped. 

JUDGE KOUTRAS: Did you tell them who had told you 

that? 

THE WITNESS: No. 

JUDGE KOUTRAS: Then what happened, when did 

Mr. Hager get in on the act? 

THE WITNESS: Mr. Smith referred me to Mr. Hager. 

JUDGE KOUTRAS: Was Mr. Hager there physically? 

2185 
THE WITNESS: Yes. 

JUDGE KOUTRAS: And you told him the same thing? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Did you specifically tell Mr. Hager, 

that you had heard from someone from the previous 

shift, that the elevator had dropped some distance? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: What was his reaction to that? 

THE WITNESS: He couldn't answer why, I asked him 

if he was aware of the elevator dropping, and he 

says, no. 

JUDGE KOUTRAS: Do you have any idea how many 

people were on the elevator, when riding it up with 

Mr. Kessler? 

THE WIT~ESS: I would say maybe eight people, I 

don't know, for sure. 

JUDGE KOUTRAS: About eight, and you heard no one 

else say anything about the elevator dropping, 

how far it dropped or anything? 

THE WITNESS: Not at the time, you know it was a 

situation, where I was coming out to get my lamp, 

and Jerry was there, and other people were starting 

to leave, I was running late. 

Martin Willis, stated that he is employed by the respondent 

as a motorman, and that he is vice-president of local union 

2258 and also serves a safety committeeman. He confirmed that 

he went to the mine on December 28, 1982, at 9:00 a.m., 

to attend a safety meeting with mine management and that he 

was scheduled to work that day on the 4:00 p.m. to 12:00 midnight 

shift. While at the bathhouse someone advised hi~ that there was 

a problem with the elevator, and he spoke with the general mine 

foreman Allen Hager about the matter and Mr. Hager advised him 

that."they were working on it". Mr. Willis then proceeded 

to the elevator area and someone from the work crew which had 

just finished a shift told him that "the elevator came up, stopped, 

felt like it dropped, and then it came up on inspection speed" 

(Tr. 165-169, 171). When asked who told him this, he identified 

the crew members as Jerry Kessler and Wayne Bara, and he 

indicated that Mr. Kessler appeared scared and frightened 

(Tr. 17 2) . 

2186 
Mr. Willis confirmed that while speaking with several 

miners waiting to go underground on the four to midnight 

shift, Jackie Smith informed him that he did not know what 

was wrong with the elevator and that he could not state whether 

it was safe. Mr. Willis did not speak with Mr. Hogan or 

Mr. Ventura at this time, but he did learn that they informed 

foreman Denny Smith that they were invoking their individual 

safety rights and would not ride the elevator underground. 

Mr. Willis then accompanied Mr. Hogan and Mr. Ventura to 

Mr. Hager's office for a meeting, and Mr. Ventura and Mr. Hogan 

were subsequently assigned other work. Later, a federal and 

state inspector arrived on the scene but did not examine 

the elevator. The elevator company mechanic changed some 

electrical contactor points and determined that the elevator 

safety features had not been "jumpered out" (Tr. 178). Later, 

Mr. Hager informed him that Mr. Hogan and Mr. Ventura would 

be sus~ended for five days (Tr. 179). Mr. Willis confirmed 

that federal inspector Conrad stated that he found no 

violations of federal law and that as far as he was concerned 

the elevator was safe. However, state inspector Monahan 

indicated that he would not ride the elevator (Tr. 180). 

On cross-examination, Mr. Willis stated that when he spoke 

with Mr. Kessler he did not tell him how far the elevator 

had dropped, and that Mr. Bara characterized the elevator 

as being "f ..... up'' (Tr. 183). He also confirTied that while 

Mr. Bara did not specifically state that the elevator had 

dropped, he did indicate that it "felt like it'' (Tr. 184). 

Mr. Willis also confirmed that Jackie Smith told him he could 

not find the elevator problem (Tr. 184). 

In response to further questions, Hr. Willis confirmed 

that after the inspectors and the elevator representative 

were called, they all "gave the elevator a clean bill of health", 

and while no one knew what the specific problem was, the changing 

of the contactor points took care of it and he learned that 

if dirt gets into the contactor tips they have a tendency to 

stick (Tr. 190). 

Mr. Willis stated that he did not believe that mine 

management acted unreasonably by calling in the elevator 

mechanic and the state and federal inspectors, but he believed 

that .Mr. Hogan and Mr. Ventura should not have been suspended, 

and he expected management to just let them go back to work 

after they determined that the elevator was safe (Tr. 193). 

Mr. Willis confirmed that he had ridden the elevator many 

times and he explained how it operates on the "manual" mode, 

and he also indicated that "anytime that elevator malfunctions 

it is a headache for both management and union, it causes a lot 

of concern" (Tr. 192, 194-195). 

218'( 
Jerry Kessler, mechanic, testified that on December 28, 1982, 

he reported to work on the day shift, 8:00 a.m. to 4:00 p.m., 

and the usual procedure is to ride the elevator underground. 

However, on this particular morning the elevator was not 

working and his crew had to wait until 10:00 a.m. to go to 

work. He was told that there was a problem with the elevator 

and that it had been repaired, but he was not aware of the 

specific problem. His crew used the elevator and he was 

not aware of any other problems with it during his shift. 

However, after his work shift ended and while coming up on 

the elevator a problem developed, and he described it as 

follows(Tr. 205~207): 

A. Well, when we got on the elevator, we 

started up, the elevator got approximately 

one hundred feet from the top, the cage 

stopped, it fell, how far, I don't know, 

it stopped, it started back up, and it stopped 

a third time, then that's when Wally Petros 

called out to see what was the matter, and he 

said, that they said it would be going in just 

a second. · 

Q. Who is Wally Petros, can you tell the Judge? 

A. He's one of my mechanic bosses. 

Q. Did you hear him make the phone call? 

A. He made the phone call, I didn't hear the 

conversation. 

Q. What did he say to you after he made that 

call? 

A. He said that it would be fixed in just a ~inute, 

that it would be coming up, and then it started 

up on inspection speed, slow speed. 

Q. Can you describe for the Judge, in as much 

detail as you can, as much as you can recall, 

how long the drop, and how long the drop lasted, 

when you were in the elevator, can you give us an 

idea of the distance? 

A. It was difficult to tell, because you were 

enclosed in the cage, but when it stopped, it fell, 

the second stop buckled my knees, because we 

were on a downfall, I had time enough to make up 

my mind, I was prepared to hit the bottom, and I 

thought that if I could possibly time it and jump, 

that I wouldn't get my legs broke, whatever time 

that was, I don't know. 

2188 
Q~ How did the other people on the elevator 

react, what did you see? 

A. Everybody was shook up, everybody was 

scared, Hap Buttermore screamed, Bob Richie 

pinched a gentleman's arm, or grabbed his arm, 

to get something to hold on to, everybody was 

shook up. 

Q. How about when you got off the elevator, 

what happened when you finally got to the top? 

A. Well, as soon as it got to the top, the 

door opened, and everybody rushed for the landing. 

Mr. Kessler testified that after getting off the elevator 

he mentioned the elevator episode to Denny Smith, but he assumed 

that Mr. Smith did not hear him (Tr. 208). Mr. Kessler 

spoke to no other management people, but did speak with 

Mr. Willis and Mr. Ventura. Mr. Kessler stated that "I 

told Bob Ventura that something was wrong with the cage, and 

told him to go out and find out what was wrong" (Tr. 209). 

Mr. Kessler confirmed that he returned to work the next day 

and the elevator had been fixed and the midnight and second 

shift had taken it underground (Tr. 210). After observing 

several elevator trips, he too rode it underground (Tr. 211). 

On cross-examination, in response to a question as to 

whether he told Mr. Hogan or Mr. Ventura a specific distance 

that the elevator fell, Mr. Kessler replied as follows (Tr. 212): 

Q. Did you tell him how far it fell? 

A. I would imagine six to eight feet if I made 

a guess, I don't know. 

Q. So you didn't tell him that it had fallen 

either Mr. Ventura, or Mr. Hogan, that it had 

fallen fifty feet? 

A. No, sir, I didn't tell it had fallen fifty 

feet . 

. Mr. Kessler explained further that he did not tell Denny Smith 

how far the elevator had dropped, and that no one else from 

mine management was present when he got off the elevator 

(Tr. 214). When shown a copy of his prior statement to the 

MSHA investigator indicating that the elevator dropped 10 

to 15 feet, Mr. Ventura was asked to reconcile that statement 

with his testimony that it only dropped six to eight feet. 

He replied "you are enclosed in the cage, I can't tell you 

how far the cage dropped" (Tr. 223) 

2189 
Do~ Dowling, mechanic trainee, testified that he was 

scheduled to work the 8:00 a.m. to 4:00 p.m. shift on 

December 28, 1982, and that upon reporting to work that day 

he did proceed immediately underground by means of the elevator 

as was his usual practice because "there was trouble with 

the elevator" (Tr. 226). He went underground on the elevator 

at 10:10 a.m. that day after being advised by his foreman 

that the elevator had been fixed (Tr. 227). When asked 

whether anything unusual happened when he came out of the 

mine on the elevator at the end of his shift, he replied as 

follows (Tr. 227-229): 

A. Well, when we got on the elevator, the 

doors weren't exactly operating correctly. 

Q. What were they doing? 

A. The doors were slow to close, and then finally 

someone pushed it shut. And we started up, and 

I don't know how far up, it seemed like it was 

fairly close towards the top, than it was the bottom, 

and it hung up, stayed there for a couple of seconds, 

and then fell, and then locked, felt like it was 

pretty solid down, and then while we were falling, 

one guy screamed and Bob Richie grabbed a hold of 

my arm, pretty tight, it was hurting me, and then 

it locked up pretty solid, it felt just like it 

hit something. 

It wasn't the ground or anything, it was llke 

something caught a hold, it felt solid after that, 

a couple of jerks, and then, while we were waiting 

there, Wally Petros called outside, and I don't 

know who he called, but a few minutes after he 

hung up the phone, it jerked a couple of times, 

and then started up. 

Q. Did you hear what Wally Petros said that day? 

A. He was asking about the elevator itself, and 

I didn't hear no response, and he j·1st kept saying, 

yeah, yeah, after that. 

Q. What did he say, to the rest of you in the 

elevator? 

A. He said, it would be fixed in a little bit, 

we would be going up, and the next thing you know, 

we were going up on inspection speed, ~eal slow. 

Q. Can you describe for us, how you felt when 

that happened, Mr. Dowling? 

2190 
A~ I was scared, very scared. 

Q. What were you scared of, afraid of? 

A. Hitting the bottom, actually, when it fell, 

then after we locked up solid, and while we were 

standing there, one guy popped the top off of it, 

and looked up, and we could see the top of the 

shaft, it was still a fairly good distance, and 

I was scared, being locked there, myself. 

Mr. Dowling testified that after he got off the elevator 

he made no comments to any of the other miners, and since 

he did not know Mr. Hogan or Mr. Ventura he did not speak 

with them (Tr. 230). He returned to work the next day and 

rode the elevator and "it worked fine" (Tr. 231). 

On cross-examination, Mr. Dowling confirmed that after 

he got off the elevator he did not approach mine management, 

but he was sure that someone else had informed them as to 

what happened (Tr. 233). 

Charles w. Cooper, continuous miner operator, testified 

that he worked the 8:00 a.m. to 4:00 p.m. shift at the mine 

on December 28, ~982, and he did not enter the mine until 

approximately 9:45 a.m. because the elevator was not working 

properly (Tr. 238). When asked whether anything unusual 

happened at the end of his shift, he replied as follows 

(Tr. 239-241) : 

A. Well, we started up in the elevator, 

it came up, oh, a little over half way, and 

then the elevator stopped, and when i.t stopped, 

and then it seemed to drop right back down, 

it dropped oh, around eight to ten feet, roughly, 

and we couldn't judge the distance it fell, 

and then the elevator stopped again, and like 

locked up, and when it locked up, everybody 

jumped down you know, like, you were on a gum 

band, just being bounced, and you could feel 

the elevator, like shaking up and down. 

Q. Could you see the other people move up and 

down, like you just described? 

A. Yes, all of them, the majority of them did. 

Q. Okay. What else happened, what did the other 

employees do now? 

A. Everybody was standing dazed like, you know, 

looking at each other, and saying what happened, 

and stuff like this. 

2191 
Q. What did you think had happened? 

A. I thought we were going down. 

Q. By going down, you mean you thought you were 

going to hit the bottom? 

A. I thought we were going to the bottom. 

Q. Were you afraid? 

A. Yeah. 

Q. What happened next? 

A. Well, then, Wally Petros, the foreman, got 

on the phone, and called out to somebody outside 

or something. 

Q. Could you hear what he said? 

A. No~ offhand, I couldn't hear what he said. 

Q. What happened, after he called outside? 

A. The elevator, it was a few minutes, and then 

the elevator started, and it started coming up, 

when it got to the top, it went up past where 

it usually stops at the door, about eight, ten 

inches above, and then somebody or something, 

it. recycled or something, and it came back down 

a couple of inches above the normal position, 

the door opened. 

Mr. Cooper stated that after he got off the elevator 

he spoke with Mr. Willis and advised him that "there's something 

wrong with that elevator". However, he did not see or speak 

with Mr. Hogan or Mr. Ventura (Tr. 243). ~r. Cooper confirmed 

that he returned to work the next day, December 29, and was 

told that the elevator had been repaired, that some relays 

were replaced, and he rode it underground without incident 

and there has been no reoccurrence of any elevator "dropping" 

(Tr. _244) . 

On cross-examination, Mr. Cooper stated that he could 

not recall seeing the wall of the elevator shaft from the 

inside of the elevator when it dropped, and he confirmed that 

he estimated that it fell eight to ten feet "by the way I 

felt" (Tr. 245). He estimated that 18 to 19 miners were 

on the elevator during the incident in question (Tr. 246). 

2192 
Mark A. Sunyak, shuttle car operator, testified that 

he worked the 4:00 p.m. to 12:00 midnight shift on December 28, 

1982. After dressing, he proceeded to the hallway by the 

elevator to take the first trip underground. When the elevator 

doors opened, no one from the crew seemed to be boarding 

and someone commented that there was a problem with the elevator. 

He could recall no specifics, he did not ask the shift foreman 

if there was a problem, and he could recall no conversations 

as to whether the elevator had problems (Tr. 252). As the 

crew began getting on, he hesitated but then got on after 

the shift foreman began telling everyone to get on. He rode 

the elevator down without incident, and no one said anything 

further about it (Tr. 254). 

On cross-examination, Mr. Sunyak stated that his initial 

reluctance to board the elevator was prompted by his doubts 

as to whether anything was wrong with it. However, since he 

knew none of the facts he rode it. He confirmed that prior 

to December 28, 1982, he had exercised his safety rights in 

the past with regard to certain imminent danger situations 

but was never disciplined since management recognized the 

dangers and took corrective action (Tr. 258). 

Mr. Sunyak stated that before he got on the elevator 

on December 28, he was not aware that employees from the 

preceding shift had reported a "drop" while they were coming 

out. He confirmed that he worked on the same shift with 

Mr. Hogan and Mr. Ventura, but did not know at that time 

that they had refused to ride the elevator (Tr. 259-260). 

He also indicated as follows (Tr. 267): 

JUDGE KOUTRAS: Did you hear anything from the 

previous shift coming up? 

THE WITNESS: No, I had no knowledge of anything. 

JUDGE KOUTRAS: The only knowledge that you 

had, was the night before, there was a problem? 

THE WITNESS: Yeah, but that was more or less 

unusual, if that would be the right word, but 

just little things like that happen every now 

and then, but I was probably more concerned 

about getting home, than anything else. 

JUDGE KOUTRAS: But while you were waiting 

to ride the elevator down, you knew that 

something was up, because things weren't moving 

along, you surmised that there were some problems? 

2193 
THE WITNESS: Yeah, right. 

JUDGE KOUTRAS: Yet, you didn't exercise your 

safety rights, and refuse to go? 

THE WITNESS: Not knowing full well, what all 

was involved, I didn't really feel that I 

could, not knowing any specifics on it. 

Thomas Barrett, respondent's employee relations representative, 

confirmed that he was at the mine on December 28, 1982, and was 

aware of the elevator problem. He identified exhibit G-3 as 

a memorandum he prepared from his own personal notes relating 

to the events of December 28, and he confirmed that he was 

present when Mr. Hager informed Mr. Willis that he had 

changed his mind about offering to transport Mr. Hogan and 

Mr. Ventura into the mine through the slope (Tr. 273-276). 

Respondent's Testimony and Evidence 

John F. Lusky, testified that he is employed by the 

Schindler Haughton Elevator Company as an elevator mechanic, 

and he described his duties and experience. He confirmed 

that he received a service call on the afternoon of December 28, 

1982, and he went to the mine in response to information that 

there was a "problem with the elevator not automatically 

returning to the top, and that it had made a stop. It was 

traveling up, and it made a stop" (Tr. 288). Mr. Lusky 

identified exhibit R-1 as a copy of a service record indicating 

the work which he performed on the elevator in question, and 

he estimated that he arrived at the mine at 6:00 p.m. He 

confirmed that he found no malfunction with the elevator while 

he was there, but did.indicate that he visually inspected 

the elevator, adjusted some switch contacts, and he changed 

a relay contact since he believed it had something to do with 

returning the car to the top. While he indicated that it was 

possible that the contactor was related to the elevator 

stopping, he did not believe this was likely because there 

is very little current passing through the contactor (Tr. 292). 

He also explained the adjustments he made to certain switches, 

and confirmed that the work he performed on the elevator did 

not relate to or affect the safety features of the elevator. 

He also confirmed that the safety features were not by-passed 

or "jumpered out", and he could not determine what caused 

the elevator to stop (Tr. 293). 

Mr. Lusky stated that during the time he was at the 

mine the elevator was safe. Based on the work he performed 

on the elevator, he was of the opinion that it was safe 

earlier in the day. He confirmed that the elevator will 

not run if the doors do not close properly, and in his 

opinion the fact that there is a problem wi£h doors would 

2194 
not affect the other safety features because they are on 

separate circuits (Tr. 295). He described the safety features of the elevator, and he stated that no one told him 

that the elevator had dropped. He also indicated that had 

the elevator dropped "the safeties would have set," and he 

saw no evidence that this happened (Tr. 298). 

On cross-examination and in response to further questions, 

Mr. Lusky explained the functions of the elevator relays 

and contactors, and he confirmed that he had not previously 

done any work on the elevator in question. He confirmed 

that he spoke with no one who had ridden the elevator and 

that he considered his service call to be "routine." He 

also indicated that any prior service calls would be a matter 

of record, but he could not recall exactly when the elevator 

was first installed. He confirmed that an elevator could 

stop fer a number of reasons, and conceded that such a stop 

would be an "unusual event" (Tr. 311). 

Willard D. Smith, shift foreman, testified that on 

December 27, 1982, when he rode the elevator down at 5:30 the 

doors would not shut and the elevator would not go up. He 

reported this to the maintenance foreman, and the elevator 

was operated manually until the problem could be taken care 

of. The elevator was repaired, but he did not know what work 

was done on it. He reported to work for the second shift 

on December 28, and prepared to load the elevator to send 

the crews underground. He was not present when the elevator 

stopped while coming up and he spoke to no one who was on 

that elevator. He stated that "I had heard through the maintenance that they had trouble with the elevator," and he was 

present when Mr. Rebottini came up on the elevator and he 

heard him state "it worked fine." Mr. Smith did not speak 

with Mr. Rebottini, and after he got off the elevator the 

evening shift began loading on the elevator (Tr. 324). 

Mr. Smith stated that no one told him that the elevator 

had stopped and he heard no one waiting to load on his shift 

state that they thought the elevator was unsafe. Three 

elevator loads went underground while he was there and the 

elevator did not malfunction. Mr. Smith described his 

conversations with Mr. Hogan and Mr. Ventura as follows 

(Tr. 325-327): 

Q. Now, there came a point when Ventura 

and Hogan approached you? 

A. Yes, they did. 

Q. What did they say to you. 

2195 
A. The only thing I remember Bob saying, Ventura 

saying, was, "Do you guarantee me , can you 

guarantee me that elevator is safe?" 

Q. And what was your response to that? 

A. I said, "The elevator is running fine, but I 

can't guarantee anything." 

Q. Did you, at that point, feel that it was 

safe to ride? 

A. Yes, sir. 

Q. Did Mr. Ventura and Mr. Hogan raise the fact 

that they had heard that the elevator had dropped? 

A. I don't recall it. No. 

Q. Had you heard from anybody else, at that point, 

that the elevator had dropped? 

A. No. I didn't. 

Q. Did either Ventura or Hogan raise to you the 

issue of the previous malfunctions on the elevator 

as making it unsafe? 

A. No, they didn't. 

* * * 

Q. Yes, assuming that Ventura and Hogan came up 

to you and said, "We heard that it dropped fifty 

to a hundred feet" would you have behaved differently? 

A. No. 

Q. And that's because you had heard that it was 

running properly at that point? 

A. Fine, Right. 

Q. Did you have any further conversation with Ventura 

and Hogan? 

A. Not after that, no sir. 

2196 
Q. What did you tell them to do? 

A. If I recall right, I said, "Well " 

Allen Hager, our mine foreman was there. We 

all went into the office, and meanwhile, as 

soon as they arrived in the office, I stepped 

inside, and I had a phone call, and I had to 

leave. And that's all that I --. What happened 

in the office, I don't recall. I wasn't in there. 

Q. Were you involved in assigning them other work? 

A. Yes, sir. 

Q. Did you ride that elevator that day? 

A. Yes, sir. 

On cross-examination, Mr. Smith stated that he surmised 

something had been wrong with the elevator when he saw 

Mr. Rebottini "test ride" it, but he was sure it was fine 

when Mr. Rebottini got off. Mr. Smith confirmed that approximately 

80 miners rode the elevator into the mine after 4:00 p.m. 

on December 28, and he also confirmed that he was present by 

~.the elevator doors when the 8:00 a.m. to 4:00 p.m. shift came 

·out (Tr. 332). He denied speaking with Charles Cooper, 

Donald Dowling, or Patrick Buttermore, and deni~d hearing 

any comments that there was anything wrong with the elevator 

(Tr. 334). He also denied hearing any comments that the 

elevator had dropped or that men were screaming when it did 

(Tr. 335-336) . 

In response to further questions, Mr. Smith indicated 

that Mr. Hogan .and Mr. Ventura had served on his crew for 

two years and that during this period they had never asked 

him to "guarantee" their safety, and he conceded that this 

was an "unusual occurrence". He conceded that Mr. Ventura 

and Mr. Hogan were concerned when they refused to ride the 

elevator, and when asked about this concern on their part, 

he replied "I guess they were reluctant because of the situation 

that happened on the day shift. That's the only reason I 

can say" (Tr. 339). When asked what he would have done had 

he been told that the elevator stopped or dropped, Mr. Smith 

replied "if the maintenance people that was checking the 

elevator told me it was safe and okay to operate, then I 

would have expected them to go to work" (Tr. 340). He explained 

further at Tr. 341: 

JUDGE KOUTRAS: But, as far as guaranteeing anyone's safety, you took the position that you 

couldn't do that~ 

2197 
T~E WITNESS: I could not. 

JUDGE KOUTRAS: So, for all you know, even though 

they said it was fine, it could very well have 

been, once they got on, something could happen, 

some unforseen thing, or something. 

THE WITNESS: It could have malfunctioned. 

JUDGE KOUTRAS: Is that the context in which you 

made the statement that you can't guarantee their 

safety? 

THE WITNESS: Right. I could have put them on it, 

and the doors may have malfunctioned, anytime. 

JUDGE KOUTRAS: But, in any event, once you got 

on and went down, you went down without any problem? 

THE WITNESS: Fine. 

JUDGE KOU~RAS: And, how about coming back at the 

end of the shift? 

THE WITNESS: Yes. It worked fine. To my knowledge, 

no one had reported anything. 

Mr. Smith confirmed that he had no similar problems with 

Mr. Hogan or Mr. Ventura in the past and that he considered 

them to be good conscientious employees. When asked whether 

he would have ridden the elevator given the same circumstances, 

Mr. Smith replied as follows (Tr. 342): 

JUDGE KOUTRAS: Let me ask you this hypothetical. 

It might be tough to answer, but put yourself in 

their position, what would you have done? 

THE WITNESS: I would have rode the elevator. 

JUDGE KOUTRAS: For what reason? 

THE WITNESS: Because everyone else rode ·it, and I 

would have felt that I would have rode it too. 

I would've felt that it was safe once it was checked 

out, to ride. 

Wayne S. Bair, maintenance foreman, testified that he 

worked the day shift on December 28, 1982, and was on the 

elevator when it stopped while coming up the shaft. He indicated 

that the elevator stopped near the top and it did not drop. He 

described the sensation when it stopped as ~you got light on 

2198 
your feet". He heard no one scream and saw no one grab 

anyone's arm, and he stated that "everyone kind of got quiet" 

(Tr. 347). He confirmed that foreman Walter Petros called 

out on the elevator phone and that after the call the elevator 

came up. After he got off the elevator he encountered Mr. Willis 

and they went to Mr. Hager's office and Mr. Bair told Mr. Hager 

that "the elevator did mess up". Since he did not believe that 

it dropped, he said nothing to Mr. Hager about any reported 

drop. 

Mr. Bair stated that at no time did he hear anyone 

state that the elevator had dropped. He confirmed that a 

week prior to the hearing Mr. Kessler reQarked that he thought 

the elevator had dropped and while Mr. Bair disagreed with 

him he told Mr. Kessler "to tell them the way he really feels" 

(Tr. 349). Mr. Bair also confirmed that he did not speak 

with Mr. Hogan or Mr. Ventura on the day in question. 

In response to further questions, Mr. Bair stated that 

when the elevator stopped he felt "a little light'', but that 

his knees did not buckle and his feet never left the floor 

(Tr. 350). He indicated that "I think some people had some 

pretty big eyes, ... but outside of that everything was 

pretty quiet right after that, until they made the 

telephone call" (Tr. 353). He said that he would have ridden 

the elevator again "once it was checked". 

Adren A. Whitehair, maintenance clerk, testified that 

while he was not directly involved in the repair of the elevator 

on December 28, 1983, he was aware of the problems that day. 

He confirmed that a Haughton elevator representative and surface 

electrician Scott Kramer had performed some work on the elevator 

on the morning of December 28, and that no other problems 

developed until late in the afternoon. He received a call 

from the bottom of the elevator which indicated that the 

doors would open and close but that the elevator would not 

work properly. He contacted Jackie Smith in the shop, and 

Mr. Smith and shop mechanic Jin Howard checked the elevator, 

and they "recycled" it by turning the power on and off. They 

then tested it by "two dry runs" and it worked properly. 

However, ten to fifteen minutes later the doors malfunctioned 

and Mr. Smith recycled it a second time, and after testing 

it he indicated that it was working (Tr. 358). 

Mr. Whitehair testified that after the first elevator 

malfunctions were taken care of he received a call that the 

elevator had stopped. Mr. Petros advised him that it stopped 

approximately 100 feet from the top of the shaft and he said 

nothing about any drop. Mr. Whitehair then went to the penthouse, 

and Jackie Smith was checking the contactors. The elevator 

219D 
was tested, and after several test runs, Jackie Smith advised 

him that the elevator was operating properly. Mr. Whitehair 

later heard some conversations regarding the elevator drop, 

but he was not present when Mr. Hogan and Mr. Ventura initially 

spoke with Mr. Hager. However, he was present at a subsequent 

meeting when Mr. Willis informed Mr. Hager that they should 

not be expected to be on an elevator which was not safe and 

which purportedly dropped (Tr. 362). 

In response to further questions, Mr. Whitehair stated 

that if he had been told that the elevator had dropped he 

would not permit anyone to ride it. He characterized a "drop" 

as the "free-falling of an elevator", and the distance would 

not make any difference. When asked how he would account for 

such differences of opinions as to the purported drop of 

the elevator, he replied "That's hard to say, but I will say 

that when an elevator stops when its traveling at speed, 

that you will get light-footed, of course" (Tr. 366). 

Jackie T. Smith, maintenance foreman, testified that 

his work experience includes some five years of inspections 

of the elevator in question. He identified exhibit R-2 

as a copy of an inspection form dated December 28, 1982, 

for the elevator in question, and he confirmed that it was 

executed by mechanic Scott Kramer. Mr. Smith explained all 

of the required inspection steps listed on the form, and he 

explained the safety features of the elevator, and he confirmed 

that operating it on a manual speed does not result in any 

loss of safety (Tr. 371-379). 

Mr. Smith confirmed that he was present on the morning of 

December 28, 1982, when work was done on the elevator during 

the day shift. He stated that he received a call at 3:05 p.m. 

advising him that the elevator was stuck on the bottom. He 

checked the switches, ascertained that the safety features 

were operative, and after recycling the power and makinq 

some test runs the elevator operated properly. Shortly 

thereafter he was again informed that the elevator doors would 

not function properly, and since they couldn't close the 

elevator would not run. He recycled the power again and 

the elevator worked properly. Shortly after this, the elevator 

stopped and he could see it from his vantage point in the 

penthouse. As soon as the elevator stopped, the brakes set 

and he observed no slippage. He then turned it on the manual 

mode and Mr. Petros called him. Mr. Smith said that he informed 

Mr. -Petros that "We're going to bring you up Manual mode" 

(Tr. 3 8 3) . 

Mr. Smith stated that he immediately brought the elevator 

up on manual mode to avoid "waiting time" while he recycled 

the power. Had there been any malfunction ~f the safety 

2200 
features he would not have been able to move the elevator 

at all. After bringing the elevator to the top, he checked 

out the contactors and "test ran" the elevator at least four 

times, but he could not find out why it had malfunctioned. 

However, it was his opinion that the elevator was safe to 

operate. He later encountered Mr. Hogan and Mr. Ventura and 

they asked if he had found the problem. Mr. Smith responded 

that he had found nothing wrong with the elevator, and in 

response to a question as to whether it was safe to ride, 

Mr. Smith stated that he responded "it was the safest piece 

of equipment in the mine" (Tr. 386). Mr. Smith could not 

state whether Mr. Hogan or Mr. Ventura said anything to him 

about the elevator dropping. 

Mr. Smith stated that he was present when the Haughton 

elevator representative arrived to check out the elevator, 

and he confirmed that some contactors were changed but that 

the mechanic could not specifically identify the malfunction 

that caused the elevator to stop (Tr. 388). 

On cross-examination, Mr. Smith stated that he did not 

speak to any of the miners who were on the elevator when it 

stopped. He identified a copy of his previous statement given 

to an MSHA special investigator, exhibit G-4, and confirmed 

that his statement indicated that he told Mr. Hogan and 

Mr. Ventura that he ''didn't know what the problem was". When 

asked whether there was a difference in telling them that 

"there's no problem'', as opposed to telling them that he 

"didn't know what the problem was", he replied "I'd say that's 

pretty close to the same thing" (Tr. 395). 

In response to further questions, Mr. Smith stated that 

from his position in the penthouse at the time the elevator 

stopped he would have been able to observe any drop. While 

he could not see the actual cage, he could observe the cables 

and would have seen any slippage of the elevator motor or 

head frame. He confirmed that he was standing at the penthouse 

by the elevator braking device when the motor stopped and 

he heard the brakes set, and had the elevator dropped he 

would clearly have seen the cable drop (Tr. 404). When asked 

to explain why some of the miners described the stop as a 

drop, he replied "I've been on it when it stopped before, and 

it g~ves you a sensation of rising and then falling down, 

gravity" (Tr. 404). He also confirmed that from his position 

he could hear no shouts or screams from inside the elevator 

cage. 

James S. Conrad, Jr., MSHA Federal Mine Inspector, 

testified that he was familiar with the safety features required 

2201 
for elevators in underground mines. He confirmed that he 

was called to the mine at approximately 5:00 p.m. on 

December 28, 1982, by Mr. Hager, the general mine foreman, 

and that he was asked to come to the mine "to help settle 

a dispute in relation to the elevator, whether or not it was 

safe to operate" (Tr. 408). After arriving at the mine, 

Mr. Conrad indicated that he met with elevator mechanic 

John Lusky who advised him that none of the safety devices 

were "jumpered out". Mr. Lusky also advised him that the 

elevator was safe to operate, and Inspector Conrad confirmed 

that he issued no citations or violations (Tr. 411). 

Allen E. Hager, General Mine Foreman, testified that he 

was aware of the fact that on December 27 and 28, 1982, the 

elevator in question was experiencing problems. There was 

a problem with the doors on December 27, and it was taken care 

of. The problems early in the day on December 28,were also 

with the doors, and the midnight shift came out of the mine 

by means of the slope, and this was because the elevator 

representative was trying to find out what was wrong with 

the elevator (Tr. 425). The decision to call in the mechanic 

had nothing to with the safety of the elevator because the 

elevator could have been used and any malfunctions had nothing 

to do with its safe operation (Tr. 426). 

Mr. Hager confirmed that on the morning of December 28, 

the malfunctioning elevator doors had been repaired, but 

another malfunction occurred at approximately 3:00 p.m. that 

day, and this was again connected with the doors. He later 

learned that the elevator stopped as it was coming up with 

a load of miners. When he was informed of this incident, he 

proceeded to the elevator landing, and learned that Mr. Smith 

had run some tests and he asked Mr. Smith if anything was 

malfunctioning and he responded "no" (Tr. 427). Mr. Hager 

then remained while the evening shift rode the elevator down, 

and prior to 4:00 p.m. no one complained to him concerning 

the safety of the elevator (Tr. 428). 

Mr. Hager stated that he first learned that Mr. Hogan 

and Mr. Ventura refused to ride the elevator after the day 

shift had "caged out" and the majority of the afternoon 

shift had "caged in". Mr. Hogan, Mr. Ventura, and Mr. Denny Smith 

"confronted him" on the elevator landing and informed him 

of the fact that Mr. Hogan and Mr. Ventura were exercising 

their individual safety rights because they believed the 

elevator was unsafe to ride (Tr. 429). Mr. Hager stated 

that he offered to "cage them down on in the manual mode" 

and explained to them that he believed the elevator was safe 

to ride. His precise words were "there's nothing wfong with 

the elevator. It's safe to ride" (Tr. 430). He stated that 

they still persisted in invoking their individual safety rights 

and that they said nothing about the elevator dro~ping 

(Tr. 430). 

2202 
Mr. Hager confirmed that he met with Mr. Hogan and 

Mr. Ventura in his office after their refusal to ride the 

elevator and that he repeated his offer to cage them in 

manually, and also repeated his view that the elevator was 

safe to ride (Tr. 431). Prior to this meeting he (Hager) 

had spoken with Jackie Smith and was informed that the elevator 

was operating properly and that he had found nothing wrong 

with it. Mr. Hager also confirmed that he had initially 

offered to transport Mr. Hogan and Mr. Ventura into the 

mine by means of the slope, but subsequently retracted 

that offer. He retracted the offer after he gave thought to 

the fact that by making the offer in the first place he would 

be placed in a position of saying there was something wrong 

with the elevator, and as far as he was concerned this was 

not the case (Tr. 432). 

Mr. Hager stated that he sum..~oned the federal and state inspectors 

to the mine to determine the safety of the elevator because this 

is the procedure dictated by the labor-management contract, 

exhibit R-3 (Tr. 433-435). He also called in the elevator 

representative, and Mr. Hager stated that there was no doubt 

in his mind as to the safety of the elevator (Tr. 436-437). 

He confirmed that during his meetings with Mr. Hogan and 

Mr. Ventura concerning their refusal to ride the elevator 

no information was forthcoming concerning the purported 

elevator dropping or the fact that people on the elevator had 

screamed, grabbed other people's arms, or that legs had 

buckled (Tr. 437). 

Mr. Hager confirmed that he met with Mr. Willis, 

Mr. Hogan, and Mr. Ventura and informed them collectively 

that he was suspending Mr. Hogan and Mr. Ventura for their 

refusal to ride the elevator. He further confirmed that the 

suspensions were made in accordance with the contract which 

authorizes such suspensions if it is determined that the 

proper state and federal inspection officials confirm that 

the work conditions on which the refusals are based did not 

constitute violations. Further, it was his view that Mr. Hogan 

and Mr. Ventura did not act in good faith because the elevator 

was operating properly at the time of their refusal to ride 

it and that approximately 160 miners caged in and out of the 

mine on the very same elevator at the same time as the 

work. refusal (Tr. 441-442). When asked what he would 

do if he had been told that the elevator dropped 50 to 100 

feet, Hr. Hager responded as follows (Tr. 445): 

A. Well, I'd investigate the incident with 

the people that allegedly made the statement~, and 

if they were sincere in saying they fell that distance, 

I'd have no alternative but to shut the elevator 

down until it was inspected thorobghly. 

2203 
On cross-examination, Mr. Hager reiterated that he may 

have heard about the elevator dropping, but the first time 

he heard this would have been after 4:00 p.m. on December 28, 

1982. He also confirmed that he had no knowledge as to the 

specific causes of elevator malfunctions at the time he made 

the offer to take Mr. Hogan and Mr. Ventura down on the 

elevator by manual mode (Tr. 447). He was aware of the test 

runs and had no knowledge of any additional malfunctions at 

the time this offer was made, and he was present when 

Mr. Rebottini got off the elevator. Mr. Hager confirmed that 

while he did not draft the suspension notices given to Mr. Hogan 

and Mr. Ventura, exhibits G-1 and G-2, he signed them (Tr. 450). 

He confirmed that Mr. Hogan had on one previous occasion 

exercised his individual safety rights in connection with 

the elevator, but he was not disciplined and was given alternative 

work (Tr. 454). 

In response to further questions, Mr. Hager denied that 

Mr. Hogan or Mr. Ventura ever apprised him of any statements 

made by miners on the elevator that the elevator had dropped 

any distance, that their knees buckled, that someone grabbed 

another, or that anyone screamed (Tr. 460-461). If these 

assertions had been communicated to him he would have shut the 

elevator down and conducted a thorough investigation (Tr. 461). 

Walter A. Petros was called as the Court's witness, 

and he confirmed that he is employed by the respondent as a 

maintenance foreman. He confirmed that he was on the elevator 

in question when it stopped on December 28, 1982, and that 

he spoke with Jackie Smith over the telephone from the elevator. 

Mr. Petros stated that after the elevator stopped he heard 

no one screaming, and he described the demeanor of the miners 

on the elevator as follows (Tr. 474-475): 

Well, I would say, just like everybody else, 

it was a shock at first, you know, because 

just like going in any other elevator that comes 

up to the floor, it sort of, you know, your 

stomach sort of feels uneasy to start with, 

and then it just settles back down when you come 

to a pretty fast stop. But, I know myself, it's 

happened two or three times that when you're 

going down somebody'll accidentally hit the 

stop button. And it does the same thing. It 

gives you a jolt. And as soon as it did that, 

you know, like I said, everybody was probably 

scared at first, but as soon as it did that, and 

it did it, you realized what happened, or I did. 

And then I went over to find out what, you know, 

had caused it. 

2204 
Mr. Petros stated that in his opinion the elevator 

did not drop, and he indicated that when it came up the shaft 

and stopped there was spring tension on the cables and that 

''this will give you a little up and down movement" (Tr. 475) · 

When asked whether he detected any panic on the elevator, 

he replied as follows (?r~ 476): 

Not right . You know. I don't know. 

Like I said, I was trying to get to the phone 

and, I.mean, I didn't actually pay any attention 

to what everybody was saying. But, some people 

are more susceptible to panic than others. So, 

you know, I mean --. I think, what happened is 

when it did stop and then I got on the phone and 

talked to Jackie and it started back up, I don't 

really think there was time for --, you know, 

if it would have set there for maybe 10 or 15 

minutes, then you might have got the people into 

a little panic situation. 

Mr. Petros confirmed that after he got off the elevator 

he went to the bathhouse but did not speak with Mr. Hogan 

or Mr. Ventura, and he remembered speaking to no one else, 

nor did he remember observing anyone talk to any management 

people (Tr. 477). 

Findings and Conclusions 

The critical issue in this case is whether the refusal 

by Mr. Hogan and Mr. Ventura to ride the elevator underground 

to their work stations because they believed it was not safe 

is protected by Section 105(c) of the Act. Although Mr. Hogan 

and Mr. Ventura were assigned other work after the refusal, 

since the elevator was the normal means for transporting 

them underground to their assigned duty stations, their 

refusal to ride the elevator constituted a work refusal. 

Refusal to perform work is protected under Section 105(c) (1) 

if it results from a good faith belief that to go ahead with 

the assigned work would expose the miner to a safety hazard, 

and if the belief is a reasonable one. Secretary of Labor, 

ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2 BNA MSHC 1001 (October 1980), rev'd on other grounds, sub 

nom Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd 

Cir. 1981); Secretary of Labor ex rel. Robinette v. United 

Castle Coal Co., 3 FMSHRC 802, 2 BNA MSHC 1213 (April 1981); 

Bradley v. Belva Coal Co., 4 FMSHRC 982 (June 1982). Further, 

the reason for the work refusal must be communicated to the 

mine operator. Secretary.of Labor ex rel. Dunmire and Estle 

v. Northern Coal Co., 4 FMSHRC 126 (February 1982). 

2205 
In Secretary of Labor ex rel. Bruce Edward Pratt v. 

River Hurricane Coal Company, Inc., 5 FMSHRC 1529 (September 

1983), the Commission relied on its prior decisions in 

Robinette, supra,and Haro v. Magma Copper Co., 4 FMSHRC 

1935, 1944 (November 1982), and rejected River Hurricane's 

argument that any standard used to assess the legitimacy 

of a miner's work refusal must be an objective one supported 

by ascertainable evidence .. The Commission followed its 

previously adopted standard that the miner's honest perception 

of a hazard be "a reasonable one under the circumstances." 

The Commission also rejected a suggestion that it articulate 

a standard as to how severe a hazard must be in order to trigger 

a miner's right to refuse to work, and opted to rely on the 

"gradual development of the law in the cases contested before 

us." 

In the Pratt case, the Commission considered the miner's 

perception of the hazards involved when he refused to fight 

a battery fire and refused to agree to attempt to extinguish 

future fires under similar circumstances. The Commission 

found that Pratt feared an explosion of the batteries in 

question would throw shrapnel and acid over him and might 

kill him, and they affirmed the Judge's finding that Pratt 

reasonably believed in a serious risk of injury from an 

exploding battery. Citing Bush v. Union Carbide Corp., 5 

FMSHRC 993, 998 (June 1983), the Commission held that once 

a reasonable good faith fear in a hazard is expressed by a 

miner, the operator has an obligation to address the perceived 

danger, 5 FMSHRC at 1534. 

After review of the circumstances surrounding Pratt's 

work refusal, the Commission found that the mine operator's 

explanation or attempt to address his fears did not include 

specific information or support as to why fighting the battery 

fires may not have been as dangerous as Pratt believed. The 

Commission affirmed the Judge's finding that the operator 

violated Section 105(c) of the Act by discharging Pratt for 

his refusal to perform a task still reasonably believed 

by him to be dangerous. 

The facts and circumstances surrounding the work refusal 

in the Pratt case are different from those presented in the 

instant case. In addition, it seems clear to me that contrary 

to the position taken by the mine operator in Pratt, the 

operator in the case at hand took positive and affirmative 

steps to address the concerns articulated by Mr. Hogan and 

Mr. Ventura, and my reasons for this conclusion follow below. 

Mr. Ventura and Mr. Hogan were not on the elevator at 

the time of the "dropping" incident. They learned of the 

incident through passing conversations with,others. The 

2206 
testimony concerning the purported dropping of the elevator 

is conflicting. Mr. Hogan testified that the miners he 

spoke with had different opinions, and that the purported 

dropping distance ranged from ten to 100 feet. Mr. Ventura 

claimed that Mr. Kessler informed him that the elevator 

stopped and then dropped about 50 feet. However, Mr. Ventura 

conceded that since no one was injured, Mr. Kessler may have 

exaggerated the extent of the purported drop. Mr. Ventura 

also testified that he believed eight miners may have been 

on the elevator .with Mr. Kessler, but heard no comments. 

from anyone else indicating that the elevator dropped. 

Mr. Kessler denied that he told Mr. Ventura that the 

elevator dropped 50 feet. He then testified that he may 

have said it fell six to eight feet, and when asked to 

reconcile his prior signed statement to the ~SHA investigator 

that it dropped 10 to 15 feet, Mr. Kessler stated that since 

he was enclosed in the cage "I can't tell you how far the 

cage dropped." 

Mechanic trainee Don Dowling and continuous miner 

operator Charles Cooper, who were also on the elevator, 

believed that the elevator rose, stopped, fell, and then 

stopped again. Mr. Dowling did not state how far it fell, 

and while Mr. Cooper said it may have fallen eight to 10 

feet, he also said "we couldn't judge the distance it fell." 

Mr. Dowling stated that after he got off the elevator, 

he did not speak with Mr. Hogan or Mr. Ventura because he 

did not know them. He also stated that he said nothing 

about the incident to mine management. He returned to work 

the next day, rode the elevator, and he indicated that "it 

worked fine." 

Mr. Cooper stated that after he got off the elevator, 

he spoke with safety committeeman Willis, but simply told 

him "there's something wrong with the elevator." However, 

Mr. Cooper said that he did not see or speak with Mr. Hogan 

or Mr. Ventura at that time. Mr. Cooper returned to work 

the next day and rode the elevator without incident. 

Shuttle car operator Mark Sunyak, who worked the same 

shift as Mr. Hogan and Mr. Ventura on December 28, testified 

that he rode the elevator down on the first trip and that he 

heard no one from the preceding shift mention anything about 

the elevator dropping. 

Shift foreman Dennis Smith loaded three trips on the 

elevator during Mr. Hogan's and Mr. Ventura's shift, and the 

220t( 
elevator did not malfunction. He heard no statements from 

the prior shift indicating that the elevator had dropped. 

Maintenance Foreman Wayne Bair was on the elevator 

when it stopped, and he stated that it did not drop. 

Maintenance Foreman Walter Petros was on the elevator when 

it stopped, and he stated that it did not drop. Maintenance 

Foreman Jackie T. Smith was at the elevator controls when 

it stopped. He observed nothing in the cable mechanism 

which would lead him to conclude that the elevator dropped. 

Mr. Hogan admitted that before telling Dennis Smith 

that he refused to ride the elevator, he was aware that 

several elevator trips were made underground with other crew 

members and that he observed no evidence of any elevator 

malfunction. Mr. Hogan also conceded that after the asserted 

elevator dropping incident, he did not ask Dennis Smith, 

Jackie Smith, or Alan Hager whether they had checked the 

elevator to determine what was wrong with it. 

At no time during his direct testimony did Mr. Hogan 

ever indicate that he specifically informed anyone in mine 

management about the purported elevator dropping prior to, or 

at the time of, his work refusal. On cross-examination, 

Mr. Hogan conceded that he did not mention the purported 

elevator dropping to Dennis Smith or Jackie Smith. As for 

Mr. Hager, Mr. Hogan testified that he "believed" he mentioned 

it to Mr. Hager, but was not certain. 

Mr. Ventura testified that he mentioned the elevator 

dropping to Dennis Smith, Jackie Smith, Alan Hager, and his 

section foreman Clark. When asked whether he specifically 

mentioned to Mr. Smith and Mr. Clark that someone had told 

him that the elevator dropped fifty feet, Mr. Ventura replied 

"yes." He then testified"* *well, I didn't say fifty feet, 

but that it had dropped." He also indicated that he did 

not identify the person who had told him about the drop to 

Mr. Hager, and that Mr. Hager advised him that he was not 

aware that the elevator had dropped. 

Respondent's testimony and evidence establishes that 

after the complainants informed Dennis Smith and Alan Hager 

that they were exercising their individual safety rights 

in refusing to ride the elevator, both Mr. Hager and Mr. Smith 

assured them that the elevator was safe. Mr. Hager testified 

that had he been informed that the elevator had dropped 50 

or 100 feet, he would have shut it down as an im..~inent danger 

and prohibited anyone from riding it. While it is true 

that miners are not necessarily required to accept mine management's 

evaluation of a perceived hazard, on the facts of the instant 

2208 
case, I conclude and find that mine management here made 

a positive and reasonable response to the complainants 

safety concerns and my reasons in this regard follow~ 

While it may be true that Mr. Hogan and Mr. Ventura 

communicated "their fears" about the elevator to several 

management members, MSHA's inference at page 8-9 of its 

brief that they articulated any specific concerns about the 

purported elevator dropping to either Mr. Hager, Mr. Dennis Smith, 

or any other management representative is rejected as 

unsupported by any credible testimony. 

While it may be true that Mr. Hager and Mr. Dennis Smith 

had reason to know that the elevator had malfunctioned prior 

to the work refusal, I cannot conclude that Mr. Hager's 

reactions to the complaints by Mr. Hogan and Mr. Ventura 

were unreasonable in the circumstances. He summoned an 

elevator serviceman from the manufacturer, dispatched a 

maintenance foreman to the elevator penthouse to try to find 

the problem, and also summoned a Federal and state mine 

inspector to the scene. He also offered to operate the 

elevator in a manual mode so as to transport Mr. Hogan and 

Mr. Ventura underground without resort to the automatic 

elevator controls. In the meantime, several elevator trips 

were made underground with the rest of the shift, and the 

union president himself made two "test runs" on the elevator 

and found nothing wrong with it. All of these events were 

known to Mr. Hogan and Mr. Ventura prior to the work refusal. 

Mr. J.T. Smith, an experienced maintenance foreman who had 

gone to the elevator penthouse to check it, assured the 

complainants that he found nothing with it and that it was 

safe. This was communicated to Mr. Hogan and Mr. Ventura 

prior to the work refusal. 

No cause for the stopping of the elevator was ever 

found. While there was speculation that a faulty contactor 

relay may have caused the elevator to stop, at no time were 

any of its safety features inoperative, and the relay was 

replaced. Further, the inspection by the Federal and state 

mine inspector revealed no safety infractions, and did not 

result in the issuance of any citations . 

. Safety committeeman Willis believed that mine management 

acted reasonably in summoning an elevator mechanic and the 

Federal and state inspectors. He commented that he had ridden 

the elevator many times and that "anytime that elevator 

malfunctions it is a headache for both management and union, 

it causes a lot of concern." 

Committeeman Willis, who also held the elected position of vicepresident of the local UMWA union, worked the same shift with 

the complainants, and was at the mine on December 28. He 

2209 
testified that Mr. Hogan and Mr. Ventura did not speak with 

him prior to their work refusal. Although he spoke with 

Mr. Kessler, Mr. Willis testified that he simply told him 

that the elevator stopped and ''felt like it dropped," 

but that Mr. Kessler said nothing about how far the elevator 

may have dropped. 

The complainants failure to bring the purported hazardous 

elevator condition to the attention of a mine safety committeeman 

who was present for work on the same shift remains unexplained. 

A possible answer may lie in the fact that the complainants 

may have expected a "collective" work refusal by the entire 

shift not to ride the elevator. When this failed to 

materialize, the complainants invoked their own individual 

safety rights. 

I find it rather surprising that the complainants would 

not bring the purported elevator "dropping" condition to 

the immediate attention of the safety committeeman who was 

present at the scene. Rather than doing this, the complainants 

waited until they were summoned to the mine foreman's office 

before involving safety committeeman Willis. The failure 

by Mr. Hogan a~d Mr. Ventura to immediately bring the purported 

50 to 100 foot elevator drop to the attention of their safety 

representative is not only irresponsible, but casts serious 

doubts on their credibility and motivation in refusing to ride 

the elevator. 

While it is true that there were elevator problems 

on December 27, and earlier during the day shift on 

December 28, the fact is that those problems involved malfunctions 

of the doors which had been corrected prior to the work 

refusal in question. Further, both Mr. Hogan and Mr. Ventura 

rode the elevator out of the mine at the end of their shift 

on December 27, and they encountered no problems. 

Mr. Hogan confirmed that by the end of his shift on 

December 27, the elevator problem had been repaired, and 

that such repairs were made within ten or fifteen minutes 

after he heard about it. He also testified that when he 

later spoke to mine management (Jackie Smith, Allen Hager, 

and Denny Smith) on December 28, he did not ask them about 

the .December 27 problem. 

Mr. Ventura confirmed that he knew that the reported 

elevator malfunction of December 27 had been repaired. As 

a matter of fact, he testified that since the elevator was 

the main escapeway, his foreman granted his request to leave 

the mine early if the elevator were not repaired within a 

2210 
half hour. Since it was repaired, Mr. Ventura did not leave 

early, and he rode the elevator out of the mine at the end 

of the shift. At that time, even though Mr. Ventura claimed 

that one of his fellow workers told him that he tripped 

while boarding the elevator when it raised up 8 to 12 inches, 

Mr. Ventura did not report this incident to anyone and went 

home. 

In view of the foregoing, I conclude and find that the 

earlier problems with the elevator on December 27, cannot 

serve as a basis for any reasonable good faith belief that 

the elevator was hazardous at the time of the work refusal 

immediately prior· to the work shift on December 28. 

With regard to the elevator door problems of December 28, 

which delayed the day shift from entering the mine until 

approximately 10:00 a.m., testimony from several men on that 

shift (Kessler and Dowling), maintenance personnel (Whitehair 

and Jackie T. Smith), and mine foreman Hager, reflects that 

repairs were made. The day shift then used the elevator to 

enter the mine, and that they did so without experiencing 

any problems. Under these circumstances, although Mr. Hogan 

and Mr. Ventura may have learned about these problems though 

general bathhouse conversations after the day shift came 

out of the mine on December 28, at the end of the shift, I 

cannot conclude or find that these earlier problems contributed 

to, or formed a basis for, any reasonable good faith 

belief that the elevator was hazardous at the time of their 

refusal to use it. 

Based on a careful reivew and scrutiny of all of the 

testimony and evidence in this case, I conclude that the 

only possible basis for the complainants' belief that an 

elevator hazard existed is the information given them by 

certain day shift miners who were on the elevator when it 

reportedly "dropped." The essence of the work refusal lies 

in the contention by Mr. Ventura and Mr. Hogan that, not 

knowing what caused the reported "drop," they were not willing 

to chance a possible repeat incident. 

Mr. Ventura testified that it was possible that he 

would not have refused to ride the elevator had Mr. Kessler 

not mentioned the purported "drop." When asked whether he 

would have still refused to ride the elevator if no one had 

mentioned the "drop," Mr. Hogan responded "I don't know, that's 

hypothetical." 

There is no evidence in this case that the respondent 

has ever retaliated against any miners because they exercised 

their individual safety rights. As a matter of fact, Mr. Hogan 

2211 
and Mr. Ventura were assigned other work when they refused 

to ride the elevator. On prior occasion$, Mr. Hogan had 

made safety complaints and invoked his right to refuse 

to work for safety considerations, and nothing happened to 

him. He was given other work, and the matters complained 

of were taken care of by mine management. 

Shuttle car operator Mark Sunyak testified that he 

had previously exercised his safety rights in regard to 

certain imminent danger situations, but that mine management 

took corrective action and did not discipline him. 

In Dunmire and Estle, supra, the Commission held that 

a combination of trustworthy first-hand reports from other 

miners, coupled with the complainant's immediate preceding 

first-hand experience as to certain hazardous roof conditions, 

supplied a supportable and acceptable basis for concluding 

that there was a reasonable belief in the existence of the 

hazardous conditions. In affirming the Judge's finding 

that the complainant's work refusal was protected activity, 

the Commission relied on the record of credible, first-hand, 

corroborative evidence presented, including the complainant's 

prior personal exposure to the hazardous roof conditions, 

and their previous complaints spanning several months. 

In the case at hand, I cannot conclude that the circumstances 

faced by Mr. Hogan and Mr. Ventura, were similar to those 

faced by Dunmire and Estle. Based on a preponderance of all 

of the credible testimony, I am convinced that Mr. Ventura 

and Mr. Hogan were not presented with credible first-hand 

information indicating that the elevator in question would 

more than likely fall to the bottom of the shaft if they 

were to ride it. Taken as a whole, the record in this case 

establishes to my satisfaction that notwithstanding 

the fact that mine management took reasonable steps to insure 

their safety, Mr. Hogan and Mr. Ventura took it upon themselves 

to decide that they were not going to ride the elevator. 

The fact that their own union representatives rode it, that 

other members of the crew rode it, and that mine management 

assured them that it was safe, simply had no impression on 

them. Given these circumstances, I cannot conclude that 

the respondent violated their protected rights under the 

Act. In the final analysis, I believe that Mr. Hogan and 

Mr. Ventura, faced with a decision that they would have to 

make as individuals, opted to make a decision that they believed 

would ultimately vindicate their own individual opinions. 

However, after close examination of all of the objective 

testimony and evidence of record, I believe that they were wrong. 

Accordingly, I cannot make findings and conclusions that would 

support their position. 

2212 
After both sides had completed their questioning of the 

complainants, I recalled them for additional questions. When 

asked why their prior signed statements gi~en to MSHA's 

special investigator during his investigation of their 

complaints fail to mention that they informed anyone in mine 

management at the time of the work refusal about the purported 

elevator dropping, Mr. Hogan indicated that the special 

investigator somehow failed to record his entire statement 

and somehow edited his statement. Mr. Ventura stated that 

he "was not sure ... why he did not tell MSHA's investigator 

the full story of the purported elevator "dropping." 

After viewing Mr. Ventura and Hogan on the stand during 

their testimony at the hearing, I conclude that they were less 

than .candid in what they told the MSHA special investigator 

during his investigation of their complaint, as well as what 

they testified to at the hearing. In short, I simply do not 

believe that they in fact told the special investigator that 

they were informed that the elevator had in fact dropped or 

fallen, and that this asserted event really influenced their 

decision not to ride it. To the contrary, I conclude and 

find that Mr. Hogan and Mr. Ventura did not communicate the 

asserted elevator "dropping'' to anyone at anytime prior to 

their work refusal. Absent this communication, I cannot 

conclude that their work refusal was reasonable. 

Contrary to the situation which existed in the Pratt case, 

supra, I conclude and find that the respondent in the instant 

case specifically and directly addressed the purported hazardous 

condition articulated by Mr. Hogan and Mr. Ventura, and it 

did so in a manner which should have pacified and assured 

a reasonable person that he was not faced with a choice 

of riding an elevator that could have been expected to resulted 

in injury or exposure to possible harm. In short, I conclude 

and find that the complainants in this case acted unreasonably 

in refusing to ride the elevator in question, and that the 

suspensions meted out for the work refusal were reasonable 

in the circumstances, and did not violate any protected rights 

under the Act. 

Conclusion and Order 

In view of the foregoing findings and conclusions, and 

after careful consideration of a preponderance of all of the 

testimony and evidence adduced in this case, I conclude and 

find that the respondent did not discriminate against Mr. Hogan 

or Mr. Ventura, and their rights under the Act have not been 

violated. Accordingly, their complaints ARE DISMISSED. 

2213 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

KITT ENERGY CORPORATION, 

Respondent 

DECISION 

Before: Judge Kennedy 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 82-363 

A.C. No. 46-04168-03503 

Docket No. WEVA 83-64 

A.C. No. 46-04168-03528 

Kitt No. 1 Mine 

The parties move for approval of a motion withdrawing 

the captioned penalty petitions on the ground that a review 

of the videotapes of the condition cited shows the violation 

charged did not, in fact, occur. 

In what came to be known as the case of the "slippery 

slopes," MSHA charged two violations 75.1704 on the ground 

that the hand rails on a slope that served as an escapeway 

were not maintained so as to insure safe passage of the 

miners at all times. Because the violations were considered 

"nit-picks," MSHA proposed its usual "wrist-slap" penalty of 

$20. When the matters, together with others, came on for a 

prehearing conference, the trial judge suggested that before 

the parties put the taxpayers and stockholders to further 

inordinate expense over what both parties conceded were 

trivial violations they attempt to resolve the matter by 

making videotapes of miner~ using the slopes in question to 

determine the difficulty, if any, involved in climbing 

through the areas. 

The parties agreed to this and after accomplishing the 

"view" agreed the citations were improvidently issued and should 

be vacated. This having been accomplished the instant motion 

followed. I conclude the violations charged did not, in fact, 

occur and that the citations were, therefore, properly vacated. 

2214 
Accordingly, it is ORDERED that the motions to withdraw 

be, and hereby are, GRANTED and e captioned matters DISMISSED. 

Distribution: 

Joseph B. Ke nedy 

Administrative Law 

David Street, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

B. K. Taoras, Esq., Kitt Energy Corporation, 455 Race Track 

Road, P.O. Box 500, Meadow Lands, PA 15347 (Certified Mail) 

/ejp 

2215 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR . 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 t.: ;. 

f.. ;L .... "-:'-· 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-237 

A.C. No. 46-01283-03518 

Hampton No. 3 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Kennedy 

The parties move for approval ~f a settlement of the 

respirable dust violation (2.5 mg/m ) charged in the captioned 

proposal at a 27% reduction in the amount initially assessed 

($225 v. $311). 

Based on an independent evaluation and de nova review 

of the circumstances, I find the settlement proposed is in 

accord with the purposes and policy of the Act. 

Accordingly, it is ORDERED that the operator pay the 

amount of the penalty agreed upo , $225, on or before Friday, 

January 4, 1984, and that subje t o payment the captioned 

matter be DISMISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

Agnes M. Johnson-Wilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, 3535 Market St., Philadelphia, PA 

19104 (Certified Mail) 

F. Thomas Rubenstein, Esq., Westmoreland Coal Company, P.O. 

Drawers A & B, Big Stone Gap, VA 24219 (Certified Mail) 

/ejp 

221(~ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 83-89 

A.C. No. 36-00970-03512 

v. 

Maple Creek No. 1 Mine 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

David A. Pennington, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

When the above case was called for hearing in Washington, 

Pennsylvania, on November 30, 1983, the parties submitted on the 

record a motion to approve a settlement. The MSHA inspector who 

issued the two citations contained in this docket number was 

unable to be present at the hearing. 

One citation was originally assessed at $136, and the parties 

propose to settle for $50. The violation charged was insufficient 

velocity of air (4,500 cfm when the methane and dust control plan 

called for 5,000 cfm). It appears that the low reading was taken 

during the mining cycle and that one of the shuttle cars hit a 

line curtain. There was sufficient air at the face before mining 

started. The significant and substantial designation is to remain. 

The other citation was originally assessed at $168, and the 

parties propose to settle for $100. The violation charged was 

the failure to have a trolley wire properly guarded. The parties 

state that the missing guard was on the narrow or rib side and 

thus miners were unlikely to contact it. 

I accept the representations in the motion and conclude that 

the settlement agreement should be approved. 

221'7 
Therefore, IT IS ORDERED that the settlement agreement is 

APPROVED and Respondent is ORDERED TO PAY the sum of $150 within 

30 days of the date of this decision. 

Distribution: 

~ AfJn~d~~ fyf James A. Broderick 

Administrative Law Judge 

David A. Pennington, 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., 600 Grant Street, Room 1580, 

Pittsburgh, PA 15230 (Certified Mail) · 

/fb 2218 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 22, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

VULCAN MATERIALS COMPANY -

SOUTHEAST DIVISION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 84-7-M 

A.C. No. 09-00067-05503 

Kennesaw Quarry and Plant 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The parties have filed a motion to approve settlement 

in the above-captioned proceeding. The parties propose to 

settle the two citations at issue in this case for the 

original assessments total of $4,000. 

Citation No. 2243958 was issued for a violation of 30 

C.F.R. § 56.12-25 because the emergency stop switch for a 

conveyor belt was not frame-grounded. A miner was electrocuted when he grasped the actuating lever of the emergency 

stop switch. The accident was caused by an electrical fault 

at the stop switch which occurred due to strain and flexing 

of the conductors entering the switch housing. The single 

bolt securing the switch to the wall was not sufficient to 

prevent movement of the switch when the cord was pulled. 

Consequently, the cable pulled out of the strain clamp and 

the bare or damaged conductors contacted the switch frame. 

The parties advise that negligence was low because the 

status of the grounding was not visually apparent and had 

not been detected despite previous diligent inspections by 

the operator. The violation was abated in good faith. The 

mine is medium in size and the operator is large. There is 

no history of prior violations of the cited standard. 

Payment of the penalty will have no significant effect on 

the operator's ability to remain in business. The parties 

propose to settle this citation for the original assessment 

of $3,000. 

2219 
Citation No. 2243959 was issued for a violation of 30 

C.F.R. § 56.12-2 because the emergency stop switch for a 

conveyor belt was not properly mounted. The violation contributed to the fatality described above. The parties 

advise that negligence was low. The remainder of the 

statutory criteria set forth in section llO(i) of the Act 

are as described above. The parties propose to settle this 

citation for the original assessment of $1,000. 

I have very carefully reviewed the settlement motion 

and supporting materials. Although the violations are 

exceptionally grave, I note the low degree of negligence and 

absence of prior violations of the cited standards. Inasmuch 

as both assessments are substantial amounts, I conclude the 

recommended settlements are appropriate in this case. The 

recommended settlements are therefore, approved. 

ORDER 

The operator is ORDERED to pay $4,000 within 30 days 

from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Ken S. Welsch, Esq., Office of the Solicitor, U. S. Department 

of Labor, 1371 Peachtree Street, N.E., Atlanta, GA 30367 

(Certified Mail) 

Oscar N. Persons, Esq., Alston & Bird, 100 Galeria Parkway, 

Suite 1200, Atlanta, GA 30339 (Certified Mail) 

/ln 

2220 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COlFAX AVENUE, SUITE 400 

DENVER, COlORADO 80204 DEC 2 2 --~ 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF ROBERT K. ROLAND, 

Complainant 

v. 

OIL SHALE CONSTRUCTORS, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 83-90-DM 

MSHA Case No. MD 83-01 

Parachute Creek Mine 

ORDER OF DISMISSAL 

Before: Judge Carlson 

The Secretary of Labor has filed a motion styled "Motion 

to Withdraw Proposal for Penalty" in which he seeks to withdraw 

as representative of the complaining miner in this discrimination 

case, and to withdraw the complaint. (Penalty is mentioned in 

the title of the motion because the discrimination complaint 

includes a plea for a civil penalty of $5,000 in addition to 

remedies for the miner.) 

Before I rule upon the motion, certain prefatory matters 

must be set forth. On December 14, 1983, Robert K. Roland, the 

complaining miner, came to the offices of the Commission in 

Denver and spoke to the undersigned judge. He expressed concernthat 

the Office of the Solicitor had orally advised him on November 21, 

1983 that the Secretary would no longer furnish counsel in his 

case. He was unsure of the posture of his case since the 

Solicitor's office had not yet made any filing evidencing an 

intent to withdraw. As Mr. Roland spoke, he made declarations 

which touched directly upon the merits of the case. I must 

regard these declarations as an ex parte communication forbidden 

by Commission rules. While Mr. Roland was in my belief innocent 

of any improper intent, I concluded at that time that I should 

disqualify myself from any further proceedings in the case. 

On the following day the Secretary's motion for withdrawal 

was filed. On December 16, 1983, I initiated a telephone conference call with the counsel for Oil Shale Constructors, counsel 

for the Secretary, and Mr. Roland on the line. At the outset 

I made known that an ex parte communication respecting the merits 

had been made, and that I had decided that disqualification was 

the only proper action on my part. I did not disclose the content 

of the ex parte declaration in view of the decision to disqualify. 

2221 
I did, however, indicate a willingness to rule upon the pending 

motion should all of the parties agree that. I should do so, since 

that act would not relate to the merits, and would move the matter 

one step closer to possible resolution. All participants were agreeable. 

I further advised Mr. Roland that I would give him fifteen 

days, if he wished them, in which to file formal objections to the 

Secretary's motion to withdraw. Mr. Roland indicated an understanding 

of what was involved and affirmatively waived his right to object. 

I also made clear to the parties my intent to grant the motion. 

I indicated that a question exists as to whether the Secretary 

possesses an absolute right to decide whether or not to continue 

representation, once begun, but that for reasons of practicality and 

fundamental fairness I was not inclined to require the Secretary to 

particularize his reasons for withdrawal for fear such reasons, if 

spread upon the record, might substantially prejudice the complaining 

miner's cause should he elect to refile the case on his own behalf. 

No party contested this reasoning. Consequently, the motion 

is granted, and docket number WEST 83-90-DM is dismissed. 

The complaining miner is advised, as he was during the telephone 

conference, that under my interpretation of the relevant statutory 

provisions and Commission rules, he has 30 days from the issuance of 

this order to refile the complaint with the Commission on his own 

behalf. 

Distribution: 

Robert K. Roland 

c/o Kay Duran 

8520 Rainbow Avenue 

v / 

w ,~~~,,,; 

A. Carlson 

nistrative Law Judge 

Denver, Colorado 80229 (Certified Mail) 

Jon G. Sarff, Esq., Jasper Construction Company 

10,000 Highway 55 West 

Plymouth, Minnesota 55441 (Certified Mail) 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 (Certified Mail) 

/ot 

2222 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

~- • . . ·•. r. • -. 

)-,.•l • ' ... ~· t. ... • :~.._ "' 

J. D. MOSLEY, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 84-15-D 

D. F. J. COAL COMPANY, INC., 

and JOHN LINDER, 

BARB CD 83-39 

Appearances: 

Before: 

Respondent No. 4 Mine 

ORDER OF DISMISSAL 

Tony Oppegard, Esq., Appalachian Research and 

Defense Fund of Kentucky, Hazard, Kentucky, 

for Complainant; 

S.H.Johnson, Esq., Johnson & Johnson, Paintsville, Kentucky, for Respondents. 

Judge Melick 

At expedited hearings, the Complainant requested 

approval to withdraw his complaint in the captioned case 

based on a satisfactory settlement agreement between the 

parties. Under the agreement, the Complainant receives 

certain promises from the operator as well as payment of 

$10,000 for lost wages. Under tfte circumstances herein, 

permission to withdraw is granted. 29 CFR § 2700.11. The 

case is therefore dism. is,ed. \ r\ ( ... '\ " ' \ 

~I\~\ \\}\,'cl ,<\,u ~ Gary ~elick \ 

Assistant Chief Administrative Law Judge \ . 

Distribution: 

Tony Oppegard, Esq., and Martha P. Owen, Esq., Appalachian 

Research and Defense Fund of Kentucky, Inc., P.O. Box 360, 

Hazard, KY 41701 (Certified Mail) 

Darrell Johnson, D.F.J. Coal Company, Highway 80, P.O. Box 

454, Hindman, KY 41822 (Certified Mail) 

S. H. Johnson, Esq., Johnson & Johnson, P.O. Box 470, 

Paintsville, KY 41240 (Certified Mail) 

nsw 

2223 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

.DEC Z 'l 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 80-79 

A.C. No. 42-00094-03008 I 

Docket No. WEST 80-128 

A.C. No. 42-00093-03018 

Docket No. WEST 80-152 

A.C. No. 42-00092-03013 

v. 

KAISER STEEL CORPORATION, 

Respondent 

Appearances: 

Before: 

Sunnyside Nos. 2, 1, 3 Mines 

DECISION 

Phyllis K. Caldwell, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

David B. Reeves, Esq., Kaiser Steel Corporation, 

Fontana, California, 

for Respondent. 

Judge Vail 

STATEMENT OF THE CASE 

The above three consolidated cases, involve petitions proposing 

assessment of civil penalties pursuant to provisions of the Federal 

Mine and Safety Act oE 1977 (hereinafter the "Act"), 30 u.s.c. § 801 

et~· A hearing on the merits was held in Price, Utah, following 

which the parties filed post-hearing briefs. Based upon the entire 

record and considering all of the arguments of the parties, I make 

the following decision. To the extent that the contentions of the 

parties are not incorporated in this decision, they are rejected. 

STIPULATION 

The parties stipulated as follows: 

1. Kaiser Steel Corporation (hereinafter "Kaiser") and its 

Sunnyside Mines Nos. 1, 2, and 3 are subject to the jurisdiction and 

coverage of the Act. 

2. Kaiser is a medium sized operator employing 230 miners and 

producing approximately 3,000 tons of ore daily. 

2224 
3. It is further agreed by the parties that the history of 

prior violations under the Act is low and that the assessment of 

reasonable penalties in these cases, would not impair Kaiser's 

ability to continue in busines~. 

4. It was also stipulated that good faith was shown on the 

part of Kaiser in the abatement of citation No. 789800 in Docket No. 

WEST 80-152 and citation Nos. 789765 and 789767 in Docket No. WEST 

80-128. 

Docket No. WEST 80-79 

At the commencement of the hearing, the Secretary moved to 

withdraw his petition for the assessment of penalties for two 

citations in Docket No. WEST 80-79. Counsel for the Secretary 

stated that the basis for this motion was an inability on the 

Secretary's part to prove the alleged violations. (Transcript at 

5) • 

There £eing no objection by Kaiser and pursuant to 29 C.F.R. 

§ 2700.11, /, the Secretary's motion was granted and citation 

Nos. 789229-and 789230 are vacated and Docket No. WEST 80-79 is 

dismissed. 

Docket No. WEST 80-152 

Citation No. 789800 

On August 14, 1979, MSHA inspector Gerald Mechtly conducted an 

inspection of Kaiser's underground coal mine identified as the 

Sunnyside Mine No. 3. Ralph A. Sanich, Kaiser's safety specialist, 

accompanied Mechtly. 

l/ 2700.11 Withdrawal of Pleadin~: 

A party may withdraw a pleading at any stage of a 

proceeding with the approval of the Commission or the 

Judge. 

2225 
As a result of this inspection, Mechtly issued a 

104(d)(l) 2/ citation No. 789800 alleging a violation of safety 

standard 3o C.F.R. § 75.305. The condition or practice alleged to 

have occurred is described in the citation as follows: "There was no 

date, time, and initial, in the 16R return belt entry to indicate a 

Mine Examiner had performed the weekly examination since 7-30-79. 

On the surface the pre-shift mine examiner's book has records dated 

8-6-79 and 8-13-79 stating "16R belt return O.K." 

The standard alleged to have been violated reads in pertinent 

part as follows: 

§ 75.305 Weekly examinations for hazardous conditions. 

[Statutory Provisions] In addition to the preshift and 

daily examinations required by this Subpart D, examinations 

for hazardous conditions, including tests for methane, and 

for compliance with the mandatory health or safety 

standards, shall be made at least once each week by a 

certified person designated by the operator in the return 

of each split of air where it enters the main return, on 

pillar falls, at seals, in the main return, at least one entry 

of each intake and return air course in its entirety, 

idle workings, and, insofar as safety considerations permit, 

abandoned areas. Such weekly examinations need not be made 

during any week in which the mine is idle for the entire 

week, except that such examination shall be made before any 

other miner returns to the mine. The person making such 

examinations and tests shall place his initials and the date 

and time at the places examined •••• A record of these examinations, tests, and actions taken shall be recorded 

in ink or indelible pencil in a book approved by the 

Secretary kept for such purpose in an area on the surf ace 

of the mine chosen by the mine operator to minimize the 

danger of destruction by fire or other hazard, and the 

record shall be open for inspection by interested persons. 

2/ section 104(d)(l) of the Act provides in pertinent part as 

follows: 

(1) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act ••.• 

2226 
Kaiser contends that weekly examinations of the cited area of 

the mine had been made as evidenced by the notations on the surface 

in the pre-shift mine examiner's book. Also, Tom Dickerson, 

Kaiser's mine examiner, testified that he had made the required 

examinations and entries in the surface book as well as underground 

at certain locations in the entry. Kaiser further contends that 

exhibit R-2 support the testimony of Dickerson (Tr. 93, 94 and Exh. 

R-2). 

The Secretary argues that there were at least four inspection 

cards in the left half of the 16 right entry of Kaiser's mine which 

bore no dates or initials that would coincide with the pre-shift 

mine examiner's book on the surface. He further contends that 

section 75.305 requires an inspection be made once a week of one 

entry of each intake and return air course in its entirety. 

Further, that the violation cited here is for a failure to inspect 

rather than a record keeping violation, thus the 104(d)(l) 

designation (Tr. 92, 93). 

The facts surrounding the inspection which gave rise to the 

issuance of citation No. 789800 are not in dispute. The 16 right 

belt entry is described as a two entry system approximately 6800 

feet long. The lower level is designated a travel and intake entry 

and the upper level ·as a belt and return entry. The two entries are 

separated by pillar blocks with stoppings constructed between the 

pillars. Doors are located in the stoppings at approximately every 

500 feet with six or seven doors between cross-cuts 29 and 62, the 

area cited here. 

Mechtly testified that on August 14, 1979, he and Sanich 

traveled the intake entry to an isolation area located between 

cross-cut 61 and 62. After inspecting that area, they started back 

in the return belt entry. It was at this point he observed cards 

indicating when the area had last been inspected on a weekly basis. 

The first card without the proper date and initials was observed 

near the isolation door between cross-cuts 61 and 62. It showed 

July 30, 1979 as the last date a weekly inspection was conducted. 

Three other cards with the same date and initials were observed in 

the return belt entry at cross-cuts 53, 58, and 46. Based on this, 

Mechtly informed Sanich of his concern that there was a violation of 

section 75.305 and that he wanted to go to the surface to look at 

the mine examiner's book. They then proceeded to cross-cut 29 and 

out the lower intake entry (Tr. 45-49, Exhibits Pl and P2). 

The mine examiner's book on the surface indicated that 

inspections were made in the 16 right entry on August 6 and 13, 1979 

(Tr. 5 0) • 
Sanich testified that he observed some cards shown him by 

Mechtly in the return belt entry on August 14, 1979, with dates and 

initials to indicate a weekly inspection was not made within the 

prior two weeks. He also stated that when Kaiser was given citation 

No. 789800, he did not realize it was a (104(d)(l) order. on 

December 4, 1979, approximately three months later, Kaiser was sent 

a notice by the MSHA assessment off ice indicating that the citation 

was a 104(d)(l) order. Upon receipt of that information, Sanich 

went underground to the 16 right entry and retrieved some miner's 

inspection cards from cross-cuts 2, 19, 29, and raise belt cross-cut 

1 and 7 indicating that the area had been inspected on August 13, 

1979 (Tr. 33, 34 and Exhibits Rl and R2, A,B,C,D). Based upon this 

evidence, Kaiser argues that it has proven that a miner's examination was conducted of the 16 right entry. Also, that standard 

75.305 does not require that every card in the return must be 

signed. 

I reject Kaiser's argument in this case. The standard requires 

a weekly examination by a certified person in at least one entry 

of each intake and return air course in its entirety. In this case, 

the operator had placed cards for the miner examiner to sign in 

various locations in the entry. The four cards observed by Mechtly 

in the return entry, without the proper dates and initials to show 

that a weekly examination had been made, covered a distance of 

approximately 3000 feet or half of that particular entry. Prior 

dates and initials had been placed on these cards a~ late as July 

30, 1979. I must assume that the operator placed these cards at 

those particular places expecting them to be used by the person 

certified to do the weekly mine examination. 

Kaiser's four cards showing dates and initials for August 6 and 

13, 1979, submitted as exhibit R-2 (A,B,C and D), were not 

persuasive in showing that the proper weekly inspections were made 

of the entire area. Kaiser admitted that these cards were retrieved 

approximately three months after the citation was issued. Card R-2B 

and R-2D were located at the far ends of the entry. When asked 

about this, Mechtly testified that the fact that these cards showed 

dates that conformed with weekly inspections "indicated that the 

mine examiner had access to both ends of that entry to mark those 

cards" (Tr. 64). As to the card rnarked R-2C, this was supposedly 

found by Sanich near cross-cut 53 when he went back in December 

1979. However, on cross-examination, Sanich testified that in 

August 14, 1979, the cards seen between cross-cuts 63 and 29 in the 

return entry did not have correct dates on them (Tr. 35). 

In light of the foregoing, I do not find Kaiser's arguments to 

be credible. It must be assumed that the portion of the return 

entry between cross-cut 29 and 63 was not examined by the mine 

examiner. Even assuming that the standard 75.305 does not require a 

card every few feet, as Kaiser argues, both Mechtly and Kaiser's own 

safety specialist testified that they did not see a card with proper 

2228 
dates and initials entered thereon for a distance of over 3000 feet 

in the return entry of this part of the mine on the day of the 

inspection. Therefore, it must he assumed that such a card was not 

there. Exhibit R-2C found at cross-cut 54. three months later shows 

the date of August 6, 1979 and then August 15, 1979, which was a day 

after the inspection so this does not support Kaiser's contention 

that a card existed in the cited area showing that the required 

weekly inspection had occurred. 

I have considered the testimony of Torn Dickerson, Kaiser's 

certified mine examiner, wherein he testified that there were 

approximately ten cards in the 16 right belt entry and that he does 

not mark each card as he does his inspection. Also, that he made a 

weekly inspection of 16 right belt entry on August 6 and 13, 1979 

(Tr. 80-81). However, the credible evicJence does not support this. 

Out of ten cards, in this entry, only one, Exhibit R-2C was 

presented as evidence to show the examination was made and this 

showed a date of August 6, 1979 which was more than a week before 

the inspection and a date of August 15, 1979, which was a day after. 

Also, Dickerson testified that he was advised by a Mr. Oviatt, 

Kaiser's mine foreman on August 14, 1979 (the day citation No. 

789800 was issued) to stay out of the area (Tr. 78). However, 

Exhibit R-2C shows that Dickerson was back in the area and dated the 

card and initialed it with his initials "TD" on August 15, 1979. 

Dickerson also testified that he didn't go into the area on August 

14 or 15, 1979 (Tr. 79). No explanation was given ~t the hearing 

for this discrepancy but it goes towards the credibility of the 

witness. 

I find that a violation of the standard occurred and that such 

a violation constitutes an unwarrantable failure on the part of 

Kaiser. Kaiser knew or should have known that the cards were not 

being marked in an area of its mine which would alert it to the 

probability that weekly inspections were not being properly 

conducted. Other members of mine management would have occasion to 

be in this area and should have observed this. Zeigler Coal 

Company, 7 IBMA 280 (1977). 

I further find that such a violation is of a significant and 

substantial nature as those terms are defined in Cement Division, 

National Gypsum Company, 3 FMSHRC 822 (April 1981). That is, a 

finding of whether a violation is "significant and substantial" 

depends on whether there existed a reasonable likelihood that the 

hazard contributed to or would have resulted in an injury of a 

reasonable serious nature. The purpose of the weekly inspection 

provided for in standard 75.305 is to detect hazardous conditions 

such as deteriorating roof conditions, air currents being blocked 

off and reversed, and methane accumulations. Any of these 

conditions could cause serious injury or death to miners in the 

area, if undetected. 

2223 
I find that Kaiser did show good faith in quickly abating this 

violation. I find that a penalty of $21-0.00 is appropriate in this 

case. 

Docket No. WEST 80-128 

The facts in this case are not in dispute. on August 1, 1979, 

MSHA inspector Theodore L. Caughman issued six citations involving 

three pieces of mine equipment alleging violations of the Federal 

Coal Mine and Safety Act of 1977, 30 u.s.c. § 801 et seq. Caughman 

wrote the citations when he observed two shuttle cars and a loader 

cleaning up coal in the 15 right belt entry of Kaiser's Sunnyside 

No. 1 Mine. Each piece of equipment was cited under 30 C.F.R. 

§ 75.523-1 (failure to have a panic bar) and 30 C.F.R. § 75.1710-1 

(failure to have a cab or canopy). Kaiser was given until the 

following day (August 2, 1979) to abate these violations. 

On August 2, 1979, Caughman returned to the same area and found 

that the three pieces of equipment had been moved to a location near 

the railroad track leading out of the mine. The trailing cables 

were disconnected and stored in the cars. Caughman issued a 

modification for each citation indicating that the equipment had 

been removed from service and that additional time was needed to 

remove it from the mine. The abatement period was extended to 

August 7, 1979 (Exh. R-1). 

On August 7, 1979, the inspector returned to the mine and found 

the loader parked outside the mine on a rail car and so terminated 

the two citations issued on that unit. On entering the mine, he 

discovered that the two shuttle cars were still underground at the 

locati~n where he had earlier seen them. Caughman issued a 

104(b) / order against each of the four citations issued on the 

two shuttle cars and pinned a red tag on the equipment for failure 

to abate the citations within the time designated. 

lf Section 104(b) of the Act reads in pertinent part: 

If, upon any follow-up inspection of a coal or other mine, 

an authorized representative of the Secretary finds (1) that a 

violation described in a citation issued pursuant to subsection (a) has not been totally abated within the period of 

time as originally fixed therein or as subsequently extended, 

and (2) that the period of time for the abatement should not 

be further extended, he shall determine the extent of the 

area affected by the violation and shall promptly issue an 

order requiring the operator of such mine or his agent to immediately cause all persons, except those persons referred to 

in subsection (c), to be withdrawn from, and to be prohibited 

from entering, such area until an authorized representative 

of the Secretary determines that such violation has been 

abated. 

2230 
Issues: 

The issues in this case are: 

1. Whether the three pieces of mine equipment cited here are 

electric face equipment within the meaning of 30 C.F.R. § 75.523.1 

and 30 C.F.R. § 1710-1. 

2. Whether the 104(a) citations on the two shuttle cars were 

abated by removing the cables and storing them in the machines 

although they remained underground in the mine. 

3. If violations are found, what is the appropriate penalty to 

be assessed. 

Discussion: 

Kaiser concedes the fact that neither the loader or two shuttle 

cars were equipped with panic bars, cabs or canopies. However, it 

contends that the citations should be set aside'because these 

machines were not "electric face equipment" within the meaning of 

the two cited safety standards and, therefore said standards are not 

applicable (Kaiser's Brief at 2). 

The facts show that on the day the three pieces of equipment 

were cited by inspector Caughman, they were being used to clean up 

coal and rock from the floor of an arched entry. The debris had 

fallen from between the arches and the area was being prepared for a 

belt entry. This was located several thousand feet from the nearest 

working face. 

Rex w. Jewkes, Kaiser's safety engineer, testified that they no 

longer used loaders, like the one cited here, directly behind the 

continuous miner in extracting coal. Instead, the continuous miner 

loads coal directly into the shuttle cars at the working face. 

Also, that all of the shuttle cars used at the working face are 

equipped with either cabs, canopies, or panic bars (Transcript 15, 

16 and 17). 

The specific issue to be decided here, then, is whether the 

loader and_two shuttle cars being used in this location are required 

to comply with either standards§ 75.523-1 or § 75.1701-1 by being 

equipped with either panic bars, cabs or canopies. I am persuaded 

that they are. 

Safety standard § 75.523-l(a) requires that all self-propelled 

electric face equipment which is used in the active workings of each 

underground coal mine shall be provided with a device that will 

quickly deenergize the tramming motors of the equipment in the event 

of an emergency. Section 75.523-l(b) provides that self-propelled 

electric face equipment that is equipped with a substantially 

constructed cab which meets the requirements of this part shall not 

be required to be proveded with a device that will quickly de2231 
energize the tramming motors of the equipment in the event of .an 

emergency. Section 75.523-l(b) provides that self-propelled 

electric fac~ equipment that is equipped ~ith a substantially 

constructed cab which meets the requirements of this part shall not 

be required to be provided with a device that will quickly 

deenergize the tramming motors of the equipment in the event of an 

emergency. 

Standard § 75.1710-1 requires installation of protective cabs 

or canopies on all self propelled electric face equipment on a 

staggered time schedule coordinated with descending mining heights. 

It states in pertinent part: 

(a) [A]ll self-propelled electric face equipment, including shuttle cars, which is employed in the actTV"e 

workings of each underground coal mine on and after 

January 1, 1973, shall, in accordance with the schedule 

of time specified in subparagraphs (1), (2), (3), (4), 

(5), and (6) of this paragraph (a), be equipped with 

substantially constructed canopies or cabs, located and 

installed in such a manner that when the operator is at 

the operating controls of such equipment he shall be 

protected from falls of roof, face, or rib, or from rib 

and face rolls. (emphasis added). 

Kaiser argues that the equipment cited here ·is not electric 

face equipment as specified in the above standard for the reasons 

that the loader and two shuttle cars were not taken or used inby 

the last open crosscut of an entry or a room of the mine. In 

support of this argument, Kaiser suggests that "electric face 

equipment" is defined in 30 C.F.R. § 75.2(i) as: "'Permissible' as 

applied to electric face equipment means all electrically operated 

equipment taken into or used inby the last open crosscut of an 

entry or a room of any coal mine •••• " Further, it argues that 

applicable legislative history dispels any doubt that the term 

"electric face equipment" was only descriptive of equipment used 

in the specified geographic area (Kaiser's Br. 4, 5). 

I am not persuaded by Kaiser's argument. Both regulations do 

refer to self propelled electric face equipment and, -also, to 

shuttle cars specifically. However, the area of use is not stated 

to be or restricted only to the face of the mine. Instead, the 

area of use is described as the "active workings" of the mine. In 

30 C.F.R. § 75.2, the drafters of the regulations saw fit to 

define what they meant by the terms used. 75.2(g)(4) states as 

follows: "active workings means anyplace in a coal mine where 

miners are normally required to work or travel." It should be 

noted that under§ 75.2(g)(i) it defines what a working face means 

and states as follows: "[M]eans any place in a coal mine in which 

work of extracting coal from its natural deposit in the earth is 

performed during the mining cycle." I feel certain that if the 

2232 
intent of the Secretary was to restrict the requirements of panic 

bars or cabs or canopies to the face area of the mine, he would 

have stated "working face" rather than "active workings." 

It must also be kept in mind that the purpose of the Act and 

regulations promulgated thereunder is to protect the safety and 

health of the miners. A similar argument as presented by Kaiser 

and involving definitions of this Act, but a different regulation, 

was considered by the Sixth Circuit Court of Appeals in the case 

of Shamrock Coal Company v. Secretary of Labor, (Reference 6th 

Cir. Number 79-3199)(February 9, 1981). The case involved the 

issue of where 30 C.F.R. § 75.202 regarding roof support required 

roof support in tunnels leading to the face, or just the face, 

under the phrase "working places." The Court stated in pertinent 

part as follows: 

The mine operator argues that the emphasized portion of 

this section is only applicable in "working places" 

within the mine. The term "working place" is defined 

to be the area of the mine inby the last open crosscut, 

30 C.F.R. 75.2(g)(2). Common sense, and the congressionally expressed purposes of the Act. 30 u.s.c. § 80l(a), 

however, compel us to reject an interpretation of the 

regulation which would protect workers at the face of 

the mine, but expose miners to the danger of unsupported 

roof in the tunnels they traverse on the way to and from 

the working face. 

I believe this logic is applicable in the present case. 

Kaiser further argues that by description, the two shuttle 

cars and the loader are "electric face equipment" and must only 

comply with the requirements of the cited regulations if they were 

being used or intended to be used at the face. This problem was 

addressed by the Commission in Secretary of Labor v. Solar Fuel 

Company, 3 FMSHRC 1384 (1981), wherein they held that "equipment 

which is taken or used inby the last open crosscut" means 

equipment habitually used or intended for use regardless of 

whether it.is located inby or outby when inspected. The 

Commission emphasized in Solar Fuel Company that it is not where 

the equipment is located at the time of the inspection that is 

important, but whether it is equipment which can be taken or used 

"inby." Accordingly, each of these three pieces of equipment 

involved in the present case could have been utilized at the face 

if the operator so desired. 

Kaiser maintains it no longer used loaders at the face or was 

it intending to use the two shuttle cars there. However, nothing 

would prevent them from so utilizing the equipment at the face 

should the requirement of its use arise. I therefore feel that it 

2233 
is not sufficient that the operator maintains it was not their 

intention to use the equipment as "electric face equipment." 

Kaiser further contends that according to the legislative 

history of the Act, the Secretary exceeded the scope of his 

authority in promulgating regulations providing for panic bars or 

cabs or canopies on electric face equipment used in "active 

workings" of the mine. A review of the Act shows that section 

318(g)(4) defines "active workings" the same as under the 

regulations recited earlier herein. I do not find that the 

applicable legislative history restricts the authority of the 

Secretary to provide regulations governing the use of self powered 

electric face equipment outside the area of the face. It is 

obvious that by adopting certain provisions of the Act, strict 

compliance was intended for any electric powered equipment taken 

inby the last open crosscut of the mine. However, I do not find 

that the standards § 75.523-1 and 75.1710-1 are in conflict here. 

In light of the foregoing, I find that Kaiser was in 

violation of the six citations issued against the three pieces of 

equipment cited here. 

The other issue presented in this case is whether the four 

citations against the two shuttle cars were abated, even though 

they remained underground, by removing the power ~able from the 

power source and storing the cable in the boxes on the machines. 

The Secretary argues that the shuttle cars were still 

available for use and that it would only take minutes to plug the 

trailing cables into the power source located approximately 150 

feet away and the machines would be back in service (Secretary's 

Brief at 4) • 

Kaiser argues that the two machines had not been used since 

the withdrawal from service and that there is no requirement that 

defective equipment he removed and taken to the surface to 

constitute abatement. Kaiser also contends that the Secretary's 

reliance on the Commission's decision in Ideal Basic Industries, 2 

FMSHRC 1242 (April 1981), is misplaced (Kaiser's Br. at 14). 

I disagree with this argument as I find the Commission's 

ruling in Ideal Basic Industries plainly supports the Secretary's 

argument here. In Ideal Basic, the equipment cited was a track 

mobile with one of two hydraulic couplers defective. The operator 

argued that the track mobile was not used in its defective 

condition after it was cited. The Secretary argued that the 

machine had been used, using the non-defective coupler, and that 

could affect safety. The Commission agreed and stated further as 

follows: 

2234 
Even if, however, the evidence were insufficient to 

establish that the track mobile was operated while the 

coupler was broken, we find that the mobile was nonetheless "used" within the meaning of the standard. If 

equipment with defects affecting safety is located in a 

normal work area, fully capable of being operated, that 

constitutes "use". Here, at the time of the inspection, 

the mobile was parked in a usual location, right next 

to the area where railroad cars--which the mobile is 

used to move--are loaded. It was neither rendered inoperable nor in the repair shop. To preclude citation 

because of "non-use" when equipment in such condition 

is parked in a primary working area could allow operators 

easily to use unsafe equipment yet escape citation merely 

by shutting it down when an inspector arrives. 

This same conclusion can be applied in the case of the two 

shuttle cars. They were in the area and available for use by 

taking out the power cables and plugging them into the transfer. 

It could take only an estimated five minutes of a miners time to 

put them back in service. 

The Commission in Ideal Basic stated that its decision was 

consistent with that in Eastern Associated Coal, 1 FMSHRC 1473 

(October 1979), which involved placing a danger tag on a defective 

jitney that remained operable in the working area. The Commission 

stated in that case: 

We hold that tagging the jitney was not sufficient 

to withdraw the jitney from service because the danger 

tag did not prevent the use of the defective piece of 

equipment. The jitney was still operable and the 

danger tag could have been ignored. 1 FMSHRC at 1474. 

The reasoning of Eastern Associated is applicable here 

as well, where there was not even a danger tag placed 

on the defective coupler. 

In light of the foregoing, I find that the same reasoning 

must be applied in the present case. There was no danger tag on 

either of the shuttle cars and either one could have been returned 

to service, either unintentionally by a miner unaware of the 

citations, or intentionally if such were the need or desire of the 

operator. Therefore, I find that the citation was not abated as 

required under 104(b). 

Penalty 

The six criteria for assessing a penalty are set out in 30 

u.s.c. § 820(i). The parties have previously stipulated as stated 

before regarding the jurisdiction, size of the operator, and that 

assessment of reasonable penalties in this case would not affect 

their ability to continue in business. 

2235 
From the evidence I conclude that Kaiser was negligent in 

allowing the two shuttle cars and the loader to be operated in the 

active workings Of the mine without either panic bars or cabs or 

canopies installed on them. I find the gravity to be serious for 

the operator of either of these machines could have been seriously 

injured or killed by being squeezed between the rib of the entry 

and the operator would be unable to quickly deenergize the 

tramming motors if an emergency arose. Also, there was an exposure of injury or death from the lack of either a cab or canopy 

on any of the equipment. 

I flnd that by removing the loading machine to the surface, 

Kaiser evidenced good faith in abatement of the two citations 

against it. However, in failing to remove the two shuttle cars 

from the mine within the time specified initially and subsequently 

extended for termination of the four citations issued against 

them, I find that Kaiser did not evidence good faith and increased 

penalties to be assessed herein is warranted. 

As to the six citations involved herein, I find the following 

penalties to be appropriate: 

Citation No. 

789765 

789767 

789768 

789778 

789769 

789777 

789770 

789775 

789771 

789776 

30 C.F.R. 

Standard 

75.523-1 

75.1710-1 

75.1710-1 

104(b) 

75.523-1 

104(b) 

75.523-1 

104(b) 

75.1710-1 

104(b) 

Description 

(loading machine, 

no panic bars) 

(loading machine, 

no cab or canopy) 

(shuttle car ET 7314 

no cab or canopy) 

(failure to abate) 

(shuttle car ET 7314 

no panic bars) 

(failure to abate) 

(shuttle car ET 7065 

no panic bars) 

(failure to abate) 

(shuttle car ET 7065 

no cab or canopy) 

(failure to abate) 

Total 

Penalty 

$ 50.00 

50.00 

100.00 

100.00 

100.00 

100.00 

$500.00 

I have elected to reduce the amount of the Secretary's 

proposed penalties in the above six citations for the reason that 

I do not find that Kaiser's negligence in this case was gross. 

223() 
Also, there were two citations against each piece of equipment for 

separate violations although compliance with either standard would 

have satisfied the Act's requirements. 

As to the abatement of the four citations on the two shuttle 

cars, I find that the machines were removed to the area where they 

would be taken to the surf ace and no evidence that this was not 

Kaiser's intention. Also, there is no evidence that the shuttle 

cars were used or there was an intention to use them after the 

citations were issued. Therefore, I do not find any indication of 

violations of the initial citations. 

ORDER 

Accordingly, in Docket No. WEST 80-79, citation Nos. 789229 

and 789230 are VACATED and the case is DISMISSED. In Docket No. 

WEST 80-152, citation No. 789800 is AFFIRMED, and Kaiser is 

ORDERED to pay a civil penalty of $210.00. In Docket No. WEST 

80-128, the six 104(a) citations and the four 104(b) orders are 

AFFIRMED and Kaiser is ORDERED to pay civil penalties totaling 

$500.00 therefore. Kaiser is ORDERED to pay the above civil 

penalties totaling $710.00 within 40 days of this decision. 

Distribution: 

'/~ (!?-~~­ . c~A;-{C,--~ 6 _· Ca-G'C 

Virg' if~ cVail 

Ad 'nistrative Law Judge 

Phyllis K. Caldwell, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 (Certified Mail) 

David R. Reeves, Esq., Kaiser Steel Corporation, 

P.O. Box 217, A-414, Fontana, California 92335 (Certified Mail) 

/blc 

22~f/ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 81983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA) , 

Petitioner 

v. 

UNITED STATES STEEL MINING 

COMPANY, 

Respondent 

Before: Judge Fauver 

: 

. . 

DECISION 

Docket Nos. PENN 82-218 

PENN 82-219 

A.C. Nos. 36-00970-03122 

36-00970-03125 

Maple Creek il Mine 

These proceedings were brought by the Secretary of Labor 

under Section llO{a) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801, et seq., for assessment of 

civil penalties for alleged violations of mandatory safety 

standards. The cases were consolidated and heard in 

Pittsburgh, Pennsylvania. 

Having considered the contentions of the parties and 

the record as a whole, I find that the preponderance of the 

reliable, probative, and substantial evidence establishes 

the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent operated an 

underground coal mine, known as Maple Creek No. 1, in 

Pennsylvania, which produced coal for sales in or substantially 

affecting interstate commerce. 

Citation No. 1145282 

Docket No. PENN 82-218 

2. On February 25, 1982, Federal Mine Inspector Francis 

Wehr issued to Respondent Citation No. 1145282, under Section 

104(a) of the Act, charging a violation of 30-CFR 75.1405. 

That section provides, in pertinent part: 

2238 
All haulage equipment ... 

shall be equipped with 

automatic couplers which 

couple by impact and 

uncouple without the 

necessity of persons going 

between the ends of such 

equipment. 

3. Inspector Wehr issued the citation because two 

locomotives were coupled to a personnel car with safety chains 

in addition to automatic couplers. Personnel were required to 

reach between the ends of the cars to connect or disconnect 

the chains. The couplers and chains are indicated in the 

drawings (Joint Exhibits 1 and 1-A) reproduced at page 3. 

4. The automatic couplers coupled on impact. They were 

uncoupled by a hand-lever near the top of the wall of the 

locomotive (which was pulling or pushing the personnel car) . 

MSHA approved use of the hand-lever for uncoupling. 

5. The chain had to be worked to uncouple. Depending 

on the tightness of the links or the strength of the miner, 

one or two hands were required to uncouple. Also, depending 

on the size, skill, and strength of the miner, the percentage 

of body exposure between the cars would vary. A window in the 

personnel carrier wall, as shown in the drawings at page 3, 

could be used for access to the chain, in connecting or 

disconnecting it, but personnel might also connect or disconnect 

the chain from outside the cars. 

6. MSHA did not approve use of the safety chains, which 

were manually connected and disconnected by reaching in between 

the cars. 

2239 
J v.-U c.,,. { 1' 

-- ~ .... 

--------- -

-----·-------· 

2240 
7. When reaching through the window to connect or disconnect 

the chain, personnel had a risk of hand and arm injuries in the 

event the cars were moved. If miners reached in from the sides 

of the cars to connect or disconnect the chain, more of the 

body was exposed to risk of injury. 

8. In the mining industry, serious injuries and deaths 

have occurred because miners were reaching in between cars .to 

couple or uncouple them when the .train was inadverently moved. 

9~ Respondent did not use safety chains on non-personnel 

haulage cars. It used them on the personnel train because of 

the risk of injury to passengers in the event of accidental 

uncoupling of the personnel car. The grade in the mine was an 

average of about 2%, and ranged up to about 10%. The personnel 

car had its own braking system, which could slow down the car 

but not bring it to a full stop in the event of an accidental 

uncoupling. 

10. Since the first use of the ch~ins at this mine, in 

1959, there have been no reported injuries of miners who were 

connecting or disconnecting the safety chains. 

Citation No. 1145239 

Docket No. PENN 82-219 

11. On March 31, 1982, Federal Inspector Alvin Shade issued 

to Respondent Citation No. 1145239, charging a violation of 30 

CFR 75.1725(a), which provides: 

{a) Mobile and stationary 

equipment shall be maintained 

in safe operating condition 

and machinery or equipment 

in unsafe condition shall be 

removed from service 

immediately. 

12. Inspector Shade issued the cit~tion because continuous 

miner No. 7761 would not turn to the right. When the operator 

tried· to operate the right tram, the circuit breaker would trip, 

de-energizing the whole machine. This condit~on had been called 

to Inspector Shade's attention by the continuous miner operator, 

who said the tram had not been working right for about two weeks. 

224-1 
13. Inspector Shade inspected the continuous miner about 

2 coal blocks from the face. The machine had been parked there 

around the beginning of the shift. They were tramming it to the 

face, but when it would not tram right, they backed it up about 

50 feet and parked it. It was energized when Inspector Shade 

inspected it. Under his observation, they tried to tram it to 

the right and the circuit breaker tripped, de-energizing the 

machine. 

14. Respondent had frequent problems with the tramming 

system on this machine from the time of its purchase, in 1980. 

The problem was the micro-switches in the tramming circuit. 

At times the circuit breaker would trip several times a shift. 

There are about 12 micro-switches in the circuitry of the 

machine, and any one might fail at any time. Respondent made 

repeated efforts to have the manufacturer test the switches 

and supply reliable ones, but as of March 31, 1982, and even 

at the time of this hearing (December, 1982), no fully 

reliable equipment or maintenance program had been developed to 

avoid this problem. On the day of the inspection and citation 

a new micro-switch had been installed on the previous shift. 

DISCUSSION WITH FURTHER FINDINGS 

The Safety Chains 

Respondent combines automatic couplers with safety chains 

on its personnel train. The couplers couple on impact; they 

are uncoupled by a hand-lever that MSHA has approved; the 

safety chains, to be connected or disconnected, require that 

an employee reach in between the ends of cars. MSHA has not 

approved the chains and charges a safety violation. 

I conclude that Respondent's use of the safety chains 

violates the safety standard, 30 CFR 75.1405, which requires 

"automatice couplers which couple by impact and uncouple 

without the necessity of persons going between the ends [of 

the cars]." By adding safety chains, Respondent has modified 

its coupling system so that it cannot meet the requirements 

of the mandatory safety standard. Several cases have held 

a violation in similar circumstances. See, e.g., Pittsburgh 

Coal Company v. Secretary of Labor, 1 FMSHRC 1468 (1979); 

and Mathies Coal Company v. Secretary of Labor, 2 FMSHRC 

1661 (Judge Melick, 1981) . 

2242 
Respondent contends that this application of the standard 

will disminish safety by requiring abandonment of the safety 

chains. But this argument does not address other feasible means 

of supplementing automatic couplers on personnel cars, e.g., 

chains or wire -ropes on the sides of cars, which would not 

violate § 75.1405. Moreover, it is addressed to the wrong 

forum. Petitions for modification of the appl·ication of 

a safety standard should be filed with the Labor Department, 

under section lOl(c) of the Act. 

I find that Respondent was negligent, in that the violation 

condition was known by Respondent and could have been prevented 

by the exercise of reasonable care. I also find that this is 

a serious violation. There is a risk of serious injury or 

death in the event a person is handling the chain or reaching 

in between the cars when the train is inadvertently moved. 

Considering these factors, and Respondent's size, history of 

compliance and prompt, good-faith abatement of the violation, 

I find that a civil penalty of $195 for this violation is 

appropriate. 

The Continuous Miner 

Inspector Shade testified that one of the dangers of 

operating the continuous miner with a defective tram was that 

the operator could not move out of the way of roof-falls in 

retreat mining. With a defective micro-switch, when the 

operator tried to tram to the right the circuit breaker 

would trip, and the whole machine would be de-energized. 

This defective condition could endanger the operator. He 

could retain the protection of the canopy if he could tram the 

machine away from falling roof, but would p~obably be tempted 

to run if the machine would not move, thus exposing himself to 

greater danger from the roof. 

Moving equipment that cannot be steered properly is not 

in safe operating condition. 

Respondent argues that MSHA cited a violation simply 

because Respondent could not guarantee that a new switch would 

not fail, and the safety standard does not require that the mine . 

operator guarantee that a repair will last for any specific period. 

Respondent misconstrues the purpose and application 

of the safety standard. The standard requires that 

equipment be "maintained in safe operating condition" 

and if it is "in unsafe condition it shall be removed from service 

immediately." When the circuit breaker tripped, soon after 

2243 
the beginning of the shift, Respondent knew that the continuous 

miner could not tram to the right. That is why the ;nachine was 

backed up and left 2 blocks from the face. I find that the 

defective condition (inability to tram to the right and causing 

de-energizing of the whole machine by attempting to tram to the 

right) was an "unsafe" operating condition. Respondent was 

required to remove the machine from service until the switch 

could be replaced or adjusted. This could have been done by 

de-energizing the machine and tagging it out of service pending 

repairs. However, Respondent left it parked and energized, so 

that another machine operator might operate the machine in a 

defective condition. 

I find that Respondent was negligent, in that the unsafe 

condition was known by Respondent and the violation could have 

been prevented by removing the machine from service pending 

repairs. This was a serious violation, because of the risk of 

serious injury if the machine were operated with a defective 

tramming system. Considering these factors and Respondent's 

size, compliance history, and prompt, good-faith abatement of 

the violation, I find that a civil penalty of $100 for this 

violation is appropriate. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction over the parties and 

the subject matter of the above proceedings. 

2. Respondent violated 30 CFR 75.1405 as charged and is 

ASSESSED a civil penalty of $195 for this violation. 

3. Respondent violated 30 CFR 75.1725(a) as charged and 

is ASSESSED a civil penalty of $100 for this violation. 

Proposed findings of fact or conclusions of law inconsistent 

with the above are rejected. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

above assessed civil penalties, in the amount of $295.00, within 

30 days from the date of this decision. 

Distribution: 

tJ~ 1-tVUi/b'LWilliam Fauver 

Administrative Law Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

December 28, 1983 

,SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MONTEREY COAL COMPANY, 

Respondent 

Docket No. HOPE 79-323-P 

A.C. No. 46-05121-03008F 

Wayne Mine 

DECISION GRANTING 

SECRETARY'S MOTI.ON TO AMEND 

AND 

DENYING RESPONDENT'S 

MOTION TO DISMISS 

Before: Judge Fauver 

The Secretary has moved (1) to amend his petit,i,on for 

assessment to include as a party respondent Frontier-Kemper 

Constructors, Inc., an independent contractor, and (2) to 

amend Exhibit A of his petition for assessment to cite a 

violation of 30 CFR 77.1900-7 instead of 30 CFR 77-1900-1. 

Part (2) of the motion is intended to correct a clerical 

error, and it conforms to the original § 107{a) imminent 

danger order an which the petition is based. No prejudice 

will result from allowing this technical amendment. 

Accordingly, part (2) of the Secretary's motion will be granted. 

~espondent moves to dismiss this proceeding on the ground 

that Respondent is not a proper party respondent. It also 

opposes the Secretary's motion to amend to include FrontierKemper as a respondent. 

Frontier-Kemper opposes the Secret&ry's motion to amend 

to include it as a respondent, on the ground that the Commission 

has no jurisdiction to include Frontier-Kemper because it was 

never issued a citation or order as the basis ·for this civil 

penalty proceeding. 

2245 
DISCUSSION 

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

et seq., became effective on March 9, 1978. The Act expands the 

definition of "operator" beyond the 1969 Mine Act to include "any 

independent contractor performing services or construction [at a 

mine]." 30 U.S.C. § 802(d). The charges in this case were 

issued to Monterey in a § 107 imminent danger order on May 8, 1978. 

At that time it was the policy of MSHA to cite owner-operators 

such as Monterey for violations caused by the acts of independent 

contractors. This policy was-upheld in a number of court and 

Commission decisions. See, e.g., Bituminous Coal Operators 

Association v. Secretary of Interior, 547 F. 2d 240 (4th Cir. 

1977) ;_Cyprus.Industrial Minerals Company v. FMSHRC, 664 F. 2d 1116 

(9th Cir. 1981); Old Ben Coal Co., 1 FMSHRC 1480 (1979) 1 aff'd, 

No. 79-2367, D.C. Cir., January 6, 1981; and U.S. Steel Corporation, 

4 FMSHRC 163 (1982). 

In explaining the basis for its decision in the Old Ben 

case, the Commission stated in Phillips Uranium Corporation, 

4 FMSHRC 549 (1982) : 

In our decision in Old-Ben Coal Co., we emphasized 

that, although an owner-operator can be held responsible 

without fault for a violation of the Act committed by 

its contractor, the Secretary's decision to proceed 

against an owner for such a violation is not insulated 

from Commission review. 1 FMSHRC at 1483-1484. For 

the reasons stated in Old Ben we hold that the 

Commission may review the Secretary's decision in these 

cases to proceed against Phillips. 

The test applied by the Commission in reviewing 

the Secretary's choice is "whether the Secretary's 

decision to proceed against an owner for a contractor's 

violation was made for reasons consistent with the 

purposes and policies of the 1977 Act." 1 FMSHRC 

at 1485. Our upholding of the Secretary's choice in 

Old-Ben, albeit with considerable doubts expressed as 

to the wisdom thereof, was largely based on the 

particular chronology of events in that case. The 

citation in Old Ben was issued only thirty-four days 

after the 1977 Mine Act had taken effect. 1 FMSHRC 1486 

1486 n.7. Recognizing that responsibility for 

enforcement of the nation.' s mine safety program had 

only recently been transferred to the Department of 

Labor from the Department of Interior, we found that 

the Secretary's decision to cite Old Ben under an 

"interim" agency-wide policy to proceed oniy against 

owner-operators was, at least at that early stage, a 

decision not inconsistent with the purposes and 

policies of the 1977 Act. 

2246 
On July 1, 1980, the Secretary published a rule changing 

his enforcement policy. Under the new policy, independent 

contractors may be cited for their own violations and in 

certain cases the "production-operator" may be cited instead 

of or in addition to the independent contractor. 45 Fed. Reg. 

44494-44498. 

The facts in the present case place them fundamentally in 

the same light as the Old Ben case. The order was ·issued to 

Monterey less than 2 months after the effective date of the 

1977 Mine Act. In line with the Commission's holding in 

Old-Ben, I find that the Secretary's decision to cite 

Monterey under an "interim" agency-wide policy to proceed 

only against owner-operators was, at least at that early date, 

"a decision not inconsistent with the purposes and policies of 

the 1977 Act." Accordingly, Monterey's motion to dismiss 

should be denied. 

Considering the long stay of this proceeding pending 

Monterey's appeals on the issue whether Monterey is a proper 

party, I find that the Secretary's motion to join the independent 

contractor as a respondent is not barred by estoppel and is not 

prejudicial to either Monterey or Frontier-Kemper. Both 

companies are presumed to have been aware of the specific charges 

and factal contentions in the § 107 order since its issuance in 

May 1978. First, the order was issued to Monterey, and in its 

answer to the petition for assessment of civil penalties, 

Monterey alleged that if there was a violation it was committed 

by Frontier-Kempler as an independent contractor. Second, the 

close contractual relationship between Monterey and FrontierKemper warrants the presumption that Frontier_.Kempler has been on 

notice, since May 1978, that is contract performance in May 1978 

is the subject of the MSHA charges against Monterey. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The Secretary's motion to amend is GRANTED and he shall 

have 15 days from this decision to file the amendments to his 

petition. 

2. Monterey's motion to dismiss is DENIED. 

Distribution: 

16)·11 _ ·_ ·-:r-~v~ ~auver 

Administrative Law Judge 
Robert Cohen, Esq., U.S. Department of Labor, Office of the 

Solicitor, · 4015 Wilson Boul·evard, Arlington, Virginia 22203 

(Certified Mail) 

Kenneth c. Minter, Esq., P.O. Box 2180, 1305 Dresser Tower, 

Houston, Texas 77001 (Certified Mail) 

Timothy Biddle, Esq., Croswell & Moring, 1110 Connecticut 

Avenue, N.W., Washington, D.C. 20036 (Certified Mail) 

William H. Howe, Esq., Loomis, Owens, :Fellman·& Howe, 2020 

K Street, N.W., Washington, D.C. 20006 (Certified Mail) 

2248