DECEMBER 1984 

Commission Orders 

12-03-84 

12-10-84 

12-21-84 

Kitt Energy Corporation 

Maben Energy Corporation 

Lonnie Jones v. D&R Contractors 

Administrative Law Judge Decisions 

12-03-84 

12-03-84 

12-03-84 

12-10-84 

12-10-84 

12-12-84 

12-13-84 

12-13-84 

12-14-84 

12-19-84 

12-19-84 

12-19-84 

12-19-84 

Rob Coal Company, Inc. 

Locke's Quarry, Inc. 

Jim Walter Resources, Inc. 

Carey Salt, Div. of Processed Minerals, Inc. 

Carolina Stalite Company 

Price Construction, Inc. 

NACCO Mining Company 

MSHA for Robt. Ribel v. Eastern Assoc. Coal 

Peabody Coal Company 

O'Brien Rock Company, Inc. 

Steve Lewis v. Leeco Corporation 

Jeffrey Fankhauser v. GEX Hardy, Inc. 

Windsor Power House Coal Co., Price River 

Coal Company & Southern Ohio Coal Co. 

WEVA 83-125-R 

WEVA 84-200 

KENT 83-257-D(A) 

PENN 84-187 

SE 84-26-M 

SE 84-57 

CENT 84-67-M 

SE 80-21-M 

CENT 84-45-M 

LAKE 84-60-R 

WEVA 84-33-D 

KENT 84-149 

CENT 84-42-M 

KENT 83-279-D 

LAKE 84-87-D 

WEVA 82-303 

Pg. 2707 

Pg. 2708 

Pg. 2709 

Pg. 2711 

Pg. 2717 

Pg. 2723 

Pg. 2724 

Pg. 2727 

Pg. 2731 

Pg. 2734 

Pg. 2744 

Pg. 2764 

Pg. 2768 

Pg. 2770 

Pg. 2771 

Pg. 2773 

DECEMBER 

The following case was directed for review during the month of December: 

Secretary of Labor on behalf of I. B. Acton and UMWA v. Jim Walter Resources, 

Inc., Docket No. SE 84-31-D, etc. (Judge Melick, November 19, 1984). 

The following cases were denied review during the month of December: 

Secretary of Labor, MSHA v. Pyro Mining Company, Docket No. KENT 83-212. 

(Judge Fauver, October 25, 1984). 

Secretary of Labor, MSHA v. United States Steel Corporation, Docket Nos. 

LAKE 82-6-RM, LAKE 82-35-M. (Judge Broderick, November 9, 1984). 

COMMISSION ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 3, 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KITT ENERGY CORPORATION 

Docket No. WEVA 83-125-R 

ORDER 

On November 5, 1984 the Secretary of Labor filed a petition for 

discretionary review and motion for Summary Disposition of Appeal. On 

November 13, 1984 the petition was granted and briefing was stayed pending 

a Kitt Energy Corporation response to the Secretary's motion for Summary 

Disposition of Appeal. No response to the Secretary's motion was filed 

by Kitt Energy Corporation. 

The motion of the Secretary of Labor for Sununary Disposition of Appeal 

is granted and the case is remanded to the presiding administrative law 

judge for further consideration and ruling in view of the arguments raised 

by the Secretary before the Commission. The judge may, at his discretion, 

require the parties to submit additional evidence or briefs. 

Richard V. Backley, A~n· ) 

Y.L7~ L. Clair Nelson, Corrunissioner 

2707 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MABEN ENERGY CORP. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 10, 1984 

ORDER 

Docket nos. WEVA 84-200 

WEVA 84-308 

On November 21, 1984, the presiding Commission administrative law 

judge issued a decision approving settlement in this case. On December 

4, 1984, the judge filed a statement with the Commission requesting that 

the Commission return this proceeding to his jurisdiction, pursuant to 

Commission Procedural Rule 65(c), 30 C.F.R. § 2700.65(c), for the 

correction of "clerical mistakes and errors arising from oversight or 

omission" in the decision. The judge's request is granted and this case 

is returned to his jurisdiction for appropriate correction. 

Richard V. Backley, ActiTlgCfulirTllas---

Commissioner 

2~'08 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 21, 1984 

LONNIE JONES 

v. Docket No. KENT 83-257-D(A) 

D&R CONTRACTORS. 

ORDER 

On November 21, 1984, the Commission granted the timely petition 

for discretionary review filed by respondent D&R Contractors. On 

December 5, 1984, counsel for complainant Lonnie Jones filed a motion to 

reconsider and vacate the Commission's direction for review. As the 

basis for this motion, counsel 

complainant's previously filed 

treat complainant's opposition 

motion for reconsideration. 1/ 

reconsideration, complainant1 s 

review is denied. 

requests the Commission to consider 

opposition to D&R's petition. We will 

as a memorandum in support of his present 

Upon consideration of the motion for 

request for vacation of the direction for 

Richard 

~~ V. Backley, Acting Chairman 

1/ Commission Procedural Rule 70(e), 29 C.F.R. § 2700.70(e), permits 

the filing of oppositions to petitions for discretionary review, but 

states that "such filing shall in no way delay Commission action on the 

petition." Thus, the Commission may grant a petition, as it did here, 

without awaiting the possible submission of an opposition. Oppositions 

to petitions must also be filed within 40 days from the date of the 

administrative law judge's decision concerning which review has been 

timely sought. 30 U.S.C. § 823(d)(l); Commission Procedural Rule 70(g), 

29 C.F.R. § 2700.70(g). We note that in this case, complainant's 

opposition was received by the Commissiqn on November 28, 1984, one day 

past the 40-day time limit from the judge's decision below. 

2,709 

ADMINISTRATIVE LAW JUDGE DECISIONS 

fEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC:; 

,ECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ROB COAL COMPANY, INC., 

Respondent 

DECISION 

Docket No. PENN 84-187 

A.C. No. 36-04151-03504 

Rob Strip Mine 

Appearances: David T. Bush, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Clarence Creel, President, Rob Coal Company, 

Kittanning, Pennsylvania, for Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns civil penalty proposals filed 

by the petitioner against the respondent pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 820(a), seeking civil penalty assessments in 

the amount of $40 for two alleged violations of mandatory 

surface mining health standard 30 C.F.R. § 71.208(a). 

The respondent filed a timely answer and contest, and 

pursuant to notice a hearing was held in Pittsburgh, Pennsylvania, 

on October 23, 1984, and the parties appeared and participated 

fully therein. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977; 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

2711 
Stipulations 

The parties agreed that the mine in question is subject 

to the Act and that the presiding judge has jurisdiction 

to hear and decide this case. They also agreed that the 

respondent is a small mine operator and that the Rob Mine is a 

small strip mining operation employing a total of three 

miners (Tr. 6-8). 

Petitioner's counsel asserted that the respondent's 

total history of prior citations consists of two prior 

"single penalty" violations for which the respondent paid 

$40 in civil penalties. Counsel also asserted that the two 

citations in issue in this case involved a low degree of 

negligence and gravity, and that since no further action was 

required to be taken by the respondent to achieve compliance, 

the issue of timely abatement is not relevant to any civil 

penalty determination (Tr. 8-10). 

Discussion 

The two section 104(a) non-"S&S" citations in question 

in this case were issued on May 11, 1984. Citation No. 9951272, 

charges the respondent with failing to take a valid respirable 

dust sample during the February-March 1984 bimonthly sampling 

cycle on designated work position 001-0-368. Citation No. 

9951273, charges the respondent with failing to take a valid 

sample during the same sampling cycle on designated work 

position 001-0-382. 

30 C.F.R. § 71-208(a) provides in pertinent part as 

follows: 

Each operator shall take one valid 

respirable dust sample from each 

designated work position during each 

bimonthly period beginning with the 

bimonthly period of February 1, 1981. 

The bimonthly periods are: 

February 1 - March 31 

* * * * 

For purposes of Part 71, of MSHA's mandatory health 

standards for surface coal mines, the term "valid respirable 

dust sample" is defined by section 71.2(r), as ''a respirable 

dust sample collected and submitted as required by this part, 

and not voided by MSHA." (Emphasis supplied.) 

2712 
Petitioner's Testimony and Evidence 

MSHA Inspector Gerald F. Moody confirmed that he issued 

the citations in this case, and he stated that they were based 

on information received from MSHA's computer (exhibits G-1 

and G-2). Mr. Moody explained that the information that is 

used to support the citation is gathered by MSHA's district 

office and that he simply signs the citation forms because 

the person who prepares the noncompliance data is not an 

inspector authorized to issue citations (Tr. 10-14). 

Nancy MacCumbee, Inspection Compliance Clerk, MSHA 

Monroeville District Office, testified that she is responsible 

for monitoring the surface and underground respirable dust 

reporting program for the mines in her district. She explained 

the procedures she follows in connection with the dust sample 

cassettes submitted by mine operators to her office. 

Mrs. MacCumbee explained that mine operators submit 

their respirable dust cassette samples by mail to MSHA's 

dust analysis laboratory in Pittsburgh. The operator is 

required to fill out a data card form along with the cassette, 

(exhibit G-4) . She stated that this is a new form which has 

been in use for about a year, and she identified exhibit G-5, 

as the old mine data card. These data cards are not MSHA 

forms, and they are supplied by the company which supplies 

the sampling cassettes to the mine operator. In the instant 

case, the cassettes and forms are supplied by the Bendix 

Company. 

Mrs. MacCumbee identified exhibit G-3, as an "Input 

Transaction Error Report," received in her office on 

April 2, 1984, and she explained that the form is generated 

by MSHA's computer center in Denver, Colorado. She confirmed 

that this particular report indicated that items 9 and 10 

on the dust data card submitted with the dust sample cassette 

by the respondent in this case were not filled out. Since 

the form was incomplete, the computer rejected the sample 

cassette as an invalid sample for designated ·work position 

368, Caterpillar dozer operator, and that is why she prepared 

Citation No. 9951272, for Mr. Moody's signature. She 

confirmed that a similar error report was received for 

designated work position 382, Fiat Allis Front-End Loader 

operator, and that is what prompted the issuance of 

Citation No. 9951273. 

Mrs. MacCumbee identified exhibit G-6, as a copy of 

a letter dated May 4, 1983, from MSHA's district manager, 
to the respondent explaining certain changes in the 

reporting requirements for respirable dust samples from 

designated work positions. She indicated that MSHA's district 

off ice provided a training program for mine operators in 

the district to explain the new procedures for submitting 

the data required with the dust sampling devices. 

Mrs. MacCumbee confirmed that both of the citations 

issued in this. case were the result of the failure by the 

respondent to fill out items 9 and 10 on the new data form. 

Since the computer which scans this data did not pick up 

the information, it rejected the cassettes which were 

submitted as "invalid," and that is what triggered the issuance 

of the citations by her office. She explained further that 

if the respondent submitted the old data form with the cassettes, 

the "computer rejection" result would be the same since the 

old card forrn does not utilize coded items 9 and 10 as shown 

on the new forms. She indicated that mine operators were 

instructed to submit the new data cards along with any old 

forms still in use, and that in this case this was apparently 

not done (Tr. 20-35). 

Respondent's Testimony and Evidence 

Clarence Creel, the owner and operator of the mine in 

this case, confirmed that he was issued a prior citation 

for an invalid dust sample at the mine. However, he 

explained that the initial sample had become contaminated 

with dirt, and that an MSHA inspector advised him "to forget 

it," and to submit a new sample. Although he submitted another 

sample which indicated that he was in compliance, the first 

sample was rejected, and as a result, he received a citation. 

He decided to pay the assessment rather than to contest the 

citation, and since that time he has been on a regular sampling 

cycle. He claimed that he has been unable to convince MSHA's 

district office that since that episode, he has always been 

in compliance with the respirable dust requirements. Under 

the circumstances, he decided to contest the instant two 

citations rather than pay the proposed assessments (Tr. 40-41). 

Mr. Creel testified that when he submitted the two dust 

samples which are in issue in this case he filled out the 

data cards which were with the sample cassettes supplied 

to him by the Bendix Company, the supplier. He confirmed 

that he was not furnished a supply of new data cards until 

after the citations were issued (Tr. 46). He also confirmed 

that he does his own sampling, and that after filling out 

the data cards, he mailed the cassettes and cards to MSHA 

in a self-addressed container provided for that purpose 

(Tr. 48-49). 

2.714 
Findings and Conclusions 

The facts presented in this case reflect that the 

respondent took the two samples in question and submitted 

them to the appropriate MSHA off ice as required by the 

reaulations. However, since the respondent used an old data card 

fo~m when he submitted the samples, they were voided by the 

computer because some of the information required to be 

submitted on the new form was not programmed, and the computer 

could not process the data reflected on the old card. 

MSHA's counsel conceded that the citations resulted 

from the respondent's use of old data cards when he submitted 

the required samples. Since the old cards do not provide 

for the submission of the kinds of information required by 

the new data cards, the samples were rejected by the computer 

as being invalid under MSHA's definition of the term 

"valid samples." Counsel also conceded that the citations 

here do not concern a matter of noncompliance with the 

respirable dust level requirements, but only with the respondent's 

failure to submit "valid" samples. Counsel agreed that nominal 

civil penalties are in order for the citations (Tr. 47-50). 

I conclude and find that the petitioner has established 

the fact of violation as to both citations and they are affirmed. 

However, I have considered the fact that the citations were 

triggered by a computer which rejected and invalidated the 

dust samples which the respondent submitted because the data 

accompanying the samples was incomplete. Under the circumstances, 

I conclude that there are facts presented here which strongly 

mitigate any civil penalty assessed for the two citations. 

Gravity 

I conclude and find that the violations here are nonserious. 

Negligence 

Although respondent is presumed to know that he was 

required to submit new data cards with his samples, he denied 

that this was ever brought to his attention during any ~SHA 

training sessions he may have attended. Having viewed the 

respondent on the stand during his testimony, I found him 

to be an honest and straightforward witness, and I believe 

his assertions that he was somewhat confused over why he 

was still required to submit dust samples. Although MSHA 

produced a co:mrnunication dated May 4, 1983, addressed to 

Mr. Creel advising him of the new dust reporting procedures, 

I find Mr. Creel's explanation as to why he used his old 

supply of data cards to be credible mitigation of his negligence 

in this case. Accordingly, I conclude that the violations 

resulted from a low degree of negligence on his part. 

2715 
Good Faith Compliance 

This factor is inapplicable to the facts of this case. 

MSHA conceded that since the bimonthly sampling had already 

passed at the tine the citations were issued, there was no 

way for the respondent to abate the citations. The record 

here supports a conclusion that the respondent has an 

excellent compliance record, and I have taken this into 

consideration in assessing the civil penalties for the two 

citations in question. 

Size of Business and Effect of Civil Penalties on the Respondent's 

Ability to Continue in Business 

I conclude and find that the respondent is a small mine 

operator and that the penalties assessed will not adversely 

affect its ability to continue in business. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) 

of the Act, I conclude and find that civil penalties in 

the amount of $5 for each of the two citations are appropriate 

in this case. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the 

a:-:tount of $10 for the two citations in question, and payment 

is to be made to MSHA within thirty ( 3 O )- days of the date 

of this decision. Upon receipt of payrnent, this case is 

dis::lissed. 

---~/ ?~// -

1Georg/ 

//jl_/ifr,( A. cl 

'Kou ~;~ ras 

Administrative Law Judge 

Distribution: 

David T. Bush, Esq., U.S. Depart::lent of Labor, Office of the 

Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Mr. Clarence Creel, President, Rob Coal Co., Inc., RD #4, 

Kittannin;, PA 16201 (Certified Mail) 

I 1 ' s .L."( 
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 

ADMDHSTRATION (MSHA) , 

Petitioner 

v. 

LOCKE'S QUARRY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 84-26-M 

A.C. No. 09-00727-05501 

Locke's Quarry, Inc. 

SUMMARY DECISION 

Before: Judge Koutras 

Statement of the Case 

This case concerns a civil penalty proposal initiated 

by the petitioner against the respondent pursuant to 

section llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 820(a), seeking civil penalty assessments 

for two alleged violations of mandatory safety standard 30 

C.F.R. § 56.12-13(b). The proposals seek a penalty 

assessment of $98 for section 104(a) Citation No. 2243929, 

issued by an MSHA inspector on October 25, 1983, and a $20 

penalty for Citation No. 2243931, issued that same day. 

The inspector found· that the first violation was "significant 

and substantial," and that the second one was not. 

Respondent, by and through its counsel, filed an answer 

to the petitioner's civil penalty proposals, and while it 

did not dispute the fact that the violations in question 

occurred, it did take issue with the inspector's "significant 

and substantial" finding concerning Citation No. 2243929. 

However, respondent's counsel stated that respondent did not 

desire a hearing, and he explained that the respondent simply 

wanted to make it known that the proposed civil penalties 

in the amount of $118 are disproportionate for the violations 

in question. 

In view of the respondent's answer, and in particular 

the fact that it did not contest the fact of violations and 

indicated that it did not desire a hearing, I issued an Order 

r\ ..... j 7 . :: { . 
on September 18, 1984, directing the parties to show cause 

as to why this case should not be disposed of by sumrnary 

decision. I also afforded the parties an opportunity to 

file further written arguments with me in support of their 

respective positions. 

By motion filed October 22, 1984, counsel for the 

petitioner filed a motion for summary decision, with supporting 

arguments and .information concerning the six statutory 

criteria found in section llO(i) of the Act. Respondent 

has not responded to my order, nor has it filed any response 

or opposition to the motion filed by the petitioner. Under 

the circumstances, I conclude and find that the respondent 

has waived its right to file further arguments with me, and 

I will summarily decide this case on the basis of the pleadings 

of record, including the petitioner's motion for summary decision, 

with supporting arguments. 

Findings and Conclusions 

I take note of the fact that the respondent does not 

dispute the fact that on October 25, 1983, it was served 

with Citations 2243929 and 2243931 for violations of 

mandatory safety standard 30 C.F.R. § 56.12-13(b), which 

provides as follows: 

§ 56.12-13 Mandatory. Permanent splices 

and repairs made in power cables, including 

the ground conductor where provided, shall 

be: (2) Mechanically strong with electrical 

conductivity as near as possible to that of 

the original; (b) Insulated to a degree at 

least equal to that of the original, and 

sealed to exclude moisture; and (c) Provided 

with damage protection as near as possible 

to that of the original, including good bonding 

to the outer jacket. 

Section 104(a), "S&S" Citation No. 2243929, describes the 

cited condition or practice as follows: 

There was a defective splice in the 110 volt 

power cable for the quarry flood light. 

The splice was not insulated to a degree at 

least equal to that of the original and sealed 

to exclude moisture. The defective splice 

was located in an area where quarry personnel 

have to be regularly. 

2~-'18 
. . Section 104(a), non-"S&S" Citation No. 2243931, describes 

the cited condition or practice as follows: 

There were several defective splices in 

the 110 volt power extension cable at the 

compressor building. The splices were 

not insulated to a degree at least equal 

to that of the original and sealed to 

exclude moisture. 

Fact of Violations 

Included as part of the arguments in support of its case, 

the petitioner has filed a sworn affidavit executed by the 

inspector who issued the citations in question in this case. 

After careful review of this affidavit, including a full 

explanation by the inspector, I conclude and find that the 

petitioner has established the fact of violation as to both 

citations, and they are AFFIRMED. 

In support of its ''single penalty assessment" of $20 

for Citation No. 20243931, the petitioner points out that 

while the 110 volt extension cable at the compressor building 

had several defective splices, it was in an area not readily 

accessible to employees, and there was only one employee 

who had the responsibility for turning the compressor on 

in the morning and off in the evening. Also, while there 

was loose tape wrapped around the bare wires, petitioner 

concludes that there was no evidence that this violation 

was reasonably likely to result in a serious injury and it 

was abated immediately upon notification. 

After consideration of the arguments presented by the 

petitioner, I adopt its proposed findings and conclusions 

with respect to this citation as my findings and conclusions, 

and they are affirmed. 

In support of the inspector's "significant and substantial" 

finding with respect to Citation No. 2243929, the petitioner 

asserts that Inspector Grabner observed that there were 

four employees exposed to the 110 volt energized wires located 

on top a handrailing used by employees to travel to and from 

the quarry. Petitioner argues that this exposure to the 

energized wires was regular and reoccurring, and that if 

the exposed wires were contacted by the employee~ serious 

injury or death could have resulted from the 110 volts. In 

support of this conclusion, the petitioner relies on Inspector 

Grabner's affidavit, and an attachment to that affidavit 

which is identified ·as an excerpt from Bureau of Mines 

"Monthly Safety Topic" discussion concerning low voltage 

electrical hazards. 

2719 
After.careful consideration of the record in support of 

the inspector's "significant and substantial" finding 

concerning Citation No. 2243929, and absant any input by 

the respondent, I conclude and find that the petitioner has 

established that there was a reasonable likelihood of an 

injury, and the inspector's finding in this regard IS 

AFFIRMED. 

History of Prior Citations 

Exhibit 3 submitted by the petitioner is a computer 

print-out reflecting the respondent's history of prior 

citation assessments for the period December 6, 1981, through 

December 5, 1983. The only citations listed are the ones 

which are contested in this case. Accordingly, for purposes 

of any civil penalty assessments made by me in this case, 

I have considered the fact that the respondent has no prior 

history of violations. 

Size of Business and Effect of Civil Penalties on the Respondent's 

Ability to Continue in Business 

The information submitted by the petitioner reflects 

that the respondent is a small mine operator, employing 

four employees who work less than 10,000 manhours a year. 

I therefore conclude that the respondent is a small operator, 

and in light of any information to the contrary, I further 

conclude that the civil penalties which I have imposed here 

will not adversely affect the respondent's ability to continue 

in business. 

Good Faith Abatement 

With regard to Citation No. 2243929, the record establishes 

that abatement was achieved within 15 minutes of the issuance 

of the citation, and that the defective power cable was 

removed from service. As for Citation No. 2243931, the 

record indicates that abatement was achieved the same day 

the citation issued, and that the respondent repaired the 

cited defective cabie splices. Further, the petitioner concedes 

that the respondent immediately replaced or repaired the cited 

cables on notification by the inspector. Accordingly, I 

conclude that the respondent gave immediate attention to 

th~ citations by rapidly correcting and abating the violations, 

and I have considered this in the civil penalties which 

have been assessed for the citations in question. 

Negligence 

I conclude and find that the record here establishes 

that both of the citations in issue resulted from the 

') .... ,11)0 _._ ~ /....., 
respondent's failure to exercise reasonable care, and that 

the violations are the result of ordinary negligence on 

the respondent's part. 

Gravity 

I conclude and find that the record here supports a 

finding that Citation No. 20243931 was nonserious, and that 

Citation No. 2243929, was serious. In the first instance, 

the inspector concluded that any exposure to a hazard was 

of very short duration, and that there was an attempt made 

to cover any exposed wires. As for the second citation, I 

agree with the inspector's evaluation that the hazard 

presented constituted a likelihood of injury to several 

employees. 

Civil Penalty Assessment 

I take note of the fact that during the initial civil 

penalty assessment procedure made by MSHA's Office of 

Assessments for Citation No. 2243929, the initial assessment 

was in the amount of $140, as computed by MSHA's penalty 

"point system." A further reduction after application of 

MSHA's penalty criteria, resulted in a reduction of the 

penalty to $98, and this is the assessment amount that the 

petitioner proposes in this case. Absent any further input 

by the respondent, I cannot conclude that this proposed 

civil penalty assessment is unreasonable. Accordingly, 

the petitioner's proposal is accepted, and I adopt it as my 

civil penalty assessment for this violation. 

With regard to Citation No. 2243931, petitioner's 

"single penalty" assessment of $20 seems reasonable in the 

circumstances, and I accept and adopt it as my civil penalty 

assessment for this citation. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in 

the amount of $98 for Citation No. 2243929, and a civil 

penalty in the amount of $20 for Citation No. 2243931. 

Payment is to be made to MSHA within thirty (30) days of 

the date of this decision, and upon receipt of payment, 

this case is dismissed. 

, 

~~μfQ ~!rge A. Koutras 

Administrative Law Judge 

2721 
Distribution: 

Ken S. Welsch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1371 Peachtree St., N.E., Rm. 339, Atlanta, GA 

30309 (Certified Mail) 

Robert A. Johnson, Esq., Smith & Johnson, 5 Thomas St., 

Box 520, Elberton, GA 30635 (Certified Mail) 

/slk 

') ~ ~)''') 

,: ... ! ·~· (.., 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

DEC 3 1984 

SECRETARY Of LABOR, CIVIL PENALTY PROCEEDING MI~E SAFETY AND HEALTH ADMI~ISTRATION (MSHA), Docket No. SE 84-57 

Petitioner A. C. Ne. 01-00758-03592 

v. N c. 3 f'i in e 

JIM WALTER RESOURCES, INC., 

Respondent 

DECISION 

Before: Judge Merlin 

In lieu of a hearing, the parties submitted stipulations in 

the above-captioned case for a decision on the record. 

The parties stipulate that the condition or practice described in the citation occurred and that the belt described in 

the citation ~as a coal-carrying belt. The parties further agree 

that the decision in Jim Walter Resources, Inc., Docket No. 

SE 84-23 (July 30, i984) is controlling. I accept these 

stipulations. 

The decision in Docket No. SE 34-23 held that 30 C.F.R. 

§ 75.1403-S(g) does not apply to coal-carrying belt conveyors. 

Therefore, in light of the parties• stipulation that this case 

concerns a coal-carrying belt I find that there was no violation. 

Citation No. 2310851 is hereby VACATED. 

Paul r;ierlin 

Chief Administrative Law Judge 

Llistribution: 

George D. Palmer, Esq., Office of the Solicitor, U. S. Department 

of Labor, 1929 South Ninth Avenue, Birmingham, AL 35256 

(Certified Mail) 

Robert w. Pollard, Esq., Jim Walter Resources, Inc., P. G. Box 

C-79, Birmingham, AL 35283 (Certified Mail) 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W., 

Washington, DC 20006 (Certified Mail) 

/gl 2723 
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. 

CAREY SALT - D~VISION OF 

PROCESSED MINERALS, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 84-67-M 

A.C. No. 14-00412-05501 

Carey Rock Salt Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a civil penalty proposal 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 $4,000, for a violation of mandatory safety 

standard 30 C.F.R. § 57.9-20. 

The respondent filed a timely answer contesting the 

violation, and the case was scheduled for hearing in Witchita, 

Kansas, on November 27, 1984. However, by joint motion filed 

by the parties pursuant to Commission Rule 30, 29 C.F.R. 

§ 2700.30, they seek my approval of a proposed settlement 

of the case, the terms of which include an agreement by the 

respondent to pay a civil penalty in the amount of $3,000, 

for the violation in question. 

Discussion 

In support of the proposed settlement disposition of 

this case, the parties have submitted a full discussion of 

the six statutory criteria found in section llO(i) of the 

Act. The parties state that the respondent is a small 

operator engaged in the operation of an underground salt mine 

and that the settlement amount is appropriate to the size of 
the operation and will not affect the respondent's ability 

to continue in business. The parties also state that the 

respondent has a good compliance history and abated the 

violation within a reasonable period of time. 

The parties are in agreement that the gravity of the 

violation was serious, and that the violation contributed 

to an accident. According to the information in the pleadings 

filed by the petitioner, the citation was issued because four 

railroad cars, parked on a spur track east of the mill loading 

dock, were not blocked by a positive action stopblock as 

required by section 57.9-20. The four parked cars ran off 

the spur track and struck three cars near the loading dock; 

these three cars, in turn, moved forward and crushed an 

employee against the car at the loading dock, causing fata~ 

injuries. The petitioner believes that had the cars on 

the spur track been securely blocked, the accident would not 

have occurred. 

In further support of the proposed settlement, the parties 

assert that several mitigating circumstances dictate that 

the degree of negligence be modified from moderate to low. 

The parties state that it had been the custom and practice 

of respondent to park railroad cars on the spur track and 

to use the parking (hand) brake on the railroad cars to 

keep them from moving. This practice was in effect prior to 

MSHA inspections and was not cited. The parties also state 

that it is probable that some moisture accumulated around 

the brake shoe which froze and then thawed out, thereby 

contributing to the brake not holding. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find 

that the proposed settlement disposition is reasonable and 

in the public interest. Accordingly, pursuant to 29 C.F.R. 

§ 2700.30, the motion IS GRANTED and the settlement IS APPROVED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in 

the amount of $3,000, in satisfaction of the violation in 

question, and payment is to be made to the petitioner within 

thirty (30) days of the date of this decision and order. Upon 

receipt of payment, this case is DISMISSED. 

'79~ ... ....,,v 
Distribution: 

Robert s. Bass, Esq., U.S. Department of Labor, Office of 

the Solicitor, Rm. 2106, 911 Walnut St., Kansas City, MO 

64106 (Certified Mail) 

William B. Swearer, Esq., Martindell, Carey, Hunter & Dunn, 

400 Wilsy Bldg., P.O. Box 1907, Hutchinson, KS 67504-1907 

(Certified Mail) 

/slk 

2728 
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. 

CAROLINA STALITE COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 80-21-M 

A.O. No. 31-00136-05001 I 

Docket No. SE 80-61-M 

A.O. No. 31-00136-05015 

Docket No. SE 80-73-M 

A.O. No. 31-00136-05016 

Docket No. SE 80-79-M 

A.O. No. 31-00136-05017 

Docket No. 81-6-M 

A.O. No. 31-00136-05018 

Stalite Mill 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

The parties have reached a settlement of the nine 

violations involved in these five dockets in the total 

sum of $2000.00. MSHA's initial assessment therefor 

was $2587.00. 

The terms of the settlement are as follows: 

Citation No. Original Assessment Settlement 

SE 80-21-M 

00104454 $1,200 $ 920 

SE 80-61-M 

00104519 $ 150 $ 115 
Citation No. 

SE 80-73-M 

00105537 

00105538 

00110905 

00110906 

SE 80-29-M 

00105539 

00110904 

SE 81-6-M 

00105507 

Original Assessment 

$ 210 

210 

195 

122 

$ 160 

180 

$ 160 

Settlement 

$ 165 

165 

150 

90 

$ 130 

140 

$ 125 

The settlement appears reasonable and is approved. It 

should be initially noted that no fatalities resulted from 

any violation and that Respondent apparently abated the 

violative conditions in good faith and timely fashion after 

notification thereof. Also, at the time of issuance of the 

citations Respondent, according to the parties, was a 

"moderate-sized" operator employing approximately 48 employees 

for 118,000 manhours per year in milling light-weight aggregate. 

The joint motion submitted by the parties indicates inter 

alia that: 

1. Citation No. 00104454 involved an accident in 

which a crushing plant laborer who was not wearing a safety 

belt and line allegedly fell 40 feet from the edge of a silo. 

Instead of a safety belt, the miner had wrapped a rope around 

his body. However, the fall actually was not 40 feet because 

the crushed stalite material slopped up toward the top of 

the silo and the miner received only minor injuries and 

was immediately pulled out of the silo. The agreed-on 

penalty of $920 is found appropriate. 

2. Citation No. 00104519 was issued for a violation 

of 30 C.F.R. § 56.17-1. The inspector did not consider 

the light sufficient at the stairs going up to the preheaters 

and at the stockpile area. A proposed penalty reduction 

from $150 to $115 is found appropriate since the MSHA 

inspector considered the possibility of an accident occurring 

as "improbable," and because MSHA agrees that the Respondent 

should be given "good faith abatement" credit for immediately 

ordering and installing additional lighting. 
3. Citation No. 00105537, involving a violatior. of 

30 C.F.R. § 56.14-6, was issued because the guard on the 

tailpulley and the idlers on the No. 3 raw material conveyor 

were left open. According to the Solicitor, the mine 

operator checks this area daily and would testify (1) that 

it was not aware that the guard had been left open and (2) 

that it was not in that position when Respondent checked 

the area earlier on the day in question. Upon notification, 

Respondent immediately closed the guard. The agreed-on 

penalty of $165.00 is approved. 

4. Citation No. 00105538 (30 C.F.R. § 56.14-7) was 

issued because the tailpulley guard of the yellow discharge 

belt was not properly maintained in that the back portion 

of the guard had been bent, partially exposing a pinch point. 

According to the Solicitor, (1) this area is not regularly 

worked by employees, (2) Respondent was not aware that the 

condition presented any hazard, and (3) Respondent would 

testify that it believed the guard to be adequate. The 

proposed penalty of $165 is found appropriate. It also 

appears that immediately upon notification of the violation, 

Respondent bent the guard back into position. 

5.· Citation No. 00110905 was issued for a violation of 

30 C.F.R. § 56.9-37. A 930 Cat Loader was left unattended 

on a 5% grade without emergency brakes or wheels turned 

into a bank. The parties propose a penalty of $150 which 

is approved. Respondent contends that it was not aware of 

the violative condition and that such practice violated 

company policy. During an inspection the loader operator 

apparently left the loader to get a drink of water. 

6. Citation No. 00110906 was issued for a violation 

of 30 C.F.R. § 56.15-3 when a maintenance man was handling 

heavy metal objects without wearing protective footwear. 

The maintenance man had safety shoes but was not wearing 

them on the day in question. Respondent was not aware of 

the condition and company policy required the wearing 

of safety shoes. The agreed-on penalty of $90.00 is 

reasonable and approved. 

7. Citation No. 00105539, for violation of 30 C.F.R. 

§ 56.20-3, was issued because the elevated walkway was not 

kept clean. A 8" to 10'' build-up of material occurred. 

The walkway had handrails, and at the time of the inspection, 

Respondent was in the process of replacing the grates on 

the walkway to allow the material to pass more easily. 

Upon notification, Respondent immediately cleared the material 

from the walkway, thereby achieving prompt abatement. The 

reduction of $30.00 from the proposed penalty appears warranted 

and a pe11aity of $130.00 is approved. 

~?9 I -
8. Citation No. 00110904, for a violation of 30 

C.F.R. § 56.20-813, was issued because the toilet facilities 

were not kept clean and sanitary. A penalty of $140 for 

this violation is reasonable and approved since, upon 

notification of the violation, the toilet facility was cleaned 

and Respondent assigned an employee to the job on a regular 

basis. 

9. Citation No. 00105507, involving a violation of 

30 C.F.R. § 56.9-2, was issued because the 930 Cat Loader 

had no lights and was working in areas with insufficient 

lighting. Respondent was not aware that the loader was 

being used at night since another loader with lights was 

normally worked at night. There was sufficient lighting 

in the area, and upon notification, the loader was immediately 

taken out of service by Respondent and new lights installed. 

The agreed penalty of $125.00 is approved. 

ORDER 

Respondent, if it has not previously done so, is ordered 

to pay $2000.00 to the Secretary of Labor within 30 days 

from the date of this decision. 

Distribution: 

~:4-ee a-.~~/k. Michael A. Lasher, Jr. 

Administrative Law Judge 

James L. Stine, Esq., U.S. Department of Labor, Office of 

the Solicitor, 1371 Peachtree St., N.E., Atlanta, GA 30367 

(Certified Mail) 

William c. Kluttz, Jr., Esq., 506 West Innes Street, P.O. 

Drawer 1617, Salisbury, NC 28144 (Certified Mail) 

slk 

·~ ') 0 

: 0" 
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 (~SHA) , Petitioner 

v. 

PRICE CONSTRUCTION, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 84-45-M 

A.C. No. 41-02926-05502 

Crusher No. 2 Mine 

Appearances: Ronnie A. Howell, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

Petitioner; 

Bobby Price, Vice-President, Price Construction, 

Inc., Big Spring, Texas, for the Respondent. 

Before: Judge Koutras 

Statement of the Case 

This case concerns a civil penalty proposal initiated 

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 of 

$20 for an alleged violation of mandatory safety standard 

30 C.F.R. § 56.6-20(e). 

The respondent filed a timely answer and notice of 

contest and requested a hearing on the alleged violation. A 

hearing was convened in Big Spring, Texas, on November 13, 

1984, and the parties appeared pursuant to notice. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977; Pub. 

L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 
Stipulations 

The parties stipulated that exhibit P-1, is an MSHA 

computer print-out reflecting the respondent's history of 

prior violations for the period February 2, 1982 to 

February 14, 1984 (Tr. 8). The print-out reflects three 

prior citations for which the respondent paid civil penalty 

assessments totalling $119, and that none of the citations 

are repeat violations (Tr. 9). 

The parties agreed that the respondent is a small operator, 

and that it operates two mines engaged in the mining of a 

limestone crushed base material used for road construction. 

The mine in question employs approximately 18 miners and 

had an annual production of approximately 40,060 man-hours 

(Tr. 8-9) . 

The parties agreed that the respondent acted immediately 

in good faith and abated the cited condition on the same 

day on which it was pointed out to him (Tr. 9). 

Respondent also stipulated that payment of the civil 

penalty assessment for the violation in question will not 

adversely affect his ability to continue in business (Tr. 9). 

Discussion 

The respondent was cited for· failure to ground two 

metal constructed explosive magazines located at the site 

of one of his crushers. Information developed during the 

hearing indicates that the magazines were the property of 

a contractor who brought them to the site, and they were 

left as part of a lease arrangement (Tr. 13). The crusher 

has since been removed from the site and is no longer 

operational (Tr. 11). 

Respondent's vice-president, Bobby Pric~, confirmed that 

the crusher is no longer in operation, and he stated tbat 

he assumed that the magazines were properly grounded at 

the time they were delivered and installed at the site. He 

pointed out that the magazines are not in the possession 

of the respondent at all times (Tr. 13-14). 

Mr. Price indicated that this case was initially contested 

by the company safety director, and that he (Price) had only 

become personally involved on the day prior to the hearing. 

He conceded the fact of violation and indicated that he would 

like to dispose of the matter by paying the $20 proposed 

assessment. 
Petitioner's counsel asserted that the magazines in 

question were located approximately 200 yards away from 

the major mine operations, and that the inspection in question 

was the first visit to the site (Tr. 12). He also confirmed 

that abatement was achieved that same day, and that employee 

exposure to any hazard was minimal (Tr. 12). Counsel 

confirmed that upon consultation with the MSHA inspector 

who issued the citation, and who was present in the courtroom, 

the inspector would agree that the payment of the assessed 

civil penalty would be a reasonable compromise for the 

citation in question (Tr. 16). 

Findings and Conclusions 

After careful consideration of the facts in this case, 

including the six statutory criteria found in section llO(i) 

of the Act, and the arguments presented by the parties in 

support of their proposed disposition of this case, I rendered 

a bench decision finding a violation of section 56.6-20(e), 

and imposing a civil penalty of $20 for the violation. 

Although the respondent was negligent in permitting the 

violation to occur, I have considered the fact that the 

respondent is a small operator, has a good compliance record, 

and the fact that there was immediate abatement of the cited 

conditions. I have also considered the fact that the magazines 

were somewhat isolated from the other mining operation, and 

the lack of any evidence that there were any hazards presented 

by the cited conditions. My bench decision is hereby 

reaffirmed. 

ORDER 

The respondent IS 9RD~RED to pay a civil penalty in 

the amount of $20 within thirty (30) days of the date of this 

decision and order. Upon receipt of payment by the petitioner, 

this case is disrr.issed. 

Distribution: 

Ronnie A. Howell, Esq., U.S. Department of Labor, Office of 

the Solicitor, 555 Griffin Square, Suite 501, Dallas, TX 

75202 (Certified Mail) 

Mr. Bobby Price, Vice-President, Price Construction, Inc., 

Snyder Hwy., Box 1029, Big Spring, TX 79720 (Certified Mail) 

slk 

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·-- ' 'J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 ·1'C1R4 

THE NACCO MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

Intervenor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

THE NACCO MINING COMPANY, 

Respondent 

vV. 

CONTEST PROCEEDING 

Docket No. LAKE 84-60-R 

Citation No. 2206677; 2/29/84 

Docket No. LAKE 84-61-R 

Order No. 2206678; 2/29/84 

Docket No. LAKE 84-62-R 

Citation No. 2326373; 2/29/84 

Docket No. LAKE 84-63-R 

Order No. 2326374; 2/29/84 

Powhatan No. 6 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 84-79 

A. C. No. 33-01159-03599 

Powhatan No. 6 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Steffey 

Counsel for the parties filed on November 30, 1984, in the 

above-entitled consolidated proceeding a motion for approval of 

settlement. Under the parties' settlement agreement, The Nacco 

Mining Company (Nacco) has agreed to withdraw its notices of 

contest and Nacco has agreed to pay civil penalties totaling 

$40 for two alleged violations of section 103(f) of the Federal 

Mine Safety and Health Act of 1977, instead of the penalties 

totaling $360 proposed by MSHA. 

The issues involved in this proceeding relate to the issuance on February 29, 1984, of Citation Nos. 2206677 and 2326373 

alleging that Nacco had violated section 103(f) by refusing to 

allow persons selected by UMWA as miners' representatives to 

accompany two different inspectors who were engaged either in 

holding a close-out conference or in making an inspection. In 

each instance, the person designated to be the miners' representative was classified as a mechanic. Orders of withdrawal 

27.34 
were issued under section 104(b) of the Act when Nacco failed to 

allow the mechanics to accompany the inspectors in the performance of their work. The position taken by Nacco in its notices 

of contest was that UMWA was abusing its discretion to select 

miners' representatives by designating only miners having the job 

classification of "mechanic" as the representatives to aid the 

inspectors. Nacco did not object to UMWA's selecting miners' 

representatives to assist the inspectors, but claimed that UMWA's 

choosing of more than one employee from each job classification 

for that purpose unduly interfered with Nacco's ability to operate its mine safely, if at all, while inspections were being 

made. 

The parties engaged in extensive discovery procedures which 

culminated on August 15 and 16, 1984, when counsel for the parties took the depositions of 16 persons totaling 513 pages of 

transcript. A hearing had been scheduled to begin on October 23, 

1984. A copy of each deposition was mailed to me a short time 

prior to the hearing. After I had thoroughly reviewed the depositions, I issued on September 28, 1984, a procedural order which 

contained some findings of fact and conclusions based on the 16 

depositions. The parties' settlement agreement (page 4) provides 

for the findings and conclusions set forth in the procedural 

order to be made a part of my decision approving settlement. The 

pertinent part of the procedural order of September 28, 1984, is 

quoted below: 

I have carefully read and summarized the statements made 

by the 16 persons who gave depositions under oath and it 

is difficult for me to understand why any further testimony is required to decide the issues raised in this proceeding. The depositions clearly show that the union 

and Nacco's management came to an impasse after management denied Roger Hickman's request to transfer from the 

position of mechanic to the position of helper to the 

operator of a roof-bolting machine. The union did not 

insist on designating only mechanics as the miners' representatives to accompany inspectors pursuant to section 

103(f) of the Federal Mine Safety and Health Act of 1977 

until after management denied Hickman's grievance (Baker, 

p. 18; Hoskins, pp. 36-37; Houston, p. 17; Marozzi, pp. 12; 

22-24). 

It is also clear from the statements of both management and union deponents that the union's designation as 

representatives on a single shift of up to four miners 

regularly classified as mechanics and one named as a 

substitute' mechanic would have an adverse impact on safety 

and, if continued, would have curtailed both production 

and the ability to operate a safe mine (Kovacs, pp. 8-11; 

Clyde Reed, pp. 13-16; Vucelich, p. 25). 
It was the position of the inspectors that Nacco 

is required to operate a safe mine regardless of how 

many persons the union may designate as representatives 

for purposes of section 103(f) and they believed that it 

was both the union's and management's obligation to solve 

their differences without involving MSHA in their dispute 

(Facello, p. 7; Minear, p. 7; William Reed, pp. 8; 20, 30; 

33; Yudasz, pp. 15; 34; 38; Zitko, pp. 9; 18; 22). Both 

the union's and management's depositions show that the 

union and management ultimately did resolve their differences because management reversed its denial of Hickman's 

grievance and awarded him with the job he had requested 

after management had engaged in a 2-hour counseling session with Hickman and learned that the grant of his request would be in the best interest of all, management, 

the union, and Hickman (Baker, p. 15; Hoskins, p. 40; 

Marozzi, pp. 25-30). 

The depositions further show that management withdrew its written policy which restricted the selection 

of representatives to one representative from each job 

classification, and that the union, after the withdrawal 

of the written policy, has exercised reasonableness in 

designating representatives (Forrelli, pp. 10; 15-16; 

Marozzi, p. 36; Miller, p. 41). Moreover, the general 

superintendent stated that the policy should at least 

have allowed the union to designate two representatives 

from a single job classification, assuming that ·such a 

policy was necessary (Marozzi, p. 35). Nacco's president 

stated that the policy did restrict the union's right to 

designate representatives under section 103(f) of the Act 

(Mller, p. 38). Finally, the deposition of Josiah 

Hoskins, who seems to have been one of the primary designators of mechanics as miners' representatives, stated 

that Nacco is no longer restricting the union's selection of more than one representative from a given single 

job classification (Deposition, p. 46). 

The depositions also show that management did refuse 

to allow two of the three representatives designated by 

Hoskins on February 29, 1984, to accompany an inspector 

underground in one instance and to attend an inspector's 

close-out conference in another instance (Forrelli, p. 8; 

Yudasz, pp. 11; 38; Zitko, pp. 21; 24). So far as I can 

determine, section 103(f) does not permit me to consider 

equities in determining whether an inspector properly 

cites a violation of section 103(f) when a representative 

designated Ly the union is not permitted to accompany the 

inspector. Assuming, arguendo, that section 103(f) does 

permit me to consider the equities of management's refusal 

to allow representatives to ~ccompany Inspectors Yudasz 

2736 
and Zitko, neither the union nor management is entirely 

free from fault in the impasse which occurred after 

Hickman's grievance was denied. 

The union was at fault in using only mechanics as 

a means of pressuring Nacco's management to reverse its 

decision regarding Hickman's grievance (Hoskins, p. 36). 

Management was at fault for agreeing to give the union 

to March 2, 1984, to consider the unreasonableness of 

its position and then arbitrarily imposing the "one-repper-classification" rule on February 29, 1984, without 

giving the union until the agreed-upon date to reply to 

management's request made in the communications meeting 

held on February 27, 1984 (Marozzi, p. 41; Vucelich, 

p. 23). 

The parties also asked that their settlement agreement be 

made a part of my decision. The settlement agreement is set 

forth below: 

SETTLEMENT AGREEMENT 

This settlement agreement is made by and between 

The Nacco Mining Company ("Nacco"), the Mine Safety 

and Health Administration ("MSHA"), and the United 

Mine Workers of America ("UMWA") this 20th day of November 1984. 

WHEREAS a dispute arose between Nacco and UMWA on 

February 29, 1984, regarding UMWA's designation of 

walkaround personnel at Nacco's No. 6 Mine; and 

WHEREAS MSHA became involved in the dispute and 

issued two§ 104(a) citations, bearing numbers 2206677 

and 2326373 ("the Citations"), to Nacco, and subsequently issued two related§ 104(b) orders, bearing 

numbers 2206678 and 2326374 ("the Orders"), to Nacco, 

all for alleged violations by Nacco of § 103(f) of the 

Federal Mine Safety and Health Act ("the Act"); and 

WHEREAS Nacco formally contested the validity of 

the Citations and the Orders in Notice of Contest proceedings bearing Docket Nos. LAKE 84-60-R, LAKE 84-61-R, 

LAKE 84-62-R, and LAKE 84-63-R ("the contest proceedings"), which are currently pending before Administrative Law Judge Richard C. Steffey; and 

WHEREAS MSHA and UMWA are parties to the contest 

proceedings and have participated with Nacco in conducting 16 depositions of potential union, management, and 

MSHA witnesses; and 

2737 
WHEREAS Judge Steffey had conducted a detailed 

review of the transcripts of those depositions and 

issued a Procedural Order dated September 28, 1984 

("the Procedural Order") setting forth his findings of 

fact based on the deposition records; and 

WHEREAS the parties desire to settle the contest 

proceedings on an amicable basis and without need for 

further litigation; 

NOW, THEREFORE, in consideration of the mutual 

promises herein made and of the acts to be performed 

by the respective parties hereto, it is agreed as 

follows: 

1. Nacco shall withdraw its Notices of Contest 

in the contest proceedings. 

2. Judge Steffey has indicated his disposition 

to assess a civil penalty in the amount of $20 against 

Nacco for each of the Citations. No other penalties 

shall be sought or claims made against Nacco based on 

the Citations or the Orders. 

3. Nacco shall promptly pay the civil penalties 

to be assessed by Judge Steffey, as referred to in 

paragraph 2 of this agreement, in full settlement and 

compromise of the contest proceedings. By making that 

payment, Nacco does not admit that it committed any 

violation of law. Moreover, Nacco's payment shall be 

made without prejudice to, and with full reservation of, 

all rights and defenses of Nacco respecting the alleged 

violations for which payment is made insofar as the same 

may to any extent be involved in any further or other 

proceedings. 

4. Nacco acknowledges the right of UMWA under 

§ 103(f) of the Act to designate union walkaround representatives to accompany MSHA inspectors at the No. 6 

Mine. UMWA acknowledges that its designation of only 

mechanics as walkaround representatives at the No. 6 

Mine during the period from February 23, 1984, through 

February 29, 1984, was made for purposes unrelated to 

the Act's safety objectives and thereby constituted an 

inappropriate exercise of UMWA's designation right under§ 103(f). 

5. UMWA will hereafter exercise its § 103(f) 

designation right with reasonableness, having due regard for Nacco's safety and production objectives at 

the No. 6 Mine and endeavoring to avoid overuse of any 

2738 
single job classification, unless clear and present 

safety needs so require. UMWA specifically agrees 

hereafter to address such labor grievances as it may 

have under the provisions of its collective bargaining agreement with Nacco and without resort to § 103 

of the Act. Nacco will fully respect UMWA's reasonable exercise of its § 103(f) designation right. 

6. Nacco and UMWA shall notify their respective 

constituencies at the No. 6 Mine of the terms and 

conditions of this settlement agreement and of their 

individual and collective obligations to abide by 

those terms and conditions. 

7, The parties shall promptly move Judge Steffey 

to enter an order approving settlement of the contest 

proceedings on the basis of this agreement. This 

settlement is expressly conditioned on the entry of 

an Order by Judge Steffey which recites his findings 

of fact as set forth in the Procedural Order (see 

Annex 1) 1/ as well as incorporating the terms and 

conditions ~f this settlement agreement and directing 

the parties to comply with those terms and conditions. 

IN WITNESS WHEREOF the parties acknowledge, by 

signature of their respective counsel, their agreement 

this 20th day of November 1984. 

Mine Safety and Health 

Administration 

By:---'--/Z-~ __ 4 -~--- Robert A. Cohen 

United Mine Workers 

of America 

/). ~ 

By: {)tdl'-.1A/ 'f111j/w 

Thomas A. Myers 

The Nacco Mining Company 

1/ The settlement agreement submitted by the parties includes 

1n an Annex to the agreement a quotation of the language from 

the procedural order which I issued on September 28, 1984. I 

have already included in this decision the relevant portions 

of my procedural order and they need not be repeated. 

2739 
Although I gave some reasons in my procedural order of September 28, 1984, for my belief that a civil penalty of $20 would 

be appropriate for each of the alleged violations of section 

103(f), I believe that the Act requires me to give a fuller exposition of the six assessment criteria listed in section llO(i) 

of the Act than the one provided in my procedural order. The 

proposed assessment sheet in the official file in Docket No. 

LAKE 84-79 shows that MSHA's proposed penalty of $180 for each 

violation was derived after giving an appropriate evaluation of 

the six criteria on the basis of the limited facts which were 

available to MSHA at the time the proposed assessments were 

made. The assessment sheet shows that Nacco's No. 6 Mine produces about 1,075,000 tons of coal annually and that Nacco's 

controlling company produces over 14,000,000 tons of coal per 

year. MSHA applied those production figures under the assessment formula described in 30 C.F.R. § 100.3(b) and correctly 

assigned 13 penalty points under the criterion of the size of 

Nacco's business. 

The assessment sheet indicates that Nacco has been cited 

for 712 violations during 2,229 inspection days for the 24-month 

period preceding the writing of the two citations involved in 

this proceeding. Using the aforesaid statistics to make the 

calculation described in section 100.3(c) of MSHA's assessment 

formula results in the assignment of two penalty points under 

the criterion of Nacco's history of previous violations. 

There is no information in the official file, the pleadings, 

or the discovery materials pertaining to Nacco's financial condition. The Commission held in Sellersburg Stone Co., 5 FMSHRC 

287 (1983), aff'd. 736 F.2d 1147 (7th Cir. 1984), that if an 

operator fails to furnish any evidence concerning its financial 

condition, a judge may presume that the operator is able to pay 

penalties. Therefore, I find that payment of civil penalties 

will not adversely affect Nacco's ability to continue in business. Consequently, it will not be necessary to reduce the 

penalty, determined pursuant to the other criteria, under the 

criterion of whether the payment of penalties will ~ause respondent to discontinue in business. 

A brief discussion of the facts is required to evaluate 

the criteria of negligence and gravity. It is a fact that 

Nacco refused to allow two of the three mechanics designated 

by UMWA as miners' representatives to accompany inspectors 

(Forrelli, p. 8). On the other hand, Nacco did permit one 

mechanic to accompany an inspector as a miners' representative 

and Nacco's management was quite willing to permit miners from 

other job classifications to act as miners' representatives 

(Forrelli, pp. 7; 19), but the UMWA person who was designating 

miners' representatives declined to appoint any miners from 

other job classifications to act as miners' representatives 

when Nacco declined to allow two of the three mechanics to act 

2740 
as miners' representatives (Hoskins, p. 39). UMWA claims that 

miners from other job classifications had already gone underground and that no substitute representatives could be selected 

(Hoskins, p. 40), but Nacco's management disputes that contention (Forrelli, pp. 41-42). In any event, UMWA made no attempt 

to appoint substitute representatives and simply insisted that 

management allow three mechanics to act as miners' representatives to accompany three different inspectors (Hoskins, p. 39; 

Forrelli, p. 20). 

It is hardly surprising that Nacco took the intractable 

position that it did when one considers that on the previous 

day UMWA had named four regulay mechanics and one miner whom 

Nacco had asked to work as a substitute mechanic to be miners' 

representatives to accompany five different inspectors who were 

making a "saturation" inspection on that day (Forrelli, p. 24). 

Nacco's management on that day permitted UMWA to use as miners' 

representatives an extreme number of persons from a single job 

classification. When one is in possession of some of the extenuating circumstances associated with Nacco's refusal to allow more than one mechanic to act as miners' representatives 

on the day following UMWA's use of five mechanics for that purpose, it hardly seems appropriate to assess any portion of the 

penalty under the criterion of negligence since UMWA was using 

its right to designate miners' representatives as a means of 

putting pressure on Nacco's management to reverse a decision 

it had made in a grievance case filed by one of the miners who 

wanted to transfer from his position of mechanic to the position 

of helper to the operator of a roof-bolting machine (Marozzi, 

pp. 11-12). 

MSHA's proposed penalty of $180 results in large part from 

its having assigned 15 penalty points under the criterion of 

negligence. I believe that the unusual circumstances surrounding the citing of the violations warrant assignment of zero 

penalty points under the criterion of negligence. 

Both of MSHA's inspectors correctly considered that the 

alleged violations of section 103(f) were nonserious and MSHA's 

penalties were appropriately proposed by assignment of zero penalty points under the criterion of gravity. 

The final criterion to be considered is Nacco's good-faith 

effort to achieve rapid compliance after the violations were 

cited. It is a fact that Nacco refused to allow two of the 

three mechanics named as miners' representatives to act in that 

capacity. Since UMWA refused to name alternate miners' representatives, each inspector wrote a withdrawal order because of 

Nacco's refusal to abate the alleged violations within the time 

period established by the inspectors in their citations. If 

UMWA had named substitute miners' representatives in other job 

; . ..., ~41 ' 
classifications, the alleged violations would have been abated 

promptly and Nacco would have been given full credit for having 

shown a good-faith effort to achieve compliance. Inasmuch as 

both inspectors considered the violations to be nonserious, 

MSHA would have assigned penalties of only $20 for each violation 

under section 100.4 of MSHA's assessment procedures if the alleged violations had been abated within the time allowed by the 

inspectors. Therefore, MSHA's failure to find that Nacco had 

made a good-faith effort to achieve compliance caused MSHA to 

propose its penalties of $180 by using the assessment formula 

in section 100.3 instead of proposing $20 penalties under section 100.4. 

I believe that UMWA should share the blame for the fact 

that the alleged violations were not promptly abated. UMWA 

could have contested Nacco's refusal to allow mechanics to accompany the inspectors just as well if it had named substitute 

miners' representatives so that the provisions of section 103(f) 

could have been met by use of substitute miners' representatives 

selected from other job classifications. For that reason, I 

believe that the penalty should be assessed by assigning zero 

penalty points under the criterion of whether the operator demonstrated a good-faith effort to achieve rapid compliance. 

In short, since UMWA was equally at fault in bringing about 

the impasse which resulted in the issuance of the citations, I 

believe that assessment of more than token penalties in this 

instance would defeat the deterrent purposes envisioned by Congress for assessment of civil penalties. For the aforesaid 

reasons, I find that the parties' settlement agreement providing for the assessment of penalties of $20 for each violation 

should be approved and that the motion for approval of settlement should be granted. 

WHEREFORE, it is ordered: 

(A) The parties' motion for approval of settlement is 

granted and their settlement agreement is approved. 

(B) Pursuant to the parties' settlement agreement, The 

Nacco Mining Company, within 30 days from the date of this decision, shall pay civil penalties totaling $40.00 for the violations of section 103(f) alleged in Citation Nos. 2206677 and 

2326373 dated February 29, 1984. 

(C) The Nacco Mining Company's motion to withdraw its 

notices of contest is granted, the notices of contest are 

deemed to have been withdrawn, and all further proceedings in 

Docket Nos. LAKE 84-60-R through LAKE 84-63-R are dismissed. 

2742 
(D) Approval of the parties' settlement agreement is 

conditioned upon the parties' compliance wLth the terms and 

conditions of the agreement. 

Distribution: 

~ C.<:l-Tof1h Richard C. Steffey 

Administrative Law Judge 

John A. Macleod, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

NW, Washington, DC 20036 (Certified Mail) 

Robert A. Cohen, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Thomas M. Myers, Esq., Counsel for United Mine Workers of America, 

56000 Dilles Bottom, Shadyside, OH 43947 (Certified Mail) 

yh ~40 I ·u 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

rn:P .-; ~ 1gg4 ...,_li.ivl· · 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF· 

ROBERT RIBEL, 

Complainant 

v. 

EASTERN ASSOCIATED COAL 

CORP. I 

Respondent 

Docket No. WEVA 84-33-D 

MSHA Case No. MORG CD 83-18 

Federal No. 2 Mine 

ORDER DENYING ATTORNEY FEES 

ORDER AWARDING DAMAGES 

Statement of the Case 

On November 2, 1984, the Commission remanded this matter 

to me for the limited purpose of ruling on a motion filed 

by Mr. Ribel's private counsel, afier I decided the case 

on the merits, for an award of costs, expenses, and attorney's 

fees purportedly incurred by Mr. Ribel in connection with 

his discrimination complaint. 

My decision with respect to the merits of the discrimination 

complaint filed on Mr. Ribel's behalf by MSHA was issued 

on September 24, 1984. I sustained the complaint and ordered 

that Mr. Ribel be reinstated. In view of the fact that the 

complaint was filed on his behalf by MSHA, and since no one 

raised the question of attorney's fees and expenses, my· 

decision did not include those matters. 

Mr. Ribel's private counsel filed her motion with the 

Commission's Executive Director on October 29, 1984, and 

included as part of the motion are four attachments itemizing 

expenses allegedly incurred by Mr. Ribel in connection with 

his discharge by the respondent. 

On November 7, 1984, respondent's counsel filed an 

opposition to the motion for an award of costs, expenses, 

and attorney's fees. 

2744 
Attachment 2 to the motion is an itemized statement 

prepared by counsel Barbara Fleischauer claiming $118.35 

for mileage and meal costs, $258.98 for long distance telephone 

calls, and $8,688.33, for "expenses for legal services." 

These claims total $9,065.66. 

Attachment 2(A) claims mileage and meal costs totaling 

$118.35, covering a period from September 5, 1983 to 

October 19, 1984. 

Attachment 2(B) claims long distance telephone calls 

in the amount of $258.98, covering a period from August 22, 

1983, to October 4, 1984. 

Attachment 2(C) is an itemized list of claimed expenses 

for legal services in the amount of $8,688.83, covering a 

period from August 21, 1983, to October 24, 1984. Counsel 

states that during this period of time she provided 173.77 hours 

of legal services, billed at $50 per hour, for a total of 

$8,698.33. 

Attachm.ent 3 is a statement of expenses filed by 

Counsel Fleischauer on behalf of Professor Robert Bastress. 

Included in this statement are costs for mileage and meals 

amounting to $138.48, and "expenses for legal services" amounting 

to $656.25, for a total of $794.73. 

Attachment 4 is a statement of expenses filed by 

Counsel Fleischauer. on behalf of Professor Franklin D. Cleckley 

for "legal services" in the amount of $206.25. 

In support of these~charges, counsel submits an unsigned 

typewritten letter dated October 24, 1984, to Mr. Ribel 

advising him that he owes Professor Bastress $794.73, and 

Professor Cleckley $206.25 (Attachment 1). 

Attachment 5 is a statement of expenses allegedly incurred 

by Mr. Ribel in connection with his discrimination claim. 

Included in this claim are mileage and meal costs in the 

amount of $135.92, long distance telephone calls in the 

amount of $53.54, and miscellaneous expenses in the amount 

of $470.88, for a total of $660.34. 

Attachment 5(A) and (B) are itemized statements of 

Mr. Ribel's claimed expenses for mileage, meals, telephone, 

and miscellaneous expenses incurr.ed by Mr. Ribel (and in one 

instance, his wife), covering a period from August 24, 1983, 

to November 15, 1983. Most of the items claimed appear to 

be for travel to and from the West Virginia University Law 

Center, and travel to and from Fairmont and Charleston, 
west Virginia, and the West Virginia Department of Mines 

in connection with Mr. Ribel's appeal before the State of 

west Virginia on his discharge. Further, most of the claimed 

telephone calls on attachment 5(B), are between Mr. Ribel 

and an unidentified "witness" or "union representative." 

Attachment 5(C), are claims in the amount of $290.88, 

for prescription medication expenses incurred by Mr. Ribel's 

family during the time he was off the payroll of the respondent. 

Mr. Ribel claims that these medical expenses would have normally 

been covered by his company insurance had he not been discharged. 

Attachment 5(C), also includes interest charges in the 

amount of $180, which Mr. Ribel claims he incurred on loans 

made to cover expenses resulting from 3 months of lost wages 

while he was off the respondent's employment rolls. 

The sum total of all claimed expenses filed by Counsel 

Fleischauer amount to $10,726.98. 

Respondent's Opposition to the Awarding of Attorneys' Fees 

In opposition to the motion for an award of attorneys' 

fees, respondent's counsel points to the fact that the complaint 

in this case was brought on Mr. Ribel's behalf by the Secretary 

pursuant to the provisions of section 105(c) (2) of the Act. 

Counsel submits that it is only with respect to an action 

brought by a complainant on his own behalf pursuant to the 

provisions of section 105(c) (3) of the Act that an award 

of costs and expenses, including attorneys' fees, is appropriate. 

Therefore, counsel concludes that an award of costs and 

expenses, including attorneys' ~ees, to Mr. Ribel in this 

case would be inappropriate. 

Respondent submits fhat the language of section 105(c) 

of the Act is plain as to the question of when an award 

of costs, including attorneys' fees, should be made. Respondent 

emphasizes the fact that section 105(c) (2) of the Act r~quires 

the Secretary to file a complaint with the Commission on a 

complainant's behalf when he determines that a violation of 

that section has occurred. When the Secretary determines 

that a violation has not occurred, section 105(c) (3) confers 

upon the ·complainant the right to file an action in his own 

behalf before the Commission. Respondent submits that it is 

only in this instance that section 105 authorizes the award 

of costs including attorneys' fees. In support of this 

cortclusion, respondent cites the following language of 

section 105 (c) (3): 

') ..... "n _ 

,· 

_, . ~ 

/Lt~' ::.&: l.J 
When an Order is issued sustaining 

the complainant's charges under this 

subsection, a sum equal to the aggregate 

amount of all costs and expenses (including 

attorneys' fees) as determined by the 

Commission to have been reasonably incurred 

by the miner, applicant for employment or 

representative of miners for, or in connection 

with, the institution and prosecution of 

such proceedings shall be assessed against 

the person committing such violation. 

Respondent maintains that there is no similar provision 

authorizing the award of costs and fees when the Secretary 

prevails in an action commenced pursuant to the provisions 

of section 105(c) (2), and that it is only in connection with 

a successful action commenced pursuant to the provisions of 

section 105(c) (3) that an award of attorneys' fees is 

appropriate. In further support of its argument, respondent 

cites the legislative history of the Act as reported by the 

Joi~t Explanatory Statement of the Conference Committee, in 

pertinent part as follows: 

* * * If the complainant prevailed in an 

action which he brought himself after the 

Secretary's determination, the Commission 

Order would require that the violator pay 

all expenses reasonably incurred by the 

complainant in bringing the action. 

(Emphasis added.) 

H. Confer. Rep. No. 95-655, 95th Cong., 1st Sess. (1977) 

U.S. Code Cong. § Admin. _News 1979, p. 3500. 

Respondent concludes that it is apparent that Congress 

intended that an applicant be entitled to an award of fees 

and costs in an action brought pursuant to the provision? 

of section 105(c) only when the applicant is required to 

commence an action with the Commission on his own behalf, and 

that an award of costs including attorneys' fees, as requested 

by Mr. Ribel, would be inappropriate and unwarranted under 

the circumstances of this case. 

In further opposition to the motion for award of attorney's 

fees, respondent's counsel asserts that subsequent to his 

discharge, Mr. Ribel also filed a petition with the West Virginia 

Coal Mine Safety Board of Appeals pursuant to the provisions 

of the West V,irginia Coal Mine Health and Safety Act, W.Va. 

2747 
Code§ 22-1~1 et seq., charging that his discharge had been 

in violation or-the anti-discrimination provisions of that 

Act. Counsel states that a hearing was held on Mr. Ribel's 

petition before the Board in Charleston, West Virginia on 

November 15, 1983, but that on November 29, 1983, acting on 

a motion filed by Eastern, the Board entered an Order staying 

and deferring any further investigation or hearing with respect 

to Mr. Ribel's discrimination petition, and that Mr. Ribel's 

petition for discrimination is pending with the Board at 

this time. 

Respondent's counsel also asserts that he believes that 

subsequent to his discharge, Mr. Ribel filed a claim for 

unemployment compensation with the West Virginia Bureau of 

Unemployment Compensation, and that a hearing was held on 

Mr. Ribel's claim on or about September 5, 1983. 

Respondent submits that the requested attorneys' fees 

for Mr. Ribel's private counsel for work performed in connection 

with his proceedings before the State of West Virginia are 

inappropriate because any work done by counsel was not 

work which was necessary to the preparation and presentation 

of the issues before the Commission in this case. Moreover, 

counsel asserts that Mr. Ribel may be entitled to the award 

of fees under attorneys' fees provisions of the West Virginia 

Coal Mine Safety Act and the Unemployment Compensation Act. 

Counsel argues that any fee awarded under the Federal Mine 

Safety and Health Act for services performed in connection 

with the State proceedings would result in double recovery 

for Mr. Ribel. Under the circumstances, counsel maintains 

that any fee award by the Commission should be reduced so 

as to exclude all hours charged in connection with the proceedings 

before the State of West Virginia. 

Assuming arguendo that the Act can be construed to 

authorize the award of fees for the efforts of private attorneys 

in an action brought by the Secretary on behal~ of a complainant 

pursuant to section 105(c) (2), respondent's counsel cites the 

"intervenor" cases of Donnell v. United States, 682 F.2d 240 

(D.C. 1982); Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C. 

Cir. 1982) and Busch v. Bays, 463 F.Supp. 59, 66 (E.D. Va. 1978), 

and argues that the test which has evolved from these decisions 

requires the Commission to make a determination as to the 

role played by the "intervenor" before making any fee 

award. Respondent submits that if the "intervenor'' has 

contributed little or nothing of substance to the litigation, 

then no fee award is appropriate. 

')'"' ,18 ;:.,,, ( ·-
On the facts of the instant case, respondent's counsel 

asserts that the action commenced by the Secretary on Mr. Ribel's 

behalf before the Commission, including the necessary steps 

leading to my decision were as follows: the filing of the 

complaint by the Secretary; the representation of Mr. Ribel 

at the temporary reinstatement hearing on November 28, 1983; 

the representation of Mr. Ribel at his deposition which was 

taken for purposes of preparation for the hearing on the 

merits of his complaint; representation of Mr. Ribel at the 

hearings on the merits which were held on January 11 and 12, 

1984,; and the preparation and filing of a post hearing brief 

with me. Since Mr. Ribel was ~epresented by the' Secretary 

in all of these matters, counsel concludes that the function 

performed by his personal attorney was limited to showing 

up at hearings and depositions and reading documents prepared 

by others. Counsel maintains further that there is no showing 

here that Mr. Ribel's personal attorneys contributed anything 

of substance or value to the outcome of the action commenced 

on his behalf by the Secretary. Under the circumstances, and 

in light of the principles set forth in his cited cases, counsel 

submits that an award of fees to Mr. Ribel for the hours 

logg_ed by his personal attorneys would be inappropriate. 

With regard to Attorney Fleischauer's fee charges in 

connection with the temporary reinstatement hearing held 

on November 28, 1983, and the hearing on the merits held on 

January 11 and 12, 1984, respondent's counsel points out 

that in both instances the hearings· were handled by counsel 

for the Secretary and that Ms. Fleischauer's participation 

was strictly as an observer. Counsel submits that the same 

is true for the fee charges by Ms. Fleischauer in connection 

with the taking of Mr. Ribel's deposition in preparation 

for the hearing on the merits of his complaint. Further, 

counsel notes that Ms. Fleischauer has listed numerous charges 

for reviewing and reading documents prepared by other counsel, 

and he suggests that these charges should be reduced or 

eliminated as excessive and unnecessary. 

Although the respondent takes the position that no 

attorney fee award is appropriate, it nonetheless submits 

that if a fee is awarded, the following is a schedule of 

reasonable hours and rates in light of Ms. Fleischauer 's 

"minor role" in this matter: 

1) Client interview 2.0 

2) Review Complaint prepared by 

Secretary .5 

3) Attendance at temporary reinstatement hearing 6.0 

07 .19 :- ':i 
4) 

5) 

6) 

Attendance and assistance at 

hearings on the merits 

Review Secretary's posthearing 

brief 

Review Judge Koutras' decision 

and meeting with client 

20.5 at $50.00 

10.0 

1. 0 

1. 0 

20.5 

$1,025.00 

Attorney Fleischauer's Arguments in Support of the Motion 

for Attorney Fees 

By memorandum filed with me on November 26, 1984, 

Ms. Fleischauer maintains that the plain meaning of section 

105(c) (3) of the Act authorizes the award of private attorneys 

fees and expenses reasonably incurred by Mr. Ribel in connection 

with the discrimination complaint brought on his behalf 

by the Secretary of Labor. In support of this argument, 

Ms. Fleischauer relies on the Supreme Court decision in 

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), 

a case litigated pursuant to Title VII of the Civil Rights 

Act of 1964. Ms. Fleischauer argues that the factual similarities 

between Mr. Ribel's case before this Commission and the facts 

presented in the New York Gaslight Club, Inc. are controlling 

on the question of the award of attorneys fees to her for 

the work performed on Mr. Ribel's behalf. She concludes 

that the Supreme Court's holding in the case stands for two 

separate propositions that are relevant to this case: (1) 

private attorneys who intervene in federal agency proceedings 

on the complainant's behalf may be reimbursed for their 

time under the federal statute, and (2) private attorneys 

who participate in state~agency proceedings which are related 

to or have a connection with the federal proceedings, may also 

recover attorneys fees for the state proceedings under the 

federal statute. 

In further support of her request for attorney fees, 

Ms. Fleischauer includes an affidavit from Mr. Ribel and an 

affidavit executed by MSHA attorney Moncrief and filed with 

me on November 29, 1984. While taking no position on the 

award of attorney fees to Ms. Fleischauer, Mr. Moncrief 

states that during a period prior to the reinstatement hearing, 

he conferred with Ms. Fleischauer by telephone for the 

purpose of exchanging information, clarifying their understanding of the facts, and discussing "theories and approaches 

to the case." Mr. Moncrief also asserts that he conferred 

with Ms. Fleischauer the day before the hearing, and during 

the trial at counsel table and during recesses. He concludes 

that "my representation of Mr. Ribel was significantly enhanced 

by the collaboration with Ms. Fleischauer." 

<) •• , c 0 ~- I t..J 
Findings and Conclusions 

In Johnson v. Georgia Highway Express, Inc., 488 

F.2d 714, 717-719 (5th Cir. 1974), the court set down 12 

criteria for a judge's consideration in determining an award 

of attorney fees. At ~88 F.2d 720, the Court made the 

following observation: 

* * * The trial judge is necessarily called 

upon to question the time, expertise, and 

professional work of a lawyer which is always 

difficult and sometimes distasteful. But 

that is the task, and it must be kept in mind 

that the plaintiff has the burden of proving 

his entitlement to an award for attorneys' 

fees just as he would bear the burden of 

proving a claim for any other money judgment. 

In Donnell v. United States, 682 F.2d 240 (D.C. Cir. 

1982) , a case involving attorney fees to intervenors on 

the side of the United States under the Federal Voting Rights 

Act, the Court observed as follows at 682 F.2d 248, 249: 

Where Congress has charged a governmental 

entity to enforce a statutory provision, and 

the entity successfully does so, an intervenor 

should be awarded attorneys' fees only if it 

contributed substantially to the success of the 

litigation. This inquiry primarily entails 

determining whether the governmental litigant 

adequatety represented the intervenors' 

interests by diligently defending the suit. 

It also entails considering both whether the 

intervenor's PFOpnsed different theories and 

arguments for the court's consideration and 

whether the work it performed was of important 

value to the court. 

By providing for attorneys' fees to be 

awarded in actions brought to vindicate the 

civil rights laws, Congress did not intend 

to allow private litigants to ride the back 

of the Justice Department to any easy award 

of attorneys' fees. Obviously, if an 

intervenor did nothing but simply show up 

at depositions, hearings, and the trial itself 

and spend lots of time reading the parties' 

documents, an award of attorneys' fees would 

be inappropriate. The same would be true 

if .the intervenors' submissions and arguments 

were mostly redundant of the government's or 

were otherwise unhelprul. (Emphasis added.) 

2751 
The record in this case reflects that prior to the 

hearings concerning Mr. Ribel's complaints, Ms. Fleischauer 

failed to file any formal appearances as his counsel. 

Further, although her after-the-fact arguments in support of 

attorney fees suggest that she is an intervenor, the record 

reflects that at no time has she availed herself of the opportunity 

to file a motion of intervention pursuant to Commission Rule 

29 C.F.R. § 2700.4(c). 

With regard to Ms. Fleischauer's participation at 

the temporary reinstatement hearing held in Pittsburgh on 

Monday, November 28, 1983, I take note of the fact that she 

did not actively participate in the hearing, questioned no 

witnesses, presented no arguments, and simply sat at counsel 

table as an observer. Her appearance was noted after MSHA 

Counsel Moncrief introduced her on the record as "an attorney 

retained by Ribel or~ginally in anticipation of [sic] 

105(C) (3) case, as well as certain matters in the State of 

West Virginia which are similar in nature to these proceedings" 

(Tr. 5). Mr. Moncrief also stated that "With me is 

Barbara J. Fleischauer, who has been privately retained 

by-Mr. Ribel to represent him in ancillary matters, that is, 

matters ancillary to the proceeding" (Tr. 6). 

The trial transcript consisting of 321 pages in Mr. Ribel's 

reinstatement hearing reflects that Ms. Fleischauer's participation was limited to responding to questions from me concerning 

the location of a mine phone (Tr. 198-199), the identity of 

two miners at a mine meeting (Tr. 237-238), and a question 

as to whether Mr. Ribel was receiving unemployment compensation 

(Tr. 291). I find nothing to support the conclusion that her 

participation was critical to Mr. Ribel's case, or that it 

significantly contribute§ to the presentation of his case, 

or the making of the record before me. In a trial transcript 

consisting of 321 pages, Ms. Fleischauer's name appears on 

three pages, and I cannot conclude that her p~rticipation 

made any significant contribution to the case as it was_beingpresented by MSHA counsel Moncrief. Accordingly, Ms. Fleischauer's 

reliance on MSHA Counsel Moncrief's affidavit in support of 

her contention that she made a significant contribution at 

the hearing is rejected. 

Ms. Fleischauer's reliance on Mr. Ribel's affidavit 

in support of her suggestion that she made a significant 

coptribution to the presentation of his case before me is 

also rejected. Mr. Ribel's assertion at page 2 of his affidavit 

that during his reinstatement hearing, Ms. Fleischauer 

"cleared up some confusion about the direction the air was 

flowing across the face," and that this was an "important 

part of my case," is nonsense. The ventilation flow in the 

mine had nothing to do with Mr. Ribel's discharge for allegedly 

sabotaging a mine phone. 

2752 
With regard to the hearing on the merits of Mr. Ribel's 

discharge, Ms. Fleischauer claims 13 hours of work in connection 

with the "hearing at Ramada Inn in Morgantown" on January 11, 

1984, and ''second day of hearing, consultation with client," 

on January 12, 1984. The hearing transcript for January 11, 

1984, reflects that she entered an appearance that day. 

However, the transcript for the second day, January 12, 1984, 

does not show that she was present, or that she entered 

an appearance. However, even assuming that she was present 

for the full two days of hearings, a review of the 743 pages 

of trial transcripts concerning Mr. Ribel's case, and two other 

complainants not represented by Ms. Fleischauer, reflects 

that Ms. Fleischauer is not mentioned at all. In short, the 

transcripts reflect that she was a nonparticipant. 

In my view, Mr. Ribel's statement at page 3 of his 

affidavit that Ms. Fleischauer's presence at the hearing on 

the merits of his discharge "gave us an opportunity to gather 

information and observe how witnesses acted in case we needed 

to have a hearing at the state level," accurately portrays 

the role played by Ms. Fleischauer in the hearings before 

me. As I stated earlier, her role in both hearings before 

me was that of an observer monitoring the hearings. 

Ms. F·leischauer admits as much when she states at page eleven 

of her memorandum that she would have been negligent if 

she had not monitored Mr. Ribel's case before this Commission. 

At pages 9 and 10 of her memorandum, Ms. Fleischauer 

asserts that in a discrimination case brought by MSHA 

on behalf of a complainang miner, the first duty of MSHA's 

attorneys is to see that the Act is enforced, and its obligation 

to the miner is only of secondary importance. In support of 

this conclusion, Ms. FleisQhauer maintains that MSHA's lack 

of commi ttment to Mr. Ri-bel "is shown by the fact that to 

date three different MSHA attorneys have been assigned to 

represent his case." 

I find Ms. Fleischauer's self-serving criticism concerning 

MSHA's asserted lack of committment to Mr. Ribel to be 

unwarranted and lacking in substance. MSHA Counsel Moncrief, 

who represented Mr. Ribel at the reinstatement hearing, and 

MSHA Counsel Rooney, who represented him at the hearing on 

the merits, more than adequately represented and protected 

Mr. Ribel's interests. 

I assume that the third attorney ref erred to by 

Ms. Fleischauer is the MSHA staff attorney who will represent 

2753 
MSHA and Mr. Ribel in the appeal filed with the Commission 

by the respondent. The fact that three MSHA staff attorneys 

have pursued Mr. Ribel's case before this Commission reflects 

committment, rather than a lack thereof. 

I believe it is clear from the record in this matter 

that Ms. Fleischauer provided no active input at the hearings 

which I conducted, asked no questions of witnesses, presented 

no evidence, did not participate in any cross-examination, 

and filed no post-hearing briefs or proposed findings and 

conclusions. In short, her role was that of a passive observer 

and nonparticipant. The work in connection with the presentation 

of Mr. Ribel's case before me, both at the temporary reinstatement hearing, and the hearing on the merits, was carried out 

by the Secretary's staff attorneys. The record reflects 

that both attorneys (Moncrief and Rooney) , provided more than 

adequate legal support for Mr. Ribel's position, and that 

his interests were protected and pursued in a competent 

manner by government counsel. The record here does not 

support a conclusion that Ms. Fleischauer made any meaningful 

contribution to the final outcome of Mr. Ribel's case before me. 

Most of the claimed legal expenses itemized in 

Attachment 2(C) of Ms. Fleischauer's motion, appear to be 

claims associated with her work in connection with Mr. Ribel's 

state unemployment compensation claim and his state appeal 

in connection with his discharge. .In each instance where 

she claims that she spent a designated amount of time on a 

particular matter, she has failed to indicate that it was 

in connection with Mr. Ribel's discrimination case before 

this Commission. For example, at page 1 of attachment 2(C), 

she states that on August 24, 1983, she spent 2 hours and 

forty-five minutes reading portions of the West Virginia Mine 

Safety Statute. On September 2, 1983, she claims that she 

spent approximately 3 hours researching state unemployment 

compensation laws, and that on September 5, 1983, she spent 

6-1/2 hours preparing for Mr. Ribel's state unemployment 

compensation claim hearing. On October 8 and 22, 1983,~she 

claims she spent approximately 4 hours reviewing and analyzing 

the transcript of Mr. Ribel's arbitration hearing. On 

November 7, 1983, she claims she spent over 7 hours meeting 

with an unidentified witness, and that on November 11, 1983, 

she spent over 9 hours for work connected with the "Appeal 

Board.'' On November 23, 1982, she claims she spent over 7 

hours meeting with a representative of the West Virginia 

Department of Mines Appeal Board. 

In her itemized expenses for legal services shown in 

Attachment 2(C), Ms. Fleischauer includes the following 

charges for researching, preparing, and computing the amount 

2754 
of claimed attorneys fees, and it includes the time spent 

in preparing her billings: 

12/9/83 

2/5/84 

10/5/84 

10/12/84 

10/20/84 

10/2.3/84 

45 minutes 

65 minutes 

90 minutes 

105 minutes 

120 minutes 

165 minutes (unspecified portion) 

590 minutes 

Based on a fee of $50 per hour, Ms. Fleischauer has 

claimed a fee of approximately $500 for compiling and computing 

how much Mr. Ribel owes her for her legal services. 

The New York Gaslight Club, Inc., case involved a 

racial discrimination complaint filed under Title VII of 

Civil Rights Act of 1964, with the Federal Equal Employment 

Opportunity Commission. Pursuant to certain procedures 

established by the EEOC for processing such complaints, 

the case was referred to the appropriate State of New York 

administrative Agency. The complainant was represented by 

private counsel throughout the state proceeding, and after 

completion of the state administrative and judicial proceeding, 

the state agency's determination in favor of the complainant 

was affirmed. 

The critical issue presented in the New York Gaslight 

Club, Inc. was the question of whether or not attorney 

fees could be awarded for work performed by a private attorneys 

in connection with proceedings pursuant to a federal statute 

before a state adjudicatory agency where there was no state 

provision for the payment of fees for private counsel. In 

holding that attorneys f~e~ were payable, the Supreme Court 

relied on the broad language found in section 706(k) of 

Title VII, allowing discretionary court approval of such 

fees "in any action or proceeding under this title," the 

fact that the complaint was initially referred to the state 

agency for resolution, the fact that Title VII gave the 

complainant the right to sue in Federal Court for attorneys 

fees regardless of the posture of the state proceeding, 

and the fact that the legislative history of Title VII 

reflected a broad and comprehensive enforcement provides for 

an initial state and local resolution of the complaint, with 

the ultimate compliance authority residing in the federal 

courts. 

Ms. Fleischauer asserts that the facts presented in 

Mr. Ribel's Gase are similar to those which prevailed in 
New York Gaslight. She maintains that MSHA's inspectors 

encouraged ·Mr. Ribel to retain private counsel; that MSHA's 

attorneys somehow viewed Mr. Ribel's interests as of secondary 

importance and lacked committment to his case; that she made 

a positive contribution t·o the development of the record before 

me in Mr. Ribel's case; that her work in connection with 

Mr. Ribel's state proceeding "aided in the protection and 

preservation of Mr. Ribel's federal rights"; and that the 

state's proceedings were inadequate. 

Ms. Fleischauer's reliance on the asserted shortcomings 

and inadequacies of the State of West Virginia's procedures 

for adjudicating mine safety discrimination cases to support 

her claims for attorneys fees in the case before me is 

irrelevant. Mr. Ribel's complaint under the Federal Mine 

Act has afforded him a full and fair opportunity to be heard 

before this Commission, and I remain unconvinced tha~ 

Ms. Fleishcauer's limited participation in the proceedings 

before me contributed in any meaningful way to the adjudication 

of his case. I am also not convinced that her work in 

connection with Mr. Ribel's state complaints, including his 

claims for unemployment compensation, contributed in any 

meaningful way to my adjudication of his case. 

Ms. Fleischauer's reliance on the New York Gaslight 

case in support of her claimed attorneys fees for work in 

connection with Mr. Ribel's state proceedings IS REJECTED. 

In Mr. Ribel's case, it seems clear to me that the complaint 

filed on his behalf by MSHA before this Commission was 

separate and apart from any remedy which may have been 

available to him under state law. In these circumstances, I 

am of the view that Ms. Fleischauer should look to the State 

of West Virginia to recover any attorneys fees incurred by 

Mr. Ribel in connection !'i~h counsel's legal work in that 

forum. 

Ms. Fleischauer does not adequately explain the services 

purportedly rendered by "Professor" Bastress and "Professor" 

Cleckley on behalf of Mr. Ribel. It would appear. to me that 

these services were in connection with Mr. Ribel's claims 

before several state agencies. In any event, these individuals 

are totally unfamiliar to me, and they entered no appearances 

and did not participate on the record in any proceeding 

before me in connection with Mr. Ribel's discrimination 

complaint. Under the circumstances, these claims ARE REJECTED 

a~ unsupported and unwarranted. 

In Secretary of Labor, ex rel Michael J. Dunmire and 

James Estle v. Northern Coa·1 Co., 4 FMSHRC 126 (February 5, 1982) , 

2756 
the Commission affirmed a decision by Judge Morris awarding 

two miners expenses they incurred while attending hearings 

concerning their discrimination complaints brought on their 

behalf by MSHA. In granting this relief, the Commission 

noted as follows at 4 FMSHRC 143-144: 

Regarding incidental, personal hearing 

expenses incurred by Estle and Dunmire 

in connection with their attendance, Northern 

argues that because section 105(c) (3) of the 

Mine Act expressly provides for hearing 

expenses, while section 105(c) (2) does not 

mention the subject, Congress must have 

intended that such expenses were outside 

the scope of a section 105(c) (2) remedial 

award. We agree with the judge that the 

differences in language between the two 

sections are not as significant as Northern 

argues. Section 105(c) (2) expressly provides 

that the relief it authorizes is not limited 

to the reinstatement and back pay mentioned. 

Furthermore, the "illustrative" nature of the 

relief listed in section 105(c) (2) is made 

clear by the legislative history we quoted 

above. Estle and Dunmire would not have borne 

such expenses (and inconvenience) but for 

Northern's discrimination. We therefore hold 

that reimbursement of their hearing expenses is 

an appropriate form of remedial relief. 

In his decision of May 27, 1981, in the Northern Coal Co. 

case, Judge Morris made the following findings and conclusions 

with respect to the question of reimbursement of expenses in 

connection with attending the hearings, 5 FMSHRC 1342-1343: 

* * * Under Section 105(c) (2), in a discrimination proceeding brought by the Secretary, the 

Commission may direct 'other appropriate relief,' 

including an order incorporating affirmative 

action to abate and 'back pay and interest.' 

A Section 105(c) (2) case brought by the Secretary 

does not directly authorize costs and expenses. 

On the other hand, in a proceedings [sic] 

brought by a miner on his own behalf under 

Section 105(c) (3), in addition to back pay and 

interest, the Commission shall award a sum for 

'all costs and expenses.' The apparent conflict, 

as outlined above, is resolved by a review of 

the legislative history: 
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 with [sic] 

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. 

S. Rep. No. 95-181, 95th Cong. 1st Sess. 37, 

reprinted in (1977) U.S. Code Cong. & Ad News 

3400 I 3437. 

Application of the statutory standard 

has resulted in the reimbursement of lost equity 

in a truck (Secretary on behalf of E. Bruce 

Noland v. Luck Quarries7 Inc., 2 FMSHRC 954), 

an employment agency fee (Secretary on behalf 

of William Johnson v. Borden, Inc., SE 80-46-DM, 

April 13, 1981), transcript, court costs, and 

attorneys fees (Frederick G. Bradley v. Belva 

Coal Company, supra. Here the expenses incurred 

in participat~on. in the hearings are special 

damages necessarily resulting from complainants' 

prosecution of their claims. The statute intended 

these expenses to be borne by the individual 

whose conduct occasioned them. 

Northern also argues that no expenses should 

be awarded Dunmire for the hearing on the 

temporary reinstatement order because the 

Secretary asserted that no testimony could ·be 

taken regarding the merits of the case. This 

point has been thoroughly discussed (supra, 

pages 8-11). In addition, there is no doubt 

that the presence of Dunmire was necessary in 

the prosecution of his claim. 
In the Borden case cited to by Judge Morris, former 

Commission Judge Laurenson awarded the complainant $951.33, 

an amount he paid as a fee to an employment agency which 

found him a job after his discharge. Judge Laurenson held 

that "this employment agency fee is the type of consequential 

damages which is authorized by section 105(c) (2) of the Act," 

3 FMSHRC 926, 938 (April 13, 1981). However, Judge Laurenson 

denied the complainant's request for reimbursement of $20 

paid by him for tape recordings of his unemployment compensation 

hearing, and in so doing ruled that "Johnson failed to establish 

a valid reason for the need for these tape recordings as a 

reimbursable item of consequential damages," 3 FMSHRC 938. 

In the Bradley case cited by Judge Morris, Commission 

Judge Broderick authorized payment of $60.60 to the 

complainant for the cost of the hearing transcript in his 

case before this Commission, but denied a claim of $90 

for the transcript of the complainant's hearing before the 

West Virginia Coal Mine Safety Board of Appeals. 

In Secretary of Labor, MSHA v. Metric Constructors, Inc., 

6 FMSHRC 226 (February 29, 1984, a case brought by MSHA 

on behalf of seven miners, the Commission affirmed Judge Lasher's 

findings sustaining their discrimination claims. However, the 

Commission remanded the case for a determination as to certain 

remedial aspects of the case, particularly with regard to 

Judge Lasher's award of $125 per day to five of the complainants 

for the time spent attending their hearings. The awards 

were in the amount of $375 to four of the complainants and 

$250 to the other one for the three day hearings. Judge Lasher 

noted that in the absence of any specific input from the 

parties as to the amounts that should be awarded, "an award 

of $125.00 for each day_of.hearing attended by a Complainant 

is fair and reasonable reimbursement," 4 FMSHRC 811 (April 20, 

1982). 

In remanding the case, the Commission noted as follows 

at 6 FMSHRC 226, 234 (February 29, 1984): 

Recovery of expenses incurred in bringing 

a successful claim may be part of the relief 

necessary to make a discriminatee whole. 

Northern Coal, 4 FMRHRC at 143-44. The 

burden of establishin( a claim for expenses is 

upon the Secretary. It is he who must introduce 

sufficiently detailed evidence so that a 

determination may be made whether the complaints' 

claims are justified. When he does not do so 

and when, as here, the judge's award is without 

record support, we have no basis for meaningful 

•.) ~·J r::-9 ,..., ( 0 
review. We therefore vacate the award 

of expenses. However, in view of the 

statutory duty to make these miners whole, 

we remand in order to afford the parties 

the opportunity to submit evidence concerning 

the appropriate amount, if any, of the 

expenses to be awarded the complainants. 

The Metric Constructors, Inc. case was assigned to me 

on remand. The parties stipulated and agreed to the relief 

due the complainants, and with regard to hearing expenses, 

they agreed that three of the complainants should be paid 

$72 each for the time spent attending the hearing, and that 

one other complainant should be paid $48. The stipulation 

and agreement was finalized in my decision of Apr'il 26, 1984. 

A subsequent appeal taken by MSHA in the case was denied by 

the Commission on June 6, 1984, and Judge Lasher's decision, 

as well as mine, became final. 

In a recent decision by Chief Judge Merlin in Secretary 

of Labor, MSHA, ex rel Thomas L. Williams v. Peabody Coal 

Company, 6 FMSHRC 1920 (August 3, 1984), he considered a 

request for special damages filed pursuant to the "other 

appropriate relief" clause under section 105(c) (2). In 

that case, the complainant's privately retained counsel 

sought money damages, including attorney fees, for losses 

purportedly incurred in real estate and business ventures 

after the complainant was laid off. Judge Merlin rejected 

both claims after finding that the wrongful layoff of the 

complainant was not the proximate cause of his real estate 

and business losses and expenses. Judge Merlin also rejected 

a claimed expense of $1,418.64, purportedly incurred by the 

complainant while job h~ntjng after his layoff, and he did 

so after noting that MSHA's brief cited no case law to 

support an award of such damages, and that the solicitor 

advised him during the hearing that decisions under the 

National Labor Relations Act indicated such an award wguld 

not be made, 6 FMSHRC 1925. 

In the Williams case, the parties agreed that he was 

entitled to recover for unreimbursed medical expenses in 

the amount of $710, and for the cost of obtaining recertification 

as an electrician. In approving payment for these costs, 

Judge Merlin noted as follows at 6 FMSHRC 1925: 

It should be noted that an award of damages 

in these two instances would be appropriate 

under the principles set forth herein. The 

medical expenses would have been paid for 

by health insurance if Complainant had been 

2760 
working and the electrical certif ication would not have expired if Complainant 

had not been laid off. The layoff was the 

proximate cause of these particular losses. 

In Secretary of Labor, MSHA, ex rel Larry D. Long v. 

Island Creek Coal Company and Langley & Morgan Corporation, 

2 FMSHRC 2640 (September 18, 1980), Commission Judge Fauver 

awarded compensation to a complainant for costs and expenses 

incurred in connection with the institution and prosecution 

of his discrimination claim by MSHA. Judge Fauver awarded 

compensation for (1) lost wages in the amount of $247.04; 

(2) mileage expenses in the amount of $199.24; and (3) telephone 

expenses in the amount of $57.47, and his awards were 

substantially less than the total amount requested by MSHA 

on behalf of the prevailing miner. As noted in the October 1, 

1981, issue of the CCH Employment Safety and Health Guide, 

No. 542, page 9, Judge Fauver's decision was upheld on 

September 4, 1981, in an unpublished opinion (No. 80-1799) 

by the Fourth Circuit Court of Appeals. 

On the basis of the aforementioned cases concerning 

MSHA instituted discrimination complaints, damage awards 

have been made for expenses incurred by a complainant while 

attending his own hearing, including claims for mileage 

and telephone calls, and the cost of Commission hearing 

transcripts. Conversely, claims •for costs incurred by a 

complainant in colla.teral matters such as state unemployment 

compensation claims and state-filed discrimination complaints 

have been rejected. In each instance where costs were awarded, 

the Judge viewed them as consequential or special damages 

within the meaning of the term "other appropriate relief" 

language found in sect~on ios(c) (2) of the Act. Except 

for the Williams case decided by Judge Merlin, none of the 

other cases concerned private attorney fees for MSHA-initiated 

complaints. 

Except for the Williams case decided by Judge Merlin, 

none of the other cited cases concerned awards for private 

attorney fees for MSHA-initiated complaints. In the Williams 

case Judge Merlin denied a fee request after finding that 

the requested fees were in connection with claimed business 

losses which were not the direct result of the discriminatory 

conduct. 

After careful review and consideration of the arguments 

presented by the parties in support of their respective 

positions on the issue of attorney fees in MSHA-initiated 

discrimination complaints, I cannot conclude that such fees 

are available as special or consequential damages pursuant 
to section 105(c) (2). On the facts of this case, I 

conclude and find that Mr. Ribel's decision to retain private 

counsel was of his own doing, and that private counsel was 

not necessary to pursue 'his complaint before this Commission. 

Since his complaint was pursued at all stages before me by 

MSHA's attorneys, I conclude that any fee award to private 

counsel here would be inappropriate, particularly where the 

record shows that private counsel did little or no work in 

the proceedings before me, and made little or no contribution 

to the outcome of Mr. Ribel's case. Accordingly, Ms. Fleischauer's 

assertion that she is entitled to attorney fees under section 

105(c) (2) of the Act ARE REJECTED, and her claims ARE DENIED. 

Even if I were to hold that section 105(c) (2) authorizes 

an award of private attorney fees as part of the special 

or consequential damages available to a prevailing complainant, 

on the facts of this case, I remain unconvinced that 

Ms. Fleischauer earned the substantial fees that she is 

claiming for her legal efforts on behalf of Mr. Ribel in 

the proceedings before me. In any event, in such a case, I 

would award her the amount suggested by respondent ($1,025) 

as a reasonable fee for her input in the proceedings which 

I adjudicated. 

With regard to Mr. Ribel's claim for $290.88, for 

prescription medication expenses incurred by his family 

during the time he was off the respondent's payroll, I 

conclude and find that these expenses may be recovered as 

consequential damages. In this regard, I assume that any 

such expenses incurred by Mr. Ribel during the period he 

was off the respondent's emplqyment rolls would have been 

covered by his company provided medical insurance plan. Had 

he not been discharged, th~se.expenses would have been paid 

or at least compensated~by any applicable insurance plan. 

If my assumptions are correct, and assuming the itemized 

expenses can be verified, RESPONDENT IS ORDERED to compensate 

Mr. Ribel for these personal expenses. 

With regard to Mr. Ribel's claims for $180 in interest 

charges for personal loans totalling $1500 to cover certain 

expenses resulting from three months loss of wages, I 

conclude and find that these expenses are recoverable as 

consequential damages flowing from the discriminatory conduct. 

Assuming these amounts can be verified, RESPONDENT IS ORDERED 

to compensate Mr. Ribel for these personal expenses. 

With regard to Mr. Ribel's mileage and meal costs for 

the periods 8/24/83 to 11/15/83, in the amount of $135.92, 

as itemized in Attachment S(A), they are all DENIED. These 

claims are for expenses preceding Mr. Ribel's hearings before 

this Commission, and I conclude that they are not recoverable 

under section 105(c) (2) of the Act. 
With regard to Mr. Ribel's long distance telephone 

call expenses totalling $53.54, as itemized in Attachment 

5(B), and encompassing a period from 8/5/83 to 8/11/84, 

I note that many of the itemized calls were made before 

and after the hearings which I conducted. Since it is 

difficult to verify and separate an itemized listing, 

I will award Mr. Ribel the sum of $35.00, as a reasonable 

amount to compensate him for his out-of-pocket claimed 

phone calls, and RESPONDENT IS ORDERED to pay him that 

amount. 

The parties are advised that my findings and conclusions 

with respect to the requested.attorney fees and expenses have 

been made after careful consideration of all of the arguments 

presented by Ms. Fleischauer in her memorandum in support 

of the requested awards, the oppositions and replies filed 

by the respondent's counsel, and the affidavit filed by 

Mr. Moncrief. I take particular note of the fact that MSHA 

has taken no position with respect to the merits of 

Ms. Fleischauer's claims for fees and damages, and that 

MSHA Counsel Rooney and respondent's Associate General 

Counsel Rock have not been heard from. 

Distribution: 

/1! 

'~~. .a~ Koutras 

Administrative Law Judge 

Frederick W. Moncrief, Esq., USDL, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Barbara J. Fleischauer, Esq., 258 McGara St., Morgantown, WV 

26505 (Certified Mail) 

Covette Rooney, Esq., USDL, Office of the Solicitor, 3535 

Market St., Philadelphia, PA 19104 (Certified Mail) 

Sally Rock, Associate General Counsel, Eastern Associated 

Coal Corp., One PPG place, Pittsburgh, PA (Certified Mail) 

Ronald s. Cusano, Anthony J. Polito, Esqs., Corcoran, Hardesty, 

Ewart, Whyte & Polito, P.C., Two Chatham Center, Suite 210, 

Pittsburgh, PA 15219 {_Certified Mail) 

slk 

?~e3 -- Ju 
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. 

PEABODY COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 84-149 

A.C. No. 15-02705-03539 

Camp No. 2 Mine 

AMENDED DECISION AND ORDER 

Before: Judge Melick 

In the Decision and Order in the captioned civil penalty 

proceeding dated November 20, 1984, the amount of penalty 

assessed for the violation charged in Citation No. 2338148 

was inadvertently omitted. Accordingly that Decision and 

Order is amended to direct the Peabody Coal Company to pay a 

civil penalty of $100 for the violation cha~ged in Citation 

No. 2338148 within 30 days of the date of t~is amended 

decision. Commission Rule 65(c), 29 C.F.R. 2700.65(c). 

Distribution: 

u •. 

Assista 

GaL Me~~~~ \ Chief ~dministrative \yv~ Law Judge 

Deborah A. Persico, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Michael O. McKown, Esq., Peabody Coal Company, P.O. Box 373, 

St. Louis, MO 63166 (Certified Mail) 

/ejp 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

METTIKI COAL CORPORATION, 

Contestant 

CONTEST PROCEEDING 

v. Docket No. YORK 84-13-R 

Order No. 2261376; 5/30/84 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

A-Mine 

Appearances: 

Before: 

DECISION 

Timothy M. Biddle, Esq., and Adrienne J. 

Davis, Esq., Crowell & Moring, Washington, D.C., 

for Contestant; 

Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Respondent. 

Judge Melick 

This contest proc~eding was brought by the Mettiki Coal 

Corporation (Mettiki) pursuant to Section 105(d) of the 

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

et seq., the "Act," to challenge an order of withdrawal 

issued by the Secretary of Labor under Section 104(d) (1) of 

the Act. 

The order at issue (Order No. 2261376) alleges a violation of the standard at 30 C.F.R. § 75.200 and reads as 

follows: 

There were two resin grouted rods (made up 

for installation) standing in an upright position 

against the right rib a distance of 5 feet inby 

the TRS [temporary roof support] on the Fletcher 

roof bolting machine located in the last open crosscut between the LT Mains (004) sections No. 2 and 

No. 3 intake entries at break No. 85. These roof 

bolts were inby permanent roof supports (last row) a 

distance of 11 feet. This section is supervised by 

Paul Baker section foreman. The approved roof control 

plan states that "Miners shall not advance inby the 

last row of installed roof bolts except to install 

2765 
supports," and all indications indicated that a miner 

had to advance inby the last row of installed roof 

bolts to place these above listed roof bolts against 

the rib. 

At the conclusion of the evidentiary phase of the hearing 

Mettiki moved for dismissal. In a bench decision the undersigned granted the motion. That decision appears below with 

only non-substantive changes. 

I'm going to grant the operator's motion to 

dismiss. First of all the applicable Roof Control Plan 

states that miners shall not advance inby the last row 

of installed roof bolts, except to install supports. 

The Government acknowledges however that an additional 

exception is permitted so that a miner can advance inby 

the last row of installed roof bolts so long as there 

is temporary support providing protection. 

The undisputed testimony of the Government witnesses is that two roof bolts were found positioned 

some five feet inby the temporary support. However the 

only evidence that the Government has produced to 

indicate that the individual miners had themselves been 

inby the temporary roof support is its speculation that 

it would have been virtually impossible to have two 

roof bolts positioned or lined up so closely together 

and parallel against the rib unless the miners had 

themselves been under unsupported roof. 

Against that speculation, however, there is the 

direct sworn testimony of Mssrs. Riggleman and 

Shifflett. Mr. Riggleman, in particular, as the most 

likely person to have positioned the cited roof bolts 

where they were, demonstrated how, while remaining 

under the protection of the temporary support he would 

place one or two of these six foot roof bolts against 

the rib inby the temporary support by placing one end 

on the mine floor about 5 feet inby and tossing it 

up against the rib. According to Riggleman it would 

ordinarily align itself upright alongside the rib. 

When you compare this credible and corroborated 

direct testimony against the Government's speculation, 

I am obligated to accept that testimony--and I have no 

reluctance in accepting that testimony. I therefore 

find that the miners were at all times under the 

protection of at least temporary roof support in spite 

of the fact that the roof bolts themselves were found 

2766 
some five feet inby. The position of the roof bolts 

has been satisfactory explained and therefore, I 

find no violation. The order must accordingly be 

dismissed. 

ORDER 

The bench decision is affirmed 

is dismissed. 

rder No. 2261376 

ministrative Law Judge 

Distribution: 

Adrienne J. Davis, Esq., and Ti thy M. Biddle, Esq., Crowell 

& Moring, 1100 Connecticut Ave., N.W., Washington, DC 20036 

(Certified Mail) 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

/ejp 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

3ECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

O'BRIEN ROCK COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 84-42-M 

A.C. No. 14-00139-05501 

Chetopa Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

The parties have reached a settlement of the three 

electrical violations involved which resulted in a fatality 

in the total sum of $9000.00. MSHA's initial assessment 

therefor was $12,000.00. 

The terms of the settlement are as follows: 

Citation No. Assessment Settlement 

02095892 $10,000 $8,000 

02095893 1,000 500 

02095894 1,000 500 

Attachments to the settlement agreement show that 

this family-owned business, as of October 31, 1983, had total 

assets of a value less than one million dollars and for 

fiscal year 1983 (ending October 31, 1983) sustained a net 

loss. Since the fatality which occurred on October 3, 1983, 

Respondent has liquidated its mining operations and now 

operates only a ready-mix concrete operation. 

MSHA's motion for approval indicates inter alia that 

the "penalty reductions proposed in this particular case 

are based solely on factors separate and a part from 

negligence, gravity and the good faith of the operator, i.e., 

the subsequent cost of abatement, respondent's poor business 

showing the year of the accident, and respondent's decision 

to get out of the mining business." 

21768 
The parties also agree that if the settlement is approved 

that payment of the proposed penalty amount of $9,000 be 

made in the following manner: $375 to be paid upon the signing 

of this agreement and 23 consecutive payments of $375, to be 

paid on the first of each month thereafter. If any payment 

is more than 30 days delinquent then the remaining balance 

will become due and owing immediately. 

Although culpability is clear and is conceded, the 

economic considerations established in the record justify 

the 25% reauction from the special assessment originally 

issued by MSHA in this matter; approval thereof appears 

appropriate. 

ORDER 

Respondent is ordered to pay $9000.00 to the Secretary 

of Labor over a 24-month period and in the manner specified 

in their agreement. 

~t?'·~ft- Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Eliehue Bronson, Esq., U.S. Department of Labor, Office 

of the Solicitor, 911 Walnut Street, Kansas City, MO 

64106 (Certified Mail) 

Richard G. Tucker, Esq., 1831 Washington, P.O. Box 875, 

Parsons, KS 67357 (Certified Mail) 

slk 

?769 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

STEVE LEWIS, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 83-279-D 

BARB CD 83-23 

LEECO CORPORATION, 

Respondent No. 29 Mine 

DECISION AND ORDER AFFIRMING DISMISSAL 

Before: Judge Lasher 

The Complainant, Steve Lewis, failed to respond to 

Respondent's "Renewed Motion for Termination of Proceedings 

and Dismissal" filed on October 9, 1984, which sought dismissal 

for failure of the complaint to state a claim or cause of 

action. Pursuant to 29 C.F.R. § 2700.10 Complainant had 

the right to file an opposition to such motion within 10 days. 

Complainant did not appear at the hearing on November 27, 1984, 

one of the purposes of which was to determine if indeed a 

valid cause of action did exist under the Federal Mine Safety 

and Health Act of 1977. Accordingly, upon Respondent's renewal 

of its motion on the record at the commencement of the hearing, 

such motion was granted. 

It also appears that Complainant has abandoned the 

prosecution of his claim, in view of his having failed to 

respond to (1) the prehearing requirements contained in the 

Notice of Hearing herein, (2) a letter from Respondent's 

counsel, and (3) Respondent's motion to dismiss. Inasmuch 

as Complainant further failed to appear at the hearing without 

notice or explanation even though duly served with written 

notice thereof, this proceeding was dismissed from the bench 

on November 27, 1984, and that ruling is hereby AFFIRMED. 

Distribution: 

~/.~~~ Michael A. Lasher, Jr. 

Administrative Law Judge 

Steve Lewis, Box 438, Yeaddiss, KY 41777 (Certified Mail) 

Gene Clark, Esq., Reece, Clark & Lang, 304 Bridge St., Manchester, KY 40962 (Certified Mail) 

/slk 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW .JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

. ·~~ .. . i 

JEFFREY L. FANKHAUSER, DISCRIMINATION PROCEEDING · Complainant 

v. 

GEX HARDY I INC. I 

Respondent 

Docket No. LAKE 84-87-D 

MSHA Case No. VINC CD 84-06 

Holmes Strip Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Kennedy 

This matter is before me on the parties motion to approve 

settlement of the captioned anti-retaliation matter. 

Based on an independent evaluation and de novo review of 

the circumstances, I find the relief affordecr-the miner under 

the stipulated terms of settlement are in accord with the 

purposes and policy of the Act. 

Accordingly, it is ORDERED that the conditions for settlement set forth in counsel's letter of November 30, 1984, be, 

and hereby are, APPROVED. It is FURTHER ORDERED that said terms 

be, and hereby are, incorporated herein and that the operator 

FORTHWITH proceed to: 

1. Expunge from Mr. Fankhauser's personnel file 

all disciplinary actions connected with the 

incidents challenged. 

2. Reimburse Mr. Fankhauser for the three days 

suspension without pay previously effected. 

3. Upon receipt of his claim, promptly certify 

Mr. Fankhauser's Workmen's Compensation 

Claim. 

4. Pay for the repair of Mr. Fankhauser's 

artificial leg and any medical bills or 

oth~r expense incurred as a result of the 

injuries suffered by Mr. Fankhauser. 

~2771 
Finally, it is ORDERED that subje to compliance with this 

order the captioned matter be Diy'M SSED. 

I 

Distribution: 

Mr. Jeffrey L. Fankhauser, Box 23, Dundee, OH 44624 

(Certified Mail) 

Wm. Michael Hanna, Esq., Squire, Sanders & Dempsey, 1800 

Huntington Bldg., Cleveland, OH 44115 (Certified Mail) 

/ejp 

2772 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE ~,',, ,., ;Q~~4 

FALLS CHURCH, VIRGINIA 22041 .- ··-~ . -~ - ;, ...;v ., 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

WINDSOR POWER HOUSE COAL 

COMPANY, 

Respondent 

PRICE RIVER COAL COMPANY, 

Respondent 

WINDSOR POWER HOUSE COAL 

COMPANY, 

Contestant 

PRICE RIVER COAL COMPANY, 

Contestant 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF 

AMERICA, 

Intervenor 

DECISION 

Before : Judge Kennedy 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 82-303 

A.C. No. 46-01286-03089 

Beech Bottom Mine 

Docket No. WEST 83-2 

A.C. No. 42-00165-03504 

Price River No. 3 Mine 

CONTEST PROCEEDINGS 

Docket No. WEVA 82-243-R 

Citation No. 860872; 3/29/82 

Beech Bottom Mine 

Docket No. WEST 82-166-R 

Citation No. 1129455; 4/16/82 

Price River No. 3 Mine 

Docket No. LAKE 82-76-R 

Citation No. 1120486; 4/8/82 

Meigs No. 1 Mine 

The captioned review-penalty proceedings were before me 

on the parties' cross motions for summary decision at the time 

the Supreme Court denied certiorari in UMWA v. FMSHRC, 671 F.2d 

615 (D.C. Cir.), cert. denied 459 U.S. 927 (1982). 

'2773 
Shortly thereafter the case of Secretary v. SOCCO, FMSHRC 

Docket No. LAKE 80-142 (SOCCO I) was assigned to this trial 

judge under an order from the Court of Appeals to dispose of 

the matter in a manner "not inconsistent with its decision" 

and adjudication in UMWA v. Fre~.SHRC, supra. Order in No. 

81-2299 (D.C. Cir., April 27, 1982). ~he limited nature of 

the remand was underscored by the Commission which directed 

the case to the trial judge for "further proceedings consistent 

with the court's order." y 4 FMSHRC 456 (1982). 

Despite the clarity of these directions, the operator 

(SOCCO) filed a motion, after remand, for summary decision 

invoking the doctrine of administrative nonacquiesence and 

urging the trial judge ignore the court of appeals and the 

Commission and to make a de novo review of the matter. ij 

SOCCO I, 5 F.MSHRC 4 79 ( 1983) -. --

~he Secretary and the Union contended that ''law of the 

case" principles precluded reconsideration of the question of 

law decided by the court of appeals and I agreed. Ibid. 

The Commission, over the objection of then Chairman 

Collyer, denied discretionary review, whereupon SOCCO petitioned 

1/ SOCCO I had been before the court of appeals on a petition 

by the Secretary and the UMWA for review of a trial judge's 

decision that followed the Commission's narrow interpretation 

of the walkaround pay provision in Helen Mining, et al., 

1 FMSHRC 1796 (1979). See Secretary v. SOCCO, 3 FMSHRC 2531 

(1981). 

2/ The phrase "de nova" means an independent determination of 

a controversy that accords no deference to any prior resolution 

of the same controversy. United States v. Raddatz, 447 U.S. 

667, 690 (1980) (dissenting opinion). At the same time, the 

operator made clear that its request for nonacquiesence and a 

de novo review ran only one way. It did not extend, the 

operator asserted, to the point of permitting the trial judge 

to disagree with the Commission's Helen Mining decision. As 

to the latter, the operator claimed that the trial judge was 

bound to follow Helen Mining. This Catch-22 presented not 

only an ethical but also a doctrinal problem as the trial 

judge's earlier decision on the walkaround pay provision had 

disagreed with that of the Commission in Helen Mining and 

been affirmed by the court of appeals. Secretary v. Allied 

Chemical Corporation, 1 FMSHRC 1451 (1979), reversed 1 FMSHRC 

1947 (1979), reinstated 671 F.2d 615 (1982). 
for review in the Sixth Circuit. 3/ Thereafter, the Sixth 

Circuit transferred the appeal to-the D.C. Circuit, largely 

because of the remand order. Southern Ohio Coal Company v. 

FMSHRC, Order in No. 83-3346 (September 22, 1983). By its 

memorandum decision and order of June 14, 1984, the court of 

appeals for the D.C. Circuit granted the government's and 

the Union's motion for summary affirmance of the trial 

judge's decision. The court held that "SOCCO'S persistent 

attempt to avoid ·um·r v. FMSHRC was clearly futile and 

frivolous." Southern Ohio Coal Company v. FMSHRC No. 83-2046 

Slip Op. at 3. Subsequently, the Court of A~peals awarded 

attorney fees in the amount of $1,964.00 to the Secretary. 

Southern Ohio Coal Co. v. Secretary, et al. (Order of August 27, 

1984). 

The avowed purpose of this further litigation of the 

walkaround pay issue is to produce, if possible, a split 

in the circuits that will afford the mining industry a 

further opportunity to seek review of the D.C. Circuit's 

interpretation of section 103(f) by the Supreme Court. 

These particular proceedings brought by SOCCO and its 

affiliated corporations, Windsor Fower House Coal Company 

and Frice River Coal Company are designed to posit the 

walkaround pay issue for review in the Fourth, Sixth, and 

Tenth Circuits. Other operators have proceeded along 

parallel lines in the Third and Seventh Circuits in what 

appears to be a progran of massive resistence by the industry 

to the walkaround pay provisions of the Mine Act. The effort, 

to date, has been singularly unsuccessful but demonstrates 

the power of corporate America to tie the administrative 

and judicial systems up for years in repetitious relitigation. 

While no one presently contends that the after-tax cost 

of walkaround pay for spot inspections outweighs the socioeconomic benefits, the industry's dogged pursuit of the issue 

reflects not only a concern with cost but also its view that 

it is fundanentally unfair to require an operator to pay 

miners to assist federal inspectors to police an operator's 

mining practices. Rightly or wrongly, the industry views 

section 103(f) as an unwarranted intrusion into management's 

~ At this point, action on these matters was stayed pending 

resolution of the correctness of the trial judge's decision in 

SOCCO I. The wisdom of allowing the issues presented to 

mature through full consideration by the courts of appeals 

was subsequently confirmed. By eliminating subsidiary arguments, the Third and Seventh Circuits have vastly simplified 

my task and affirmed the reasonableness of the view I believe 

must ultimately prevail. 

') ~, '41' !; ,_.I v 
control over working conditions. Furnishing miners with a 

tool for monitoring safety practices in a manner that is 

largely independent not only of management but also of MSHA 

raises concerns of seismic proportions. 4/ When the 103(f) 

authority to inspect is coupled with the-aggressive use of 

the miners' authority to oversight MSHA's enforcement 

activity conferred by section 103(g) (1), (2), the miners are 

provided a self help mechanism that, properly employed, can 

do much to redress the present imbalance in vigorous enforcement that flows from MSHA's policy of nonadversarial policing 

of the mandatory health and safety standards. The teaching 

of bitter experience--an experience of which Congress was 

well aware--is that miners' involvement through participation 

in spot inspections is vital to an effective enforcement 

scheme, especially in an era of stringent budgetary constraints 

on federal enforcement activity. 

It is axiomatic that the cost of safety directly affects 

the cost of production. The temptation to minimize compliance 

with the safety standards and thus shave costs is ever present 

and magnified in times of economically depressed markets. To 

offset this temptation, the D.C. Circuit has recognized 

that "The miners are both the most interested in health and 

safety protection, and in the best position to observe 

compliance or noncompliance with the mine safety laws. 

Sporadic federal inspections can never be frequent or 

thorough enough to insure compliance." Phillips v. Interior 

Board of Mine Operations Appeals, 500 F.2d 772, 778 (D.C. 

Cir. 1974), cert. denied 420 U.S. 938. 

The regrettable result of MSHA's emasculation of the 

federal enforcement effort is that death and disabling 

injuries are on the rise in the nation's mines. Public 

perception of working conditions in the mines was accurately 

depicted in a series that ran in the Louisville Courier-Journal 

in May 1982. In a summary of its findings, the paper's managing 

editor concluded that "in spite of repeated attempts at reform, 

coal remains an outlaw industry--operating outside the normal 

restraints that apply to other American enterprises." "Dying 

for Coal," An American Tragedy, Reprint December 1982 of a 

series that ran from May 2 to May 10, 1982 in The Courier-Journal, 

Louisville, Kentucky. In an editorial published on July 11, 

1984, the Courier-Journal noted that "Mine inspectors who hear 

more talk from the higherups about 'cooperation' with safety 

4/ See Cost/Benefit Analysis of Deeo Mine Federal Safetv 

Legislation and Enforcement, Consolidation Coal Company,-

December 1980, at 95. This study recommends outright repeal 

of miners' rights to participate in safety inspections. 

27?6 
law violators than about firmness are likely to feel that 

safety isn't the first order of business~" 

The legislative history of section 103(f) shows 

these public perceptions moved Congress to provide for walkaround pay when it amended the Mine Safety Law in 1977. In 

1982, the D.C. Circuit held the participation and pay rights 

were coextensive and included spot inspections. Recently 

the Third and Seventh Circuits agreed. The time is ripe, 

therefore, for disposition of these matters. 

I 

SOCCO II - Docket LAKE 82-76-R 

On March 30, 1982, a contract miner participated in the 

physical inspection of the Meigs No. 1 Mine for the purpose of 

determining compliance with the provisions of the mandatory 

safety standards relating to the control, suppression and 

removal of excessive accumulations of explosive and noxious 

gasses. This spot inspection for extrahazardous conditions 

was accomplished under the authority of sections 103.(a) (3), 

(4), and (i) of the Mine Act. When the operator refused to 

pay the walkaround pay mandated by section 103(f), a federal 

mine inspector issued a 104(a) citation. The citation was 

abated when the operator paid the miner for the time spent 

in participating in the 103(i) spot inspection. Thereafter, 

the operator filed a timely notice of contest of the citation 

claiming section 103(f) of the Act does not provide for 

compensation of miners' representatives who accompany MSHA 

inspectors during spot inspections. 

The Union challenges SOCCO's right to review on the 

ground that payment of the penalty assessed, $20, mooted the 

issues contested and requires dismissal of the review 

proceeding. I find it unnecessary to address this question 

because I find SOCCO's challenge is barred by its prior 

litigation of the identical legal issue in SOCCO I, supra. 

There is no merit to SOCCO's claim that collateral 

estoppel does not apply to "unmixed'' or pure questions of law. 

Restatement (Second) Judgments§§ 27, 28 (1982). While it is 

true that issue preclusion has never been applied to issues 

of law with the same rigor as issues of fact, it is todav well 

settled that issue preclusion applies to "issues of law and 

issues of fact if those issues were conclusively determined 

in a prior action." United States v. Stauffer, 78 L Ed. 388, 

393 (1984); United States v. Mendoza, 78 L Ed. 379, 383-384 

(1984); Montana v. United States, 440 U.S. 147, 153 (1979); 

Carr v. District of Columbia, 646 F.2d 599, 608 (D.C. Cir. 

1980). 
Nor are the factual difference between this case and 

SOCCO I of any significance. Here as in Stauffer and 

Montana, supra, the separable facts exception is inapplicable. 

Where there is a close alignment of time and subject matter 

between two violations so that they stem "from virtually 

identical facts" relitigation of a question of law predicated 

on those facts is precluded. United States v. Stauffer, 

supra at 393-394; Montana v. United States, supra at 162-

163. The underlying policy considerations are well stated in 

the Restatement: 

When the claims in two separate actions between 

the same parties are the same or are closely 

related •.. it is not ordinarily necessary to 

characterize an issue as one of fact or of law 

for issue preclusion . In such a case, 

it is unfair to the winning party and an unnecessary burden on the courts to allow repeated 

litigation of the same issue in what is essentially 

the same controversy, even if the issue is regarded 

as one of "law." Restatement (Second) Judgments 

§ 28 comment b (1982). 

Where, as here, there is an identity of parties and legal 

issues and where, as here, SOCCO has twice had a full and fair 

opportunity to litigate the right of a miner to walkaround 

pay, I find accepted principles of issue preclusion, 

whether characterized as res judicata or collateral, 

estoppel operate to bar further redundant litigation by 

SOCCO of the controlling question of law involved. I 

further find that even if principles of issue preclusion 

were inappliable relitigation or reconsideration of the 

question of law presented is foreclosed by the doctrine of 

stare decisis or controlling precedent. UMWA v. FMSHRC, 

supra; Consolidation Coal Company v. FMSH~No. 83-3463 

(3d Cir. August 13, 1984); Monterey Coal Company v. FMSHRC, 

No. 83-2651 (7th Cir. September 14, 1984). 

Accordingly, I find SOCCO's challenge to the instant 

citation must be denied. 

II 

SOCCO's Affiliates 

On March 29, 1982, a contract miner participated in a 

spot physical inspection of Windsor Power's Beech Bottom Mine 

for the purpose of determining whether a violation of the Mine 

'.~778 
Act or a mandatory health or safety standard existed. 5/ 

When the operator refused to compensate the walkaround-for 

his time, a federal mine inspector issued a 104(a) citation 

for a violation of section 103(f) and a penalty of $84 was 

proposed. 

On March 31, 1982, a contract miner participated in a 

spot physical inspection of Price River's No. 3 Mine for the 

purpose of determining compliance with the mandatory safety 

standards relating to the control, suppression and removal of 

explosive and noxious gasses. 6/ This inspection was 

accomplished under the authority of section 103(i) of the 

Mine Act. When the operator refused to compensate the 

walkaround for his time, a federal mine inspectcr issued a 

104(a) citation for a violation of section 103(f) and a 

_penalty of $20 was proposed. 

There is no dispute about the fact that both inspections 

were compliance or enforcement inspections conducted pursuant 

to the authority of section 103(a) (3) and (4) of the Mine Act. 

UMW v. FMSHRC, supra, at 623-624, nn. 27, 28. It is also 

conceded that both inspections were spot inspections that 

were not part of a regular inspection. Although not defined 

in the statute the accepted understanding is that a "regular" 

inspection is one of the four complete inspections required 

each year under section 103(a). In addition to these "regular" 

inspections of the entire mine, the Secretary is authorized 

to conduct "spot" inspections. 7/ These inspections are more 

limited in scope and purpose. See 43 Fed. Reg. 17547 (1978). 

Typically they involve the physical inspection of a particular 

area or problem in the mine and usually focus on one or 

more types of safety or health hazards such as electrical, 

roof control, ventilation, haulage or respirable dust control. 

Under section 103(i), spot inspections are required to be 

conducted with a certain frequency at mines which liberate 

2f Docket Nos. WEVA 82-243-R and 82-303. This inspection was 

initiated by a code-a-phone (hotline) complaint. See section 

103 (g) (1), (2) of the Act, 30 C.F.R. Part 43. 

6/ Docket Nos. WEST 82-166-R and 83-2. 2/ Section 103(a) provides the general authority for all 

physical inspections of mines. In addition to the four regular 

inspections, it directs the Secretary to make "frequent 

inspections and investigations" for the purpose of "(3) determining whether an imminent danger exists, and (4) determining 

whether there is compliance with the mandatory health or 

safety standards or with any citation, order or other requirements of this Act." 

')~"""f9 

I-~ I ' 
excessive amounts of methane or have other extrahazardous 

conditions. Spot inspections may also be triggered by a 

miner's complaint of a hazardous condition under section 103(g) 

of the Act. Sections 202(g) and 303(x) also provide for 

inspections for the purpose of determining compliance with the 

respirable dust standards and with all the safety and health 

standards in the case of newly reopened mines. 

Windsor ~nd Price River, filed timely challenges to both 

the validity of the citations and the penalty assessments. 

The ground asserted was that previously litigated by their 

affiliate, SOCCO, namely whether section 103(f) of the Mine 

Act requires an operator to pay a walkaround for the time 

spent in participating in a spot inspection. 

Windsor and Price River are together with SOCCO wholly 

owned subsidiaries of two public utility operating companies, 

Ohio Power Company and Indiana and Michigan Electric Company. 

The operating companies are in turn wholly owned subsidiaries 

of American Electric Power Company (AEP), a public utility 

holding company. The AEP Companies operate approximately 

thirty underground and surface coal mines throughout the 

United States. They provide service to residential and 

industrial utility customers in a seven state region. As a 

group the AEP Companies constitute one of the largest coal 

producers in the United States, and the American Electric 

Power System is the largest user of coal in the United States. 

Because of the cost and labor relations considerations involved, 

the AEP Companies have been in the forefront of the industry's 

efforts to limit the scope of the walkaround pay and self-help 

policing provisions of the Mine Act. 

Under the control and direction of counsel for the AEP 

Companies, SOCCO has twice previously litigated through the 

Commission and the United States Court of Appeals for the 

District of Col~mbia Circuit the precise issue presented in 

these proceedings by Windsor and Price River. SOCCO I, 

supra. Because of the substantial identity of interest of 

AEF and its three subsidiaries with respect to the controlling issue of law twice previously decided adversely to 

SOCCO, the Secretarv and the UHWA claim Windsor and Price 

River are estopped ~ither as parties or privies, or both, 

to relitigate the issue decided in SOCCO I. 

In response, Windsor and Price River, without admitting 

or denying there is a sufficient identity of interest to 

create an estoppel or that the AEP Companies have had a full 

and fair opportunity to litigate the controlling question of 

statutory interpretation, urge that as a matter of policy· 
collateral estoppel (issue preclusion) should never be invoked 

to preclude relitigation across the circuits of a legal issue 

of national import or with substantial public policy implications. See A.rnerican Med. Intern. v. Sec. of HEW, 677 F.2d 

118, 121-124 (D.C. Cir. 1981). 

In the wake of Parklane Hosiery Co. v. Shore, 439 U.S. 

322 (1979) offensive, as well as defensive, collateral 

estoppel is a~ailable to protect litigants from the burden of 

relitigating an identical issue with the same party or his 

privies. 8/ Id. at 326. Consequently, where a right, or 

question of fact or law is distinctly put in issue and 

directly determined by a court of competent jurisdiction a 

party or his privy is collaterally estopped from relitigating 

the issue in a subsequent action. The fact that the parties 

are not precisely identical is not fatal to the assertion of 

issue preclusion. A judgment is "res judicata in a second 

action upon the same claim between the same parties or those 

in privity with them." Sunshine l'mthracite Coal Co. v. 

Adkins , 3 10 U . S . 3 81 , 4 0 2 ( 19 4 0 ) . 

But while Parklane made the doctrine of mutuality a dead 

letter under the federal law of collateral estoppel, the case 

left undisturbed the requisite of privity, i.e., that 

collateral estoppel can only be applied against parties who 

have had a prior "full and fair" opportunity to litigate 

their claims. 439 U.S. at 332. The right to a full and 

fair opportunity to litigate an issue is, of course, protected 

by the due process clause of the Constitution. Blonder-Tongue 

Labs, Inc. v. Univ. of Illinois Foundation, 402 U.S. 313, 329 

(1971). To ensure that nonparty preclusion comports with the 

Constitution federal courts have established guidelines for 

application of res judicata and collateral estoppel to nonparties. Foremost among these is that the question should be 

approached on a case-by-case basis, looking at the "practical 

realities" of individual litigation. Butler v. Stover Bros • 

.§./ Offensive use of collateral estoppel occurs when a 

plaintiff seeks to foreclose a defendant from relitigating 

an issue the defendant has previously litigated unsuccessfully 

in another action against the same or a different party. 

Defensive use of collateral estoppel occurs when a defendant 

seeks to prevent a plaintiff from relitigating an issue the 

plaintiff has previously litigated unsuccessfully in another 

action against the same or a different party. Parklane 

Hosiery, supra, at 326, n. 4. 

2781 
Trucking Co., 546 F.2d 544, 551 (7th Cir. 1977}; Carr v. 

District of Columbia, 646 F.2d 599, 605 (D.C. Cir-:-1980}. 

It is also pertinent to observe that the burden of avoiding 

nonmutual preclusion is on the party who asserts lack of a 

full and fair opportunity to litigate in the first action. 

18 Wright-Cooper-Miller, Federal Practice and Procedure 

§ 4465, p. 592 (1981). 

Several types of corporate relationships are considered 

sufficiently close to justify preclusion by privity. Among 

these is an unrebutted showing that a nonparty parent such 

as AEP who presumably financed and certainly controlled much 

of the SOCCO I litigation has also financed and·controlled 

the instant litigation by Windsor and Price River. See 

United States v. Montana, 440 U.S. 147, 158-162 (1979}. 

Although subsidiaries are not in privity with their parent 

merely by virtue of complete ownership other factors may 

establish the privity necessary to support an assertion of 

claim preclusion. Thus, where, as here, the undisputed 

facts show that AEP not only controlled the prior litigation 

but has been represented in both by the same corporate or 

in-house counsel who dominated and controlled both litigations it is appropriate to find the necessary privity. IT&T 

v. General Tel. & Electronics Corp., 380 F. Supp. 976, 982-

984 (D.N.C.) remanded on other grounds 527 F.2d 1162 (4th 

Cir. 1975). Further, I find that in view of the commonality, 

if not identity, of financial and proprietary interests of 

the AEP Companies in the walkaround pay issue and the control 

over the legal strategy exercised by AEP's corporate counsel, 

nonparty preclusion with respect to Windsor and Price River 

is appropriate. In IT&T, supra, the court held that, "If 

identity of interest were the sole criteria in determining 

privity, the Court would have no hesitancy in finding that the 

subsidiaries to be sufficiently represented by GTE to be in 

privity with it" in the prior action. Id. at 982. Especially 

pertinent to this case was the court's finding that "Privity 

may be established by showing that a person was represented 

in a prior action by a dqminant personality, as well as by 

showing that the person ~ctually controlled the prior action." 

Ibid. 

The record shows the walkaround pay issue is one 

common to the corporate business of all the AEP Companies. 

Consequently, when AEP undertook to litigate the walkaround 

issue through SOCCO it undertook an action that affected 

the entire corporate business of the AEP Companies. As the 

holding company, there is no doubt that AEP has substantially 

dominated, directed and controlled all of the AEP Companies' 

walkaround litigation. That a subsidiary corporation is in 

privity with its parent with respect to the common corporate 

business is well settled. Jefferson School of Social Science 

v. SACB, 331 F.2d 76, 83 (D.C. Cir. 1963}. 
Another test of the propriety of nonparty preclusion is 

whether the interest of the nonparties, Windsor and Price 

River, was adequately represented by AEP and SOCCO in the 

prior litigation. I find that it was. 

The record in the SOCCO I litigation and this litigation 

conclusively demonstrates that corporate counsel for the AEP 

Companies employed outside counsel in these cases to present 

the same arguments in favor of bifurcation of the walkaround 

rights as were presented to the Commission and the Court of 

Appeals in the original SOCCO and Helen Mining matters. 

While those arguments and proofs did not prevail, there is 

no suggestion that the failure was due to any lack of incentive 

or competence in their presentation. 

Finally, the record shows that Windsor and Price River 

could have intervened and fully participated in the prior 

litigation as well as that the AEP Companies had full control 

over the resources necessary to permit them to exhaust 

their opportunities for appeal and to petition for certiorari 

in the prior litigation. Restatement (Second) Judgments 

§ 39 comment c (1982); Motion of AEP Companies to file Amicus 

Brief and Amicus Brief in Support of Petition for Certiorari 

in Helen Mining Company, et al. v. Donovan and UMWA, Supreme 

Court Docket No. 82-33, October Term 1982, filed September 9, 

1982. 

Under the circumstances, I find it fair and just to 

preclude AEP and its affiliates, Windsor and Price River, 

from relitigating further the spot inspection-walkaround 

issue. 9/ Pan American Match Inc. v. Sears Roebuck & Company, 

454 F.2d-871, 874 (1st Cir.), cert. denied 409 U.S. 892 

(1972) (judgment in action in which wholly owned subsidiary 

was a party binding on parent where it was aware of the 

litigation and participated in the defense) ; Astron 

Industrial Associates, Inc. v. Chrysler Motors Corp., 405 

F.2d 958, 961 (5th Cir. 1968); Restatement (Second) Judgments 

§ 59(3) comment e (a controlling owner such as a parent 

corporation ordinarily has full opportunity and adequate 

incentive to litigate issues commonly affecting it and its 

2J In United States v. Montana, supra, the Court observed 

that all the policy considerations that underlie res judicata 

and collateral estoppel "are . . implicated when nonparties 

assume control over litigation in which they have a direct 

financial or p~oprietary interest." It further noted that 

it is inaccurate to refer to the principle of nonparty 

preclusion as a matter of "privity" where, as here, a nonparty like AEP has taken a "laboring oar'' in the conduct of 

the earlier litigation. Such circumstances, the Court held, 

actuate all the principles of party estoppel. 440 U.S. 

at 154-155. 

2783 
subsidiaries especially where it is a single enterprise 

entity operating under a multiple legal form). 

The federal law of res judicata and collateral estoppel 

holds a person may be bound by a judgment or administrative 

adjudication 10/ even though not a party if one of the 

parties to the-suit is so closely aligned with his interests 

as to be his virtual representative. In the present context 

it is apparent that Windsor and Price River had a substantial 

identity of interest and therefore privity with AEP and 

SOCCO in the first litigation of the spot inspection-walkaround 

issue. Further since AEP and SOCCO were responsible for 

protecting the beneficial interest of Windsor and Price River 

in the single enterprise entity's common interest in avoiding 

liability for walkaround pay it is appropriate to apply the 

principles of collateral estoppel to their attempt to 

relitigate the issue. Restatement (Second) Judgments comment 

c; Aerojet-General Corporation v. Askew, 511 F.2d 710, 719 

(5th Cir. 1975); Lawlor v. National Screen Service Corporation, 

349 U.S. 322, 329 n. 19 (1955); Chicago, R.I. Ry. Co. v. 

Schendel, 270 U.S. 611 (1926); Sea-Land Services v. Gaudet, 

414 U.S. 573 (1974). 11/ 

The doctrinal and conceptual basis for the virtual 

representation doctrine is that: 

Society allows a reasonable adjustment of the 

demands of due process. Thus an individual apparently 

can be held by a prior adjudication so long as his 

interests were adequately represented in the prior 

suit. The concept of preclusion against a nonparty 

is strikingly similar to the class suit in that if 

there is adequate representation of the interests 

of the nonparty he can be bound by the judgment in 

the earlier suit. The interest of society in preventing unnecessary duplicative litigation is closely 

akin to the interest of society--the expedient 

10/ The same policy reasons that underlie use of collateral 

estoppel in judicial proceedings are equally applicable when 

an administrative agency acts as an adjudicatory body. 

Chisholm v. Defense Logistics Agency, 656 F.2d 42 (3d Cir. 

1981); Restatement (Second) Judgments § 83 (1982). 

11/ In Performance Plus Fund, Ltd. v. Winfield & Co., 443 

~Supp. 1188, 1191 (D. Calif. 1977), commonality of interest 

and common control of formally separate parties was invoked 

in applying the virtual representation doctrine. 
administration of justice--which was urged for the 

use of the class suit. Vestal, Res Judicata/Preclusion: Expansion, 47 So. Cal. L. Rev. 357, 378-379 

(1974). 

See also, Note, Collateral Estoppel of Nonparties, 87 Harv. 

L. Rev. 1485, 1502 (1974), which suggests that parties' 

apparent tactical maneuvering to create multiple opportunities to prevail upon the same issue justifies giving less 

weight to a litigant's attempt to manipulate due process 

concerns in order to relitigate. 

I conclude that in view of the parent-subsidiary relationship between and among the AEP Companies, the control 

exercised by the parent AEP over the prior litigation, and 

the identity and commonality of interest both financial 

and proprietary of the entire AEP enterprise entity in the 

walkaround issue, the AEP Companies have had a full and fair 

opportunity to litigate that issue both directly and 

vicariously. For these reasons, I reject the suggestion 

that Windsor and Price River be permitted to relitigate the 

walkaround issue previously determined in SOCCO I. 

With respect to the claim that application of the 

doctrine of collateral estoppel would, in this case, violate 

the policy against freezing important questions of law on the 

basis of a single circuit's interpretation, I note that the 

Supreme Court has recently held that while the presence of 

such a question does preclude the use of nonmutual estoppel 

against the government, it may be employed against a private 

party. United States v. Mendoza, 78 L Ed 379, 386-387 

(1984). In Mendoza, the Court confirmed that while its 

expanded concept of nonmutual offensive estoppel is fully 

applicable to disputes between private parties or between 

private parties and the government where the government 

prevails, it is for reasons peculiar to government litigation 

not applicable where the government loses the first suit. 

Thus the Court found that while "no significant harm 

flows from enforcing a rule that affords a [private] litigant 

only one full and fair opportunity to litigate an issue" 

nonmutual estoppel in cases where the government does not 

prevail "would substantially thwart the development of 

important questions of law by freezing the first final 

decision rendered on a particular legal issue. Allowing 

only one final adjudication would deprive this Court of the 

benefit it receives from permitting several court of appeals 

to explore a difficult question before this Court grants 

certiorari." Id. at 384, 385. With respect to the lack of 

symmetry of such a rule, the Court cited its earlier decision 

in Standefer v. United States, 447 U.S. 10 (1980) where it 
held that "While symmetry of results may be intellectually 

satisfying, it is not required. 12/ Id. at 25. 

The asymmetrical rule with respect to nonmutual 

estoppel does not apply however to cases where a private . 

party seeks to preclude relitigation by invoking the principle 

of mutual defensive estoppel against the government. In 

United States v. Stauffer Chemical Co., 78 L Ed 388 (1984), 

the Court held that Stauffer Chemical could prevent the EPA 

from relitigating a question of law of nationwide application with Stauffer. Application of an estoppel against the 

government in a case where it is litigating the same issue 

with the same party avoids the problem of freezing development of the law since the government is free to litigate 

the same issue in the future with other litigants. Id~ at 

395; United States v. Mendoza, supra, at 387. Accord: 

continental Can Co. v. Marshall, 603 F.2d 590 (7th Cir. 1979). 

I conclude, therefore, that the operators assertion 

that nonmutual estoppel, whether offensive or defensive, may 

not be applied to preclude relitigation by Windsor or Price 

River of the spot inspection-walkaround pay issue is without 

merit. 

Finally, the operators contend that under the doctrine 

of administrative nonacquiesence the trial judge should 

decline to follow the decision of the D.C. Circuit in UMWA 

v. FMSHRC, supra because it is patently erroneous. 13/~~ 

12/ In American Med. Intern. v. Sec. of HEW, supra, relied 

upon by Windsor and Price River, the D.C. Circuit recognized 

the lack of symmetry in the rule. It noted: "If private 

parties can litigate the issue between themselves, the law 

cannot be frozen by a single ruling, for they will not be 

bound by prior adjudications with which they were not 

associated. Furthermore, the governmental unit must have 

lost the first case presenting the question; for if it won 

the first but loses subsequently, it is sheltered by 

Parklane•s·caveat on inconsistent prior decisions." 677 

F.2d at 121 n. 24. Compare Jack Faucett Associates, Inc. 

v. AT&T, No. 83-1735, D.C. Cir. September 11, 1984, Slip 

Op.~22-23. 

13/ The operators have not suggested that an agency may use 

a-policy of nonacquiesence to avoid application of nonmutual 

preclusion within a circuit. The adoption of such a policy 

by the Department of Health and Human Services with respect 

to disability benefit cases arising under Titles II and XVI 

of the Social Security Act has been the subject of much 

debate. See, Legislative History, Social Security Disability 

Benefits Reform Act of 1984, Congressional Record for 

September 19, 1984, Conference Report, at H9831. 

?786 
I accept for the purposes of deciding this issue that 

an administrative agency charged with the duty of formulating 

uniform and orderly national policy in adjudications is not 

bound to acquiesce in the views of the U.S. courts of 

appeals that conflict with those of the agency. S & H 

Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1278-1279 

(5th Cir. 1981). 14/ Even so, the Commission has not opted 

to declare its nonacquiesence in the D.C. Circuit's interpretation of the walkaround pay provision. In remanding Helen 

Mining, SOCCO and the other walkaround decisions the Commission explicitly directed that they be disposed of in a manner 

consistent with the D.C. Circuit's interpretation. 4 FMSHRC 

856 (1982) . Since then the Commission has repeatedly declined 

to revisit the issue. 

Moreover, if I were free to "nonacquiesce" in the 

decision of the D.C. Circuit I would not do so. As my decisions 

show, I have from the beginning firmly adhered to the position 

enunciated by the D.C. Circuit. Further, my confidence that 

the result reached was, and is, correct has been reinforced 

by recent decisions of the Third and Seventh Circuits, supra. 

Both stare decisis and collateral estoppel are, in part, 

reflections of confidence in the correctness of a prior 

decision. At this juncture my confidence in the correctness 

of the D.C. Circuit's decision is close to absolute. 15/ 

Any doubts as to the application of mutual or nonmutual 

collateral estoppel against Windsor and Price River, which 

are located in circuits that have not passed on the reach of 

the walkaround pay provision, are, of course, resolved by 

14/ Chief Judge Godbold's opinion, "assumed without deciding 

that the Commission is free to decline to follow decisions of 

the courts of appeals with which it disagrees, even in cases 

arising in those circuits." Other circuits have not been so 

generous. Ithaca College v. NLRB, 623 F.2d 424 (2d Cir.) 

cert. denied 449 U.S. 975 (1980); Allegheny General Hospital 

v. NLRB, 608 F.2d 965 (3d Cir. 1979); Mary Thompson Hospital, 

Inc-:-V:- NLRB, 621 F.2d 858 (7th Cir. 1980); Yellow Taxi 

company ~inneapolis v. NLRB, 721 F.2d 366 (D.C. Cir. 

1984); NLRB v. HMO Int'l, 678 F.2d 806 (9th Cir. 1982); 

NLRB v.~tern Smelting & Refining Corp., 598 F.2d 666 

(1st Cir. 1979). 

15/ In passing, I note that the Solicitor General has taken 

the position that the Supreme Court's decision in United States 

v. Mendoza, supra, furnishes support for the view that intracircuit nonacquiesence is constitutionally sound, except to 

the extent that application of such nonacquiesence would 

contravene the doctrines of res judicata or mutual offensive 

or defensive collateral estoppel. Ltr. of May 7, 1984 from 

Rex Lee to Senator Dole, Chairman, Senate Finance Committee 

(reprinted in Congressional Record for September 19, 1984, 

Sll454-55). Compare United States v. Estate of Donnelly, 

397 U.S. 286, 294-295 (1970). 

2787 
application of the principle of state decisis. See United 

States v. Stauffer Chemical Co., supra, (reliance on stare 

decisis is no more burdensome than reliance on collateral 

estoppel where refusal of preclusion is dictated by considations of evenhanded application of the law to different 

parties similarly situated). 

With respect to the claim that inquiry by other, as yet 

uncommitted, circuits should not only not be foreclosed but 

should be encouraged, I am constrained to point out that 

since these cases arose two other circuits have announced 

their agreement with the D.C. Circuit. Thus, in August 

1984, the Third Circuit upheld an ALJ's decision against 

Consolidation Coal Company that assessed a penalty of $100 

for a violation of the walkaround provisions of section 

103(f). There the court stated: 

We find ourselves in agreement with the District 

of Columbia Court--that spot inspections of the 

type challenged here are authorized by and made 

"pursuant to subsection 103(a) ." The narrow 

reading urged by the company is inconsistent 

with the declared intent of Congress to promote 

safety in the mines and encourage miner participation in that effort. See Magna Copper Company 

v. Secretary of Labor, 645 F.2d 694, 697 (9th 

Cir. 1981). 

The Court also rejected the suggestion that the interpretation 

of subsection 103(f) by the late Congressman Perkins should 

be considered controlling. Consolidation Coal Company v. 

FMSHRC, No. 83-3463, decided August 13, 1984, Slip Op. at 

6-7. 

In September 1984, the Seventh Circuit after a comprehensive review of the identical issue declined Monterey 

Coal Company's invitation to disagree with the D.C. Circuit 

and upheld an ALJ's decision that followed that of the D.C. 

Circuit. In concluding that miners "walkaround pay rights" 

are coextensive with their "participation rights" the court 

held (1) that all spot compliance or enforcement inspections 

create walkaround pay rights and (2) that the late Congressman Perkins' remarks to the contrary cannot be given decisive 

weight. Addressing the latter, the court, after an exhaustive 

and conscientious review of the possible motive and reasons 

for Mr. Perkins' otherwise inexplicable action stated it 

agreed with the D.C. Circuit's conclusion which was that the 

'.)'"")88 

~- { 
Congressman's remarks were inspired by a desire to provide 

in the legislative history a basis for undermining in the 

courts what the miners had won from Congress. A more 

charitable view is that Congressman Perkins, an acknowledged 

master of the legislative compromise, inserted the spurious 

legislative history as part of a political tradeoff for 

industry support for the Black Lung Benefits Reform Act of 

1977. . 

In conclusion, it appears that events have overtaken 

all of the operators arguments. Consequently, whether they 

are rejected on the ground of collateral estoppel and issue 

preclusion or under the rubrics applicable to res judicata 

or stare decisis makes little practical difference at this 

time. Needless to say, even if this trial judge were to 

revisit the walkaround pay issue de novo he would once again 

conclude that section 103(f) of the Mine Act provides for 

compensation to miners who participate in spot safety and 

health inspections. I find, therefore, that the violations 

charged did, in fact, occur. 

Turning to the amounts of the penalties warranted for 

the violations found, I conclude, after considering the 

applicable statutory criteria, that because the operator's 

actions were (1) knowing and (2) constituted a repetitive 

and deliberate flouting of the law the penalties best calulated to deter future violations and encourage voluntary 

compliance are $500 each for the two penalty cases that are 

before me. 

Accordingly, it is ORDERED that the three challenges to 

the validity of the citations in question be, and hereby 

are, DENIED. It is FURTHER ORDERED that for the two violations found the operator pay a total penalty of $1,000 on 

or before Friday, January 25, 1985, and that subject to 

payment the captioned matters be DISMISSED. 

2?89 
Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

~-lail) 

Alvin J. McKenna, Esq., Alexander, Ebinger, Fisher, McAlister 

& Lawrence, Huntington Bank Bldg., 11th Floor, 17 S. High 

Street, Columbus, OH 43215 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

I . I eJp 

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