AUGUST 1988 

COMMISSION DECISIONS 

08-15-88 Secretary of Labor on.behalf of Joseph Gabossi WEST 86-24-D Pg. 953 

v. Western Fuels-Utah, Inc. 

08-19-88 El Paso Sand Products, Inc. CENT 88-53-M Pg. 960 

08-19-88 Southern Ohio Coal Company WEVA 86-190-R Pg. 963 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-30-88 (misprint in June issue) Western Fuels, Utah WEST 87-166-R Pg. 969 

08-05-88 Blue Circle, Inc. CENT 87-77-M Pg. 990 

08-09-88 Gerard Sapunarich v. Lehigh Portland Cement YORK 88-29-DM Pg. 1019 

08-12-88 Secretary of Labor on behalf of Elliott Rowe KENT 88-57-D Pg. 1022 

and others v. Johnson Coal Co., Inc. 

08-16-88 Joseph Stora v. Southern Ohio Coal Company WEVA 88-96-D Pg. 1024 

08-17-88 River Cement Company CENT 88-4-M Pg. 1027 

08-17-88 Ozark-Mahoning Company LAKE 88-4-M Pg. 1035 

08-19-88 Ken-Mor Stone, Inc. KENT 88-83-M Pg. 1075 

08-19-88 Gary L. Mccurdy v. Helvetia Coal Company PENN 88-254-D Pg. 1076 

08-19.-88 Arnold Sharp v. Big Elk Creek Coal Co. KENT 88-109-D Pg. 1077 

08-19.-88 Baltazar Madrid v. Kaiser Coal Corporation WEST 87-170-D Pg. 1080 

08-19-88 Garden Creek Pocahontas Company VA 88-9 Pg. 1093 

08-22-88 Charles H. Sisk v. E.R. Mining.(Trucking), Inc. KENT 87-212-D Pg. 1101 

08-22-88 Troy W. Conway, Sr. v. Peabody Coal Company KENT 88-128-D Pg. 1107 

08-26-88 Secretary of Labor on behalf of Michael Price SE 87-128-D Pg. 1108 

and Joe John Vacha v. Jim Walter Resources 

08-31-88 David Lee Jack v. The Helen Mining Company PENN 88-138-D Pg. 1111 

ALJ ORDERS 

08-26-88 Rochester & Pittsburgh Coal Company PENN 88-243-R Pg. 1119 

08-29-88 Boorhem-Fields, Inc. CENT 88-56-M Pg. 1121 
AUGUST 1988 

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

'FMC Wyoming Corporation v. Secretary of Labor, MSHA, Docket No. WEST 86-43-RM, 

etc. (Judge Cetti, June 28, 1988). 

Secretary of Labor, MSHA v. Mid-Continent Resources, Inc., Docket No. WEST 87-88. 

(Judge Morris, July 1, 1988). 

Secretary of Labor, MSHA v. El Paso Rock Products, Inc., Docket No. CENT 88-53-M. 

(Pefault Order of July 11, 1988). 

Review was denied in the following cases during the month of August: 

Secretary of Labor, MSHA v. H.B. Zachry Company, Docket No. CENT 88-29-M. 

(Interlocutory Review of May 23, 1988 Order fasued by Judge Melick). 

Western Fuels, Utah, Inc. v. Secretary of Labor, MSHA, Docket No. WEST 87-166-R, 

etc. (Judge Lasher, June 30, 1988). 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

August 15, 1988 

On Behalf of JOSEPH GABOSSI 

v. 

WESTERN FUELS-UTAH, INC. 

Docket No. WEST 86-24-D 

Before: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

In this case Commission Administrative Law Judge John J. Morris 

held that Western Fuels-Utah, Inc. ("Western Fuels") did not violate the 

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

(1982) ("Mine Act"), in discharging complainant Joseph Gabossi. 

9 FMSHRC 1481 (August 1987) (ALJ). Gabossi had complained to Western 

Fuels and to the State of Colorado, Division of Mines, that the 

underground reporting structure at the Deserado Mine created unsafe 

working conditions, and that it violated Colorado state law. Judge 

Morris concluded that the firing was lawful because Western Fuels was 

motivated by Mr. Gabossi's clashes with mine management over the 

underground reporting structure in effect at Western Fuels' Deserado 

Mine and that his complaints did not fall within the protective umbrella 

of the anti-discrimination provisions of section lOS(c)(l) of the Mine 

Act, 30 U.S.C. § 81S(c)(l). lf We disagree. 

!/ Section lOS(c)(l) provides: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

Act because such miner, representative of miners or 

applicant for employment has filed or made a 

complaint under or related to this Act, including a 

complaint notifying the operator or the operator's 

agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

953 
Because Gabossi's conflict with Western Fuels regarding the 

Deserado Mine's underground reporting structure was safety related, a 

fact acknowledged by the judge, we conclude that Gabossi engaged in 

activity protected by the Mine Act. Accordingly, we reverse the 

decision of the judge and remand the matter for further proceedings 

consistent with this decision. 

I. 

Gabossi began working for Western Fuels on October 1, 1982. From 

that time until he was discharged on January 30, 1985, he served in a 

dual capacity of mine foreman and underground coal production 

superintendent at the Deserado Mine located in Rio Blanco County, 

Colorado. At the time Gabossi began working for Western Fuels John 

Bootle was the mine manager. Gabossi testified that, under Bootle, he 

coordinated the underground maintenance activities with the activities 

of his production crew. Tr. 16-17, 119. In June of 1983, Raja Upadhyay 

replaced Bootle as mine manager. 

On June 29, 1983, Upadhyay issued an organizational memorandum 

setting forth the responsibilities of the Deserado Mine's four 

superintendents. Exh. R-1. Pursuant to that organizational 

memorandum, Gabossi was in charge of underground coal production while 

Gordon Burnett was in charge of underground maintenance. Although the 

record is unclear as to whether Gabossi still coordinated the activities 

of the maintenance and production departments following the issuance of 

this organizational memorandum, Gabossi testified that from that time 

until February of 1984 matters became "progressively worse" between 

himself and mine manager Upadhyay. Gabossi stated that on February 14, 

1984, Upadhyay informed him that he "wasn't to interfere with 

maintenance in any way." Tr. 151-52. 

In June of 1984, A.B. Beasley replaced Burnett as the maintenance 

superintendent. Beasley and Gabossi described their relationship as 

stormy. Tr. 20, 430. In that regard, Beasley had instructed 

health violation in a coal or other mine, or because 

such miner, representative of miners or applicant 

for employment is the subject of medical evaluations 

and potential transfer under a standard published 

pursuant to section 101 or because such miner, 

representative of miners or applicant for employment 

has instituted or caused to be instituted any 

proceeding under or related to this Act or has 

testified or is about to testify in any such 

proceeding, or because of the exercise by such 

miner, representative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this Act. 

30 U.S.C. § 815(c)(l). 

954 
maintenance.foreman Art Cordova to stop reporting his underground 

activities to Gabossi. Tr. 271-72. Cordova discussed Beasley's 

instructions with Upadhyay and was told by the mine manager to follow 

them• Tr. 273. In September or October of 1984, Upadhyay gave Gabossi 

his own "breakdown" mechanic for each production shift but preventative 

underground maintenance remained under the control of maintenance 

superintendent Beasley. Tr. 23. 

Gabossi's and Upadhyay's relationship continued to deteriorate. 

According to Upadhyay, in September, 1984, he and Gabossi had a heated 

discussion concerning disability payments to maintenance foreman 

Cordova. Tr. 468-69. Upadhyay testified that Gabossi "got real hot, 

upset, and left the office." Tr. 469. Upadhyay further testified that 

it was then that he decided to fire Gabossi. Id. 

On October 1, 1984, Gabossi told Upadhyay that he no longer wanted 

to be in charge of the mine when Upadhyay was away. Tr. 493. Also, 

during the first week of October 1984, Upadhyay traveled to Washington, 

D.C. to meet with his supervisor Lloyd Ernst. Upadhyay delivered to 

Ernst a handwritten memorandum requesting Ernst's permission to fire 

Gabossi. Tr. 469-70. Although Upadhyay stated in the memorandum that 

Gabossi is a "good miner, [who) takes his work very seriously and gets 

100% work out of his employees", Upadhyay also stated that Gabossi 

"can't work with others," that Gabossi is "very intimidating and tries 

to get his way in everything," that he "creates problem[s) with the 

union employees," and that his loyalty to Western Fuels is "nil or 

negative." Exh. R-5. Upadhyay testified that although he recommended 

that Gabossi be fired, Ernst chose Upadhyay's alternative suggestion 

that Gabossi be assigned more hours underground in the hope that he 

would become frustrated with his job and quit. This plan was set in 

motion upon Upadhyay's return to the Deserado Mine. Tr. 471, Exh. R-5. 

On November 6, 1984, Gabossi telephoned Boyd Emmons, District Coal 

Mine Inspector for the State of Colorado, Division of Mines. Tr. 27. 

Both Gabossi and Inspector Emmons testified that during their November 6 

conversation, Gabossi expressed his concern about mine safety as a 

result of the underground reporting structure at the Deserado Mine. 

Gabossi also told Emmons that he was concerned about losing his state 

foreman certification should an accident occur underground because of 

the reporting system~ Emmons' response was that as mine foreman Gabossi 

was responsible under section 34-24-101 of the Colorado Revised Statutes 

for all underground operations. Tr. 92. ~/ Although Gabossi did not 

11 Section 34-24-101(2) of the Colorado Revised Statutes provides: 

The mine foreman shall have full charge of all 

inside workings and of all persons employed therein, 

in order that all the provisions of articles 20 to 

30 of this title, insofar as they relate to his 

duties, shall be complied with, and so that the 

regulations prescribed for each class of workmen 

under his charge shall be carried out in the 

955 
file a written safety complaint with the state Division of Mines, he did 

ask Inspector Emmons to send him a letter setting forth his 

responsibilities as mine foreman under Colorado state law. Tr. 27-29, 

92-96. 

The November 9th Incident 

On Friday, November 9, 1984, Gabossi showed mine manager Upadhyay 

the letter that he had received from Inspector Emmons relating to his 

mine foreman duties under state law. Gabossi testified that he 

presented the letter to Upadhyay after Upadhyay had given him the 

additional responsibility of supervising an underground computer 

technician, as well as placing him in charge of surface belts running 

from the mine to the silos. Tr. 30. Gabossi stated that as soon as 

Upadhyay read Emmons' letter, Upadhyay "instantly got mad and told me 

that if I didn't like it, to quit •••• " Gabossi added that it was "quite 

a heated discussion." Tr. 31. 

Upadhyay agreed with Gabossi that the November 9 incident was a 

"big blowup" but testified that he was not presented with Inspector 

Emmons' letter until after Gabossi had asked whether Western Fuels 

intended to keep its promise to buy his house were he to leave the 

company, and after Gabossi had called him the "worst mine manager" for 

whom he had ever worked and had told him that he belonged in a "caste 

system." Upadhyay added that, in any event, the letter from the 

Colorado Division of Mines merely recited the relevant Colorado state 

law that he and Gabossi had previously discussed. Tr. 472-74. 

Gabossi 1 s Probation and Discharge 

Upadhyay testified that on Sunday, November 11, 1984, he called 

his supervisor, Lloyd Ernst, and again asked Ernst's permission to fire 

Gabossi. Ernst suggested that Gabossi be placed on probation. The next 

day, Upadhyay orally informed Gabossi that he was being placed on 

probation indefinitely. The primary reason given by Upadhyay for this 

action was Gabossi's inability to get along with other members of the 

management team. Tr. 475-76. While Gabossi admitted that Upadhyay told 

him that he was being placed on probation for not getting along with 

other senior staff members, Gabossi also stated that Upadhyay was 

"madder than hell" that he had contacted the Colorado Division of Mines. 

Tr. 32, 34. Gabossi received his letter of probation on November 16, 

1984. The letter read, in pertinent part: 

Exh. C-1. 

Your willingness to work harmoniously under the 

organization structure put into effect by Western 

Fuels has been negative. You have repeatedly 

objected to the idea of Maintenance Superintendent 

being responsible for underground maintenance. 

You have demonstrated your inability to work 

strictest manner possible. 

956 
Exh. C-3. 

harmoniously with other division heads and employees 

at the Deserado Mine. 

Gabossi testified that from November 12 to January 21, 1985, 

Upadhyay was "very cool, but civil" to him. Tr. 42. On January 21 

(just 9 days before he was fired) Gabossi reported to Upadhyay that one 

of maintenance superintendent Beasley's crew was falsifying 

permissibility inspection logs. Id. Gabossi further testified that he 

had little conununication with Upadhyay from January 21 to January 30, 

1985, when he was discharged. Tr. 42-43. 

Upadhyay testified that he had decided once again to seek 

permission from upper management to fire Gabossi after being informed on 

January 29, 1985, by maintenance superintendent Beasley that Beasley was 

leaving Western Fuels in part because of his inability to work with 

Gabossi. Tr. 485. Upadhyay additionally testified that inasmuch as he 

had lost maintenance superintendent Burnett and was about to lose 

Beasley because of Gabossi 1 s poor attitude, he decided to seek Gabossi's 

termination to prevent his also losing the next maintenance 

superintendent. Tr. 486. Upadhyay then contacted senior management in 

Washington, D.C. and received permission from Ken Holum, the company's 

General Manager, to fire Gabossi. Id. 

Gabossi and Upadhyay had another "heated argument" when Gabossi 

was given his termination notice on January 30, 1985. The termination 

notice reads in part: 

Exh. C-2. 

Western Fuels-Utah, Inc. at the Deserado Mine needs 

to have employees who can act together as a team, 

especially now in view of our small workforce. Your 

efforts have not been directed towards that end. 

For this reason, your employment shall be terminated 

at Western Fuels-Utah, Inc. effective inunediately. 

II. 

Following Gabossi 1 s discharged, the Secretary filed a 

discrimination complaint on his behalf with this independent Commission. 

The administrative law judge held in favor of Western Fuels and 

dismissed Gabossi 1 s complaint. We granted the Secretary's petition for 

discretionary review of the judge's decision. 

The judge below concluded that Gabossi had complained to Western 

Fuels management about the underground reporting structure because of 

his concerns over safety. 9 FMSHRC at 1504. The judge also concluded 

that Gabossi "was fired because of his continuing and extensive conflict 

with mine management over the company's failure to coordinate 

957 
underground mining activities." Id. Nevertheless, despite 

acknowledging that Gabossi's complaints concerning the company's 

underground reporting structure were "safety related," the judge held 

that those complaints were not protected under the Mine Act. 9 FMSHRC 

at 1505. The judge states that, "In short, [Gabossi's] unprotected 

activity, insofar as the federal Act is concerned, was his continual 

clash with management over the reporting structure." Id. The judge 

found that Gabossi's complaints were unprotected because neither the 

Mine Act nor the Department of Labor's Mine Safety and Health 

Administration's regulations contain a provision on a mine foreman's 

duties corresponding to section 32-24-101(2) of the Colorado Revised 

Statutes. 9 FMSHRC at 1505. See n. 2, supra. 11 

We hold that the judge erred in concluding that Gabossi's 

complaints to mine management regarding the Deserado Mine's underground 

reporting structure did not constitute activity protected under the Mine 

Act. In that regard, we note that the record amply supports the judge's 

determination that Gabossi's complaints to Western Fuels about the 

underground reporting structure were safety related. Gabossi testified 

that he had complained to Upadhyay about 10 to 15 times concerning the 

underground coordination problems between the production and the 

maintenance departments, but was told that maintenance was "none of his 

business." Tr. 22, 25-26, 143, 182. Gabossi was particularly concerned 

about ventilation changes made by the maintenance department which he 

believed could jeopardize the safety of the production crew. Tr. 21-22, 

179-80. 

Section 105(c)(l) of the Mine Act specifically prohibits 

discrimination against a miner who has "made a complaint under or 

related to this Act, including a complaint notifying the operator ••• of 

an alleged danger or safety and health violation." 30 U.S.C. 

§ 815(c)(l) (emphasis added). The fact that Gabossi's safety concerns 

may have been related to the Colorado statute does not make his 

objections regarding the Deserado Mine's underground reporting structure 

any less a safety complaint under the Mine Act. 

In light of our finding that Gabossi's complaints to mine 

management were protected under the Mine Act and in light of the judge's 

conclusion that Gabossi was fired because of his "continuing and 

extensive conflict with mine management over the company's failure to 

coordinate underground mining activities," the Secretary may have 

established a case of unlawful discrimination. Secretary on behalf of 

David Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 

(October 1980), rev'd on other grounds sub~ Consolidation Coal Co. 

v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of 

Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 

1981). It remains to be determined whether, on the basis of this 

record, Western Fuels successfully rebutted the Secretary's case or 

11 The judge, however, did find that Gabossi's contacting the 

Colorado Division of Mines and his presentation of State Inspector 

Emmons' letter to mine manager Upadhyay constituted activity protected 

under the Mine Act. 9 FMSHRC at 1505. 

958 
affirmatively defended against it. Pasula, supra; Robinette, supra. 

See also, Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th 

Cir. 1987); Donovan v. Stafford Construction Co.~ 732 F.2d 954, 958-59 

(D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983). 

Accordingly, we remand this case for the judge to make additional 

findings of fact and to analyze those findings in accordance with 

applicable case law. Furthermore, to the extent appropriate for the 

disposition of this case, on remand the judge should consider the 

November 9, 1985 incident involving Gabossi and mine manager Upadhyay, 

Gabossi being plc.ced on probation subsequently, and the events 

surrounding the discharge of Gabossi on January 30, 1985. 

For the reasons set forth above, the judge's decision is reversed, 

the complaint of discrimination is reinstated, and the case is remanded 

for further proceedings consistent with this decision. 

Richard V. 

5oyce A. Doyle, Cormnissi6ner 

959 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

EL PASO SAND PRODUCTS, INC. 

August 19, 1988 

Docket No. CENT 88-53-M 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Conunissioners 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On July 11, 

1988, Chief Administrative Law Judge Paul Merlin issued an Order of 

Default finding respondent El Paso Sand Products, Inc. ("El Paso"), in 

default for failure to answer the Secretary of Labor's civil penalty 

complaint and the judge's subsequent order to show cause and assessing a 

civil penalty of $345 proposed by the Secretary. By letter dated July 

19, 1988, addressed to Judge Merlin, El Paso asserted that it had 

previously responded in writing to the Secretary's civil penalty 

complaint and, apparently, the show cause order as well. Copies of 

these responses, attached to the July 19 letter, reflect that they were 

sent to the Secretary of Labor's Dallas, Texas, Solicitor's Office 

rather than to this independent Conunission. We deem El Paso's July 19 

letter to constitute a timely petition for discretionary review of the 

judge's default order. See,~· Mohave Concrete & Materials, Inc., 8 

FMSHRC 1646 (November 1986). We grant the petition and summarily remand 

this matter to the Judge for further proceedings. 

It appears from the record that El Paso, acting pro se, attempted 

to file timely written responses to the Secretary's civil penalty 

complaint and the judge's show cause order. Although these documents 

were apparently sent to the Secretary's Solicitor's Office and were not 

filed with the Conunission, as required, El Paso may have been 

attempting, in good faith, to comply with its filing responsibilities 

a factor that may justify relief from default. See, ~· Upright 

Mining, Inc., 9 FMSHRC 206, 207 (February 1987). Under these 

circumstances, we conclude that El Paso should be afforded the 

opportunity to explain its filing attempts to the judge, who shall 

determine whether relief from default is appropriate. Cf. Kelley 

Trucking Co., 8 FMSHRC 1867, 1869 (December 1986). 

960 
For the foregoing reason~, the judge's default order is vacated 

and this matter is remanded for proceedings consistent with this order. 

El Paso's attention is directed to the requirements that all further 

pleadings and papers in this proceeding must be filed with the Commission and copies of all such documents served on the Secretary of Labor. 

29 C.F.R. §§ 2700.S(b) & .7. lf 

~ 

~L£;t/AJ_vf.-v Richard V. Backley, Commissioner 

~tl~ oyc~e, CommiSSiOr 

Lasto~ Commissioner 

~1&_~ L. Clair Nelson, Commissioner 

lf Commission Procedural Rule S(b} states: 

Where to file. Until a Judge has been assigned to a 

case, all documents shall be filed with the 

Commission. After a Judge has been assigned, and 

before he issues a decision, documents shall be 

filed with the Judge, except for documents filed in 

connection with interlocutory review, which shall be 

filed with the Commission. After the Judge has 

issued his decision, documents shall be filed with 

the Commission. Documents filed with the Commission 

shall be addressed to the Executive Director and 

mailed or delivered to the Docket Office, Federal 

Mine Safety and Health Review Commission, 1730 K 

Street, N.W., Sixth Floor, Washington, D.C. 20006. 

29 C.F.R. § 2700.S(b). 

961" 
Distribution 

Roger Miller, Safety Director 

El Paso Sand Products, Inc. 

P.O. Box 9008 

El Paso, Texas 79982 

E. Jeffery Story, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

525 Griffin Street 

Suite 501 

Dallas, Texas 75202 

Chief Administrative Law Judge Paul Merlin 

Federal Hine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Hashington, D.C. 20006 

962 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOUTHERN OHIO COAL COMPANY 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATIDN (MSHA) 

v. 

SOUTHERN OHIO COAL COMPANY 

August 19, 1988 

Docket Nos. WEVA 86-190-R 

WEVA 86-194-R 

WEVA 86-254 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

At issue in this consolidated contest and civil penalty proceeding 

arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seg. (1982) ("Mine Act" or "Act"), is the validity of a notice 

to provide safeguard issued to Southern Ohio Coal Company ("Socco") 

pursuant to 30 C.F.R. § 75.1403. ll Commission Administrative Law Judge 

ll 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 30 

U.S.C. § 874(b), and states: 

Other safeguards adequate, in the judgment of an 

authorized representative of the Secretary [of 

Labor], to minimize hazards with respect to 

transportation of men and materials shall be 

provided. 

The procedures for issuing safeguards and citations for failure to 

maintain required safeguards are described in 30 C.F.R. § 75.1403-l(b): 

The authorized representative of the Secretary 

shall in writing advise the operator of a specific 

963 
Roy J. Maur_er concluded that because the safeguard in question contained 

a requirement that was "of a general nature applicable to at least a 

significant number of other [underground] coal mines," rather than a 

requirement specifically applicable to Sacco's mine, it was invalid. 

9 FMSHRC 273, 278 (February 1987) (ALJ). Accordingly, he vacated a 

withdrawal order issued to Socco that alleged a violation of the 

safeguard. On review, the parties dispute whether the general 

applicability of a safeguard requirement is a proper basis for 

invalidating a notice to provide safeguards. We do not reach this 

question of law because, in any event, substantial evidence of record 

does not support the judge's conclusion that the challenged safeguard 

was a generally applicable requirement rather than a mine-specific 

requirement. On this basis, we reverse. 

On November 3, 1982, during an inspection of Socco's Martinka 

No. 1 underground coal mine, an inspector of the Department of Labor's 

Federal Mine Safety and Health Administration ("MSHA") issued to Socco a 

notice to provide safeguard which stated: 

24 inches of clearance is not being provided on 

both sides of the feeder for the north main (122) 

section coal conveyor belt, in that only 15 inches 

is provided along one side. 

24 inches of clearance shall be provided on both 

sides of the coal feeders in this mine. 

Gov. Ex. 2. '];/ 

On February 19, 1986, another MSHA inspector issued to Socco a 

withdrawal order pursuant to section 104(d)(2) of the Mine Act, 30 

U.S.C. § 814(d)(2), alleging a violation of the above safeguard and, 

hence, of section 75.1403. The withdrawal order stated: 

safeguard which is required pursuant to § 75.1403 

and shall fix a time in which the operator shall 

provide and thereafter maintain such safeguard. If 

the safeguard is not provided within the time fixed 

and if it is not maintained thereafter, a [citation] 

shall be issued to the operator pursuant to section 

10[5] of the Act. 

30 C.F.R. § 75.1403-l(a) states that safeguards will be required 

"on a mine-by-mine basis." 30 C.F.R. §§ 75.1403-2 through 75.1403-11 

set forth specific "criteria" by which authorized representatives of the 

Secretary are to be guided in requiring safeguards. Section 

75.1403-l(a) further states that "[o]ther safeguards may be required." 

See generally Southern Ohio Coal Co., 7 FMSHRC 509 (April 1985). 

'1:_/ A "feeder" is part of a coal-carrying conveyor system and is 

described as a "structure for delivering coal .•• at a controllable 

rate." Bureau of Mines, U.S. Department of the Interior, Dictionary of 

Mining, Mineral, and Related Terms 417 (1968). 

964 
In the 2 east C section, there was less than 24 

inch clearance between the left coal line rib and 

the Stamler belt coal feeder for approximately 6 to 

7 feet, only 12 inch clearance was between the 

Stamler and ribline and the start and stop switch 

was installed for the belt conveyor in this area. 

Coal & slate was being dump[ed] on the right side of 

the Stamler instead of the front and the fire 

warning box was installed outby the Stamler Feeder. 

Mechanics, electricians and belt cleaners use this 

area. • •• Safeguard No. 2034480 - issued 11-03-82. 

Gov. Ex. 1. The withdrawal order included findings that the violation 

of the safeguard notice and section 75.1403 was the result of Sacco's 

unwarrantable failure to comply therewith (Tr. 21), and that the 

violation significantly and substantially contributed to the cause and 

effect of a mine safety hazard. Gov. Ex. 1; 30 U.S.C. § 814(d). Socco 

contested the order of withdrawal and the Secretary's proposed civil 

penalty for the alleged violation of section 75.1403, asserting that the 

alleged violation did not occur. Socco also challenged the inspector's 

significant and substantial and unwarrantable failure findings. 

Before the administrative law judge, the Secretary's witnesses 

testified without contradiction that only a 12-inch clearance existed 

between the coal feeder and the left ribline at the time the inspector 

cited Socco for violating the requirement of the notice to provide 

safeguard that a 24-inch clearance be maintained. The testimony at the 

hearing focused upon the reasons for the lack of clearance and the 

Secretary's allegations that the violation of the safeguard 

significantly and substantially contributed to a mine safety hazard and 

resulted from Sacco's unwarrantable failure to comply with the 

safeguard's requirement. No evidence was introduced addressing the 

circumstances under which the underlying 1982 notice to provide 

safeguard had been issued or the specific reasons why the requirement of 

the safeguard had been imposed at the Martinka No. 1 mine. _In its posthearing brief, however, Sacco argued, among other things, that a notice 

to provide safeguards cannot properly address hazards that are of a more 

universal nature generally present in the underground coal mining 

industry rather than being mine specific. 

The judge agreed. Pointing analogously to the principles 

enunciated in Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 407 (D.C. Cir. 

1976), the judge stated that the Secretary's imposition of generally 

applicable safeguard requirements could amount to improper circumvention 

of the statutory rulemaking process. 9 FMSHRC at 277-78. The judge 

further stated: 

Reading the record as a whole •.• a clear inference 

may be drawn that the requirements of the 

safeguard •.. [for 24 inches of clearance on both 

sides of the mine's coal feeders] are applicable to 

at least a significant number of coal mines which 

employ coal feeders and shuttle cars to transport 

coal. Importantly, there is !!£ reason given in 

965 
th[e) record why the 24 inch clearance requirement 

should be imposed only in. the particular mine herein 

involved and not in mines using coal feeders 

generally. 

9 FMSHRC at 277 (emphasis in original). The judge concluded that the 

requirement of the safeguard properly should have been promulgated 

pursuant to the rulemaking procedures of section 101 of the Mine Act, 30 

U.S.C. § 811, rather than imposed on Socco pursuant to a safeguard 

notice. Id. Therefore, he held that the notice to provide safeguard 

was invalid and he vacated the contested withdrawal order based thereon. 

We granted the Secretary's petition for discretionary review. 

On review the Secretary asserts that the judge erred in 

invalidating the safeguard on the basis of his inference that the 

safeguard's requirement of 24 inches of clearance between the rib and 

the feeder is of a general nature applicable to a significant number of 

underground coal mines utilizing coal feeders. The Secretary also 

argues that the Mine Act does not mandate that a safeguard be minespecif ic. According to the Secretary, it is enough if the 

transportation hazard addressed by the safeguard is not addressed by a 

generally applicable mandatory standard. Sec. Reply Br. at 5-6. 

Alternatively, the Secretary asserts that substantial evidence does not 

support the judge's conclusion that the requirement of the safeguard at 

issue was applicable to at least a significant number of mines using 

coal feeders. 

Sacco responds that the judge correctly held the safeguard to be 

invalid. Socco asserts that the intent of the statutory safeguard 

provision is to allow the Secretary to require an operator to address 

certain transportation hazards caused by peculiar conditions at a mine, 

not to address conditions common to a significant number of mines. 

Socco argues that the judge properly recognized that the requirement 

imposed by the safeguard at issue is generally applicable to a 

significant number of underground coal mines and therefore that its 

clearance requirement should have been promulgated through the Mine 

Act's rulemaking procedures. 

The Commission has previously had occasion to examine the Act's 

safeguard provision. The Commission has noted that the broad language 

of the provision "manifests a legislative purpose to guard against all 

hazards attendant upon haulage and transportation in coal mining." Jim 

Walter Resources, Inc., 7 FMSHRC 493, 496 (April 1985). The Commission 

has observed that while other mandatory safety and health standards are 

adopted through the notice and comment rulemaking procedures set forth 

in section 101 of the Act, section 314(b) extends to the Secretary an 

unusually broad grant of regulatory power -- authority to create what 

are, in effect, mandatory safety standards on a mine-by-mine basis 

without regard to the normal statutory rulemaking procedures. Southern 

Ohio Coal Co., supra, 7 FMSHRC at 512. The Commission also has 

recognized that the exercise of this unique authority must be bounded by 

a rule of interpretation more restrained than that accorded promulgated 

standards. Therefore, the Commission has held that a narrow 

construction of the terms of a safeguard and its intended reach is 

966 
required and that a safeguard notice must identify with specificity the 

nature of the hazard at which it is directed and the remedial conduct 

required by the operator to remedy such hazard. Id. 

These underlying interpretive principles strike an appropriate 

balance between the Secretary's authority to require safeguards and the 

operator's right to notice of the conduct required of him. They do not, 

however, resolve the important issue raised here for the first time --

whether a notice to provide safeguard can properly be issued to address 

a transportation hazard of a general rather than mine-specific nature. 

The United States Court of Appeals tor the District of Columbia Circuit, 

in the context of the Mine Act's provision for mine-specific ventilation 

plans, has recognized that proof that ventilation requirements are 

generally applicable, rather than mine-specific, may provide the basis 

for a defense with respect to alleged violations of mandatory 

ventilation plans. In Zeigler Coal Co., supra, the court considered the 

relationship of a mine's ventilation plan required under section 303(0) 

of the Act, 30 U.S.C. § 863(0), to mandatory health and safety standards 

promulgated by the Secretary. The court explained that the provisions 

of such a plan cannot "be used to impose general requirements of a 

variety well-suited to all or nearly all coal mines" but that as long as 

the provisions "are limited to conditions and requirements made 

necessary by peculiar circumstances of individual mines, they will not 

infringe on subject matter which could have been readily dealt with in 

mandatory standards of universal application." 536 F.2d at 407; See 

also Carbon County Coal Co., 6 FMSHRC 1123, 1127 (May 1984) (Carb~ 

County I); Carbon County Coal Co., 7 FMSHRC 1367, 1370-72 (September 

1985) (Carbon County II). 

Whether, as the judge believed, a similar type of challenge may be 

made to a safeguard notice is a question of significant import under the 

Mine Act. Given the manner in which this important question was raised 

and addressed in the present case, and the nature of the evidence in 

this record, it is a question that we do not resolve at this time. 

In the present case Sacco did not assert its right to challenge 

the validity of the safeguard notice based on the safeguard's asserted 

general applicability until the submission of its post-hearing brief to 

the judge. Thus, at the hearing Sacco did not offer any evidence in 

support of this contention. Thus, even if we were to hold that an 

operator may challenge a notice of safeguard on the ground that it seeks 

to impose a requirement of a general nature applicable to all or a 

significant number of mines, the record at hand contains no evidence 

that this is the case here. Rather, the testimony of the witnesses 

focused on the cause of the February 19, 1986, violation of the notice 

to provide safeguard, whether the violation was significant and 

substantial, and whether the violation resulted from Socco 1 s 

unwarrantable failure to comply with the safeguard. 

The record contains no evidence concerning the quite distinct 

issue of the general or mine-specific nature of the safeguard 

requirement. No testimony was offered and no documents were introduced 

regarding the circwnstances under which the underlying safeguard was 

issued, the existence of or need for similar safeguards at other mines, 

967 
or any general MSHA policy regarding uniform clearance requirements 

around coal feeders. We note particularly that Socco failed to 

introduce any evidence as to whether the same or a similar safeguard had 

been issued at any of its other mines. Compare Carbon County II, 

7 FMSHRC at 1372-75. There is no factual basis in this record 

supporting the judge's inference that the clearance requirement of the 

challenged safeguard is applicable to at least a significant number of 

other mines employing coal feeders and shuttle cars to transport coal. 

In failing to introduce any evidence supporting its contention, Socco 

failed to support its challenge to the safeguard. 

Therefore, substantial evidence of record does not support the 

judge's conclusion that the notice to provide safeguard was issued 

improperly. The judge's vacation of the contested order of withdrawal 

is reversed. This matter is remanded to the judge for consideration of 

Sacco's contest of the Secretary's findings that the violation was 

significant and substantial and resulted from the operator's 

unwarrantable failure to comply with the notice of safeguard and for the 

assessment of an appropriate civil penalty. 

K,~? 

~~u4-,_ Richard V. Backley, Commissioner 

. /.; ( /~ t/ a~,Lt- ·Joyce K. Doyle, Commissirn<er 

L. Clair Nelson, Commissioner 

968 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

JUN 301988 

WESTERN FUELS-UTAH, INC., 

Cont.estant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

WESTERN FUELS-UTAH, INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 87-166-R 

Order No. 2835325; 3/21/87 

Docket No. WEST 87-167-R 

Citation No. 2835326; 3/22/87 

Docket No. WEST 87-168-R 

Citation No. 2835327; 3/22/87 

: Docket No. WEST 87-169-R 

Citation No. 2835328; 3/22/87 

: Mine I.D. 05-03505 

. . 

. . 

. . 

. . 

. . 

: 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-251 

A.C. No. 05-03505-03540 

Deserado Mine 

DECISION 

Appearances: Karl F. Anuta, Esq., Boulder, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Respondent/Petitioner. 

Before: Judge Lasher 

The penalty case was consolidated with the four contest 

proceedings at hearing---which as reflected in the caption 

involve a Section 103Ck) withdrawal order and 3 citations. The 5 

dockets arise under and the Commission has jurisdiction pursuant 

to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

Section 801 et~ (1982) (herein the Act). 

The four enforcement papers Corder and 3 citations) were 

issued by MSHA Inspector Dale L. Hollopeter subsequent to the 

occurrence of a serious accident which occurred at approximately 

9:25 a.m., on March 20, 1987, near the Deserado mine, an underground coal mine operated by Contestant/Respondent (herein 

Western Fuels) in Rio Blanco County, Colorado. 

969 
One of the citations (No. 2835327) charged that the alleged 

violation described therein was "significant and substantial". 

The other 2 Citations (numbered 2835326 and 2835328) did not 

contain "S&S" designations. 

A. General Findings 

The Deserado Mine is an underground coal mine located near 

Rangely, Rio Blanco county, Colorado. Coal is taken from the 

mine to a preparation plant from which it is transported for 

several miles to a train loadout area by an overhead conveyor CT. 

27, 55, 153) . 

The parties, in addition to stipulations as to jurisdiction, 

admissibility of underlying documentation and mandatory penalty 

assessment criteria, also submitted the following written 

stipulations: 

a. On Friday, March 20, 1987, at about 9:25 a.m., a nonfatal powered haulage accident occurred on the County Road 

78 at the Beltline Conveyor Overpass CCNV-2). Dale J. 

Ackerman, truck/light equipment operator, and Michael G. 

Smith, heavy equipment operator, were seriously ·injured 

when the Euclid, RD-50, end dump haulage truck, with the 

bed raised, struck the overpass, causing the truck to overturn onto its left cab side. The accident occurred because 

the haul truck operator failed to lower the truck bed after 

dumping refuse material at Pit 2/3 ~/ 

b. The accident was reported by the (mine) operator to the 

MSHA office in Glenwood Springs at approximately 12:00 

noon on March 20, 1987. 

c. The No. 2 Beltline conveyor overpass is above County 

Road No. 78 and is used as a haul road by Western Fuels 

with express permission of Rio Blanco County and Bureau of 

Land Management. 

d. The No. 2 Beltline Conveyor overpass was not at the time 

of the accident marked and did not contain warning signals. 

1/ The evidence of record also overwhelmingly established that 

the driver of the truck, Ackerman, for whatever reason, failed to 

lower the truck bed and then drove the truck approximately 2 

miles from the pit to where the bed struck the overpass as the 

truck attempted to proceed underneath. 

970 
Inspector Hollopeter, who is stationed in Denver, was 

advised of the accident by his supervisor sometime after 

"noontime" on Friday, March 20, 1987. After packing, he drove 

from Denver to Craig, Colorado that afternoon. That night he 

prepared his equipment, etc. for the ensuing investigation, and 

the following morning traveled from Craig to the mine where he 

met with company and union officials at approximately 8 a.m. (T. 

28-32). He was advised by Mine Superintendent John Trygstad that 

the haulage truck-with the bed thereof in the raised position--

had struck the overland conveyor structure. At the conclusion of 

the meeting, Inspector Hollopeter issued the Section 103(k) 

Order-- based on what he was told at the meeting-- to insure the 

safety of the miners (T. 33-38, 55). Following the meeting, 

Inspector Hollopeter, accompanied by Western Fuels' Safety 

Director Jerry Kowlok, went to the accident scene, and then to 

Pit 2-3, i.e. the refuse pile (T. 40, 59). 

It was Inspector Hollopeter's understanding, and I so find 

from the entire record, that Dale Ackerman, the driver of the 

50-ton capacity truck on the trip in question, his second of the 

day (T. 132), started out from the preparation plant on March 20 

with a load of refuse, proceeded down the 2-lane haul road 

(County Road 78) to the refuse pile (pit) where he dumped the 

refuse material, picked up passenger Smith, and was traveling 

back down the gravel-dirt haul road to the preparation plant when 

the accident occurred as above noted about 9:25 a.m. at a point 

about 1.75 miles from the pit (T. 41, 44-48, 132, 256-257). The 

speed limit on the haul road from the refuse pit (dump) is 30 

m.p.h. (T. 256). 

The accident occurred when the right side of the front of 

the "headache rack" (a protective part of the bed extending out 

over the cab to keep falling objects from striking the cab and 

the truck operator) struck the overpass structure CT. 60-61, 71, 

362; Exs. M-11, 12 and 13). 

The truck ended up on its left side following the accident; 

Michael G. Smith, an "authorized" passenger (T. 243, 260, 294, 

295) was removed from the truck at 10:40 a.m. and Ackerman, whose 

lower left leg had to be amputated at the scene, was removed from 

the truck at 12 noon CT. 52-53, 116; Ex. M-14). 

After his arrival at the accident scene (and the refuse 

pit>, Inspector Hollopeter took various measurements and 

photographs of the truck, overpass structure, and accident scene 

(Ex. M-6 through M-13) (T. 41, 50-58). 

The overpass structure (sometimes referred to as an overhead 

conveyor) extends over the haul road in an arch, the lowest point 

of which is 20.16 feet and highest point being 27 feet; there was 

a clearance of approximately 26 feet at the point where the truck 

struck it (T. 65, 68, 138, 141). The conveyor is in the center 

971 
of the structure itself with walkways on either side. One effect 

of the withdrawal order was to prohibit persons from walking on 

these walkways CT. 78). When the bed of the truck is raised it 

extends upward at a 60 degree angle and is about 28 feet 4 inches 

in height. The truck thus failed to clear the overpass by about 

18-24 inches CT. 69 ). With the bed raised, there was thus no 

place the truck could have cleared the overpass CT. 70). In its 

travel position, i.e., with the bed lowered, the height of the 

truck is 14 feet 5 inches CT. 72). 

B. Docket No. WEST 87-166-R 

Validity of Withdrawal Order No. 2835325 

The Order was issued pursuant to Section 103Ck) of the Act 

which provides: 

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

mine, an authorized representative of the Secretary, when 

present, may issue such orders as he deems appropriate to 

insure the safety of any person in the coal or other mine, 

and the operator of such mine shall obtain the approval of 

such representative, in consultation with appropriate State 

representatives, when feasible, of any plan to recover any 

person in such mine or to recover the coal or other mine or 

return affected areas of such mine to normal." 

Subsequent to its issuance at 8:50 a.m. on March 21, 1987, 

the Order was modified four times by Inspector Hollopeter. 

Western Fuels contends that the Order as modified, was 

improperly issued since its purpose was not to insure the safety 

of persons in the mine, but rather was intended to preserve 

evidence CT. 202). The Order itself charges no violation and 

MSHA seeks no penalty in connection therewith CT. 9). 

The "Condition or Practice" involved in the Withdrawal Order 

was set forth by Inspector Hollopeter in Section 8 thereof as 

follows: 

The mine has experienced a nonfatal powered haulage 

accident on the surface haul road (County Rd. 78) at No. 2 

Beltline Conveyor overpass. This order is issued to assure 

the safety of persons until an examination or investigation 

is made to determine the area is safe. An investigation 

party of company officials, state and county officials, 

safety committeemen are permitted to enter the area. 

Section 15 of the Withdrawal Order, wherein the "Area or 

Equipment" to be withdrawn is to be described, was filled in by 

Inspector Hollopeter as follows: 

972 
"The No •. 2 Beltline Conveyor overpass structure 150 feet each 

side of the haul road and the haul road 150 feet easterly 

and westerly of the structure, except the southern portion 

of the haul road to permit traffic to pass." 

Inspector Hollopeter issued the Order to ensure the safety 

of persons until an investigation could be conducted CT. 34-36, 

142). 

At 1:40 p.m. on March 21, 1987, the Inspector issued the 

following modification: 

103(k) Order is modified to allow the operator to move the 

Euclid R-50 (Company No. 4) from the accident area to the 

shop area. Also, the closure of a section of this haul 

road is now removed from this order. 

At 7:35 p.m. on March 21, 1987, this second modification~/ 

was issued: 

The 103(k) Order is modified to show the area of the No. 2 

Beltline Conveyor (overland conveyor) closure from the 150 

feet on each of the haul road changed to just the No. 2 

Beltline Conveyor Overpass structure and belt at the main 

supports north of the haul road to the main supports south 

of the haul road. 

At 11:39 a.m. on March 22, 1987, this third and final 

modification was issued by Inspector Hollopeter: 

The 103(k) Order is modified to allow repairs to the No. 2 

beltline conveyor overpass and operation of the conveyor 

belt this being based on the Chief Engineer opinion which 

was given and to allow repairs on the Euclid R-50 (Company 

No. 4) haulage truck, with stipulation that the District 

Office, MSHA, CMSH&H, Denver, Co., be notified of any defective item found and that we get a report of the damage 

and repairs done to the truck. 

If an independent shop is to do the repairs, we are to be 

notified so that we might be present during examination 

or testing. 

One effect of the Withdrawal Order, as previously noted was 

to prohibit persons from walking on the walkways alongside the 

conveyor. The operation of the conveyor was also "closed" by the 

2/ Upon the issuance of this second modification, the coverage of the Order would have remained on the "curved arched portion of 

the overpass structure", the truck, and the conveyor belt (T. 

153). 

973 
order CT. 85, 86). The order did not prevent traffic on the 

haulage road ·ccounty Road 78) from travelingunder the overpass 

structure, and thus would not have the effect of preventing the 

same kind of accident from happening had another Euclid truck 

proceeded under the overpass with its bed raised CT. 80-85). 

This is a moot point, however, since there was only one such 

truck operating at the time-- the one involved in the subject 

accident CT. 87). The Inspector testified he also put an order 

on the truck to "prevent people from being in or around" it {T. 

87-88) although this is not specifically reflected in Section 15 

(Area or Equipment> of the order itself. 

At the time of his initial investigation, Inspector 

Hollopeter did not know the truck was being driven-- why/or what 

caused the truck to be driven-- with the bed in a raised position 

CT. 73, 77). He considered the possibility that there was a malfunction which would have caused the bed to be in a raised 

position CT. 77, 151). 

Inspector Hollopeter issued the first modification of the 

Withdrawal Order because the County wanted the truck moved and so 

that the truck could be moved off the road to the shop area 

allowing traffic to move in both directions CT. 151). At the 

time of its issuance he had not checked out and cleared the 

overpass structure for safety CT. 74-76, 142, 189). He described 

his concerns relating to the overpass as follows: 

"Just underneath, looking at the conveyor, I saw where --

the side which the truck had contacted, initially, and --

at the initial contact point, I saw, on the lattice work, 

where there was (sic) braces broken out, bent out. And, 

also, the I-beams were bent, twisted underneath it." 

CT. 77) 

The Inspector was also concerned about the cracking of paint 

around the bolts of the overpass which may have been caused by 

the accident CT. 147-149 ). ~/ 

Following issuance of the first modification which permitted 

removal of the damaged truck from the accident area, the Inspector again .examined the conveyor structure. He testified as 

to what he observed: 

"On the easterly side of the structure, which was the side, 

which the haulage truck had initially contacted, I saw 

3/ Although not well articulated by the witness, I infer that 

this concern was directed toward the possible traumatic effect the 

impact of the collision had on the structure. 

974 
the lattice work bent, braces broken out completely on one 

end, and bent out. The metal, which was bent. 

For a distance along the bottom of the conveyor, I observed 

some of the I-beams going across underneath this structure, 

bent. Also, I notice on the opposite side of the impact 

area, paint which appeared to be cracked, which was apparently caused by the impact. 

Q. But, it was on the opposite side of the conveyor? 

A. Yes." CT. 89) 

Surface Area Foreman Jack L. Monfrada described what he saw 

when he arrived as follows: 

"There was some beams and lattice work that was -- one 

lattice work was broke and pokin' up on the air, and you 

could see where these beams had been bent. They were 

horizontal beams, across the bottom of the structure. 

(T. 342) 

After this visual examination and conducting interviews CT. 

89-91) Inspector Hollopeter issued the ~econd modification at 7:35 

p.m. on March 21, 1987. He explained what led to issuance of the 

second modification: 

"Mainly, my understanding was that the company were (sic) 

havin' security people stay at that area to prevent people 

from goin' in the accident area -- or, under the 103K Order 

area. And, they'd have to keep people -- they said they 

was going to keep people there all the time. And, at that 

particular time, I didn't feet the Order should be lifted, 

because I had concern on the structure, but I felt the Order 

cold be modified to bring the distances in from 150 feet 

just to -- just so the Order would pertain to the overland 

conveyor structure, that went across the road. And, that 

-- that way you wouldn't need to have a -- anyone secure 

the area, or -- as far as havin' a person there all the 

time." 

CT. 90-91) 

xxx xxx xxx xxx 

I was concerned about the amount of metal, which was damaged 

-- your braces, your I-beams, which were bent; the cracking 

of the paint, walkway, everything. 

I was concerned about if the conveyor was operated, how 

much -- this metal was fatigued -- there could have been 

maybe an accident, shortly thereafter, if it was turned on. 

Just -- I had concern. 

975 
Q. And, concern about the safety of anyone who might walk 

up on that conveyor belt? 

A. Yes. 

(T. 92) 

The third modification was issued at 11:34 a.m. on Sunday, 

March 22, 1987, to permit Western Fuels to repair the conveyor 

belt, it being the opinion of Western Fuels Chief Engineer Mike 

Weigand that upon completion of such the conveyor belt could be 

safely operated (T. 92-94) Inspector Hollopeter remained 

concerned about the safety of the structure and wanted MSHA 

"technical support people" to examine it. The third modification 

thus continued MSHA control over this aspect of the matter. By 

letter he requested them to examine it and subsequently received 

a written report back indicating the structure was safe which led 

to issuance of a fourth modification of the Order in May, 1987 

(T. 93-96, 98) which removed the structure from the effect of the 

Order CT. 97). At this point only the truck remained under the 

control of the Order CT. 98). Following further investigation of 

the truck and the Inspector's receipt of information that the 

truck had no indications of defective parts, malfunction, etc., 

Inspector Hollopeter terminated the subject Section 103(k) 

withdrawal order (T. 98-100). 

Michael J. Weigand, Western Fuels' Chief Engineer at the 

Deserado Mine, testified that when he inspected the overpass 

structure on the day of the accident he observed that one of the 

diagonal braces had broken loose and there was "some damage" to 

the ends of some I-beams which run "roughly parallel to the road" 

underneath the structure (T. 363). He felt that the photographs 

in the record as exhibits C-5, 10, 16 and 17 accurately depicted 

the damage to the structure imediately after the accident (T. 

362-368). Mr. Weigand indicated that his inspection disclosed a 

5-inch deflection of the structure the existence of which "was 

possible" before the accident (T. 371). He conceded that "there 

could be some effects from that accident" that could "weaken" the 

structure over the "longterm" (T. 373-374> and the relatively 

extensive repairs made to the structure after the accident were 

done because such were reimbursed by insurance, it took a shorter 

time to perform the repairs in that manner, and it was decided to 

do it "right" so that the structure would last its projected 

30-year term (T. 374-376). 

During the MSHA investigation in the 2-day period following 

the accident, Mr. Weigand participated and gave his opinion to 

Inspector Hollopeter that the structure "was safe" (T. 377-378 ). 

It was also his opinion that the structure was not a "dangerous 

overpass" either before or after the accident (T. 386). 

On cross-examination, this exchange, of some significance, 

between Mr. Weigand and MSHA's counsel occurred: 

976 
Q. All right. And, you did tell Mr. Hollopeter, as I understand, that it was your opinion that there were some braces 

that should be replaced on this overpass? 

A. I felt that if immediate work was done, that that's the 

part that should have been done, yes. CT. 392) 

Mr. Weigand also conceded the possibility that the cracked 

paint on the structure occurred as a result of the truck's impact 

with it CT. 396). 

Maintenance Superintendent Anthony Lauriski described the 

damage to the overpass structure as follows: 

A. There was two trusses tore loose, and the hand rail was 

sort of bent in one spot, and there was some damage to the 

supports that go across and hold the walkway up (T. 410). 

Western Fuels' Safety Instructor/Inspector David G. Casey, 

who in the beginning took charge of the rescue operation, 

described the damage to the structure this way: 

"We had a couple of cross-beams that were tore loose- they 

were vertical beams, and a few I-beams that had been bent." 

CT. 450) 

Mr. Casey expressed the opinion that the overpass was not 

dangerous, perilous or risky either before or after the accident 

CT. 452, 461) for persons or vehicles to travel under or near CT. 

461-462). 

As to that part of the Order pertaining to the truck, Mr. 

Lauriski testified that he first "knew" there was no malfunction 

which would have caused the bed to raise (and thus cause the 

accident) when the valve was disassembled after the truck was 

taken to the repair shop CT. 419). This is supportive of the 

Inspector's judgment. 

Although Western Fuels, in its Brief, repeats several times 

the charge that Inspector Hollopeter's issuance of the Section 

103(K) Order was to "preserve evidence"- an allegedly unauthorized purpose, I find no direct or substantive support in 

the record, arguments or briefs for making such a finding. 

Inspector Hollopeter testified that he issued the subject order 

so that could "go in and look at the area to insure the safety of 

the miners" CT. 34). Scrutiny of the actions of the Inspector, 

from the time of his notification of the accident through his 

ensuing investigation and issuance of the Order and its three 

primary modifications, supports the contention of the Petitioner 

that "Throughout the course of the investigation, as Mr. 

Hollopeter learned more of the accident and investigated the 

971 
site, he was .able to modify the order to keep in line with what 

he knew, while still ascertaining that no further injuries would 

occur." The nature of the possible hazards which the impact 

might have sustained to the structure (See Ex. C-2) and the 

possible problems with the truck which could have caused the bed 

to raise without operator negligence, all adequately evidenced in 

this record, would have made it irresponsible for the Inspector 

to have Cl> proceeded without issuing the Order, or (2) to have 

terminated the Order prematurely. I find no support in the 

record for the proposition that the Order was issued either 

routinely or for the sole-or primary-purpose of ireserving 

evidence pending a post-accident investigation. _/ 

western Fuels' contention (Brief, p. 22) that "The inspector 

used a club when a simple 'please' would have been sufficient," 

ignores the responsibility placed on the Ins~ector by the Mine 

Act to insure safety in such circumstances. _/ 

There being no admissions or substantive or probative 

evidence upon which to conclude otherwise, it is found that the 

exercise of discretion by the Inspector in issuing the Order and 

its modifications was appropriate in the circumstances and that 

such Order and its modifications should be affirmed. 

C. Docket No. WEST 87-167-R 

Citation No. 2835326 

The "Condition or Practice" deemed a violation by Inspector 

Hollopeter was described in Section 8 of the Citation as follows: 

"The operator did not immediately contact the MSHA District 

or Subdistrict off ice having jurisdiction over its mine 

of an accident which had injuries to two miners which had 

reasonable potential to cause death. A non fatal powered 

haulage accident occurred on 3/20/87 about 9:25 a.m. in 

!/ The Inspector, under Section 103(j) of the Act, certainly 

does have an independent obligation and responsibility to take 

appropriate measures "to prevent the destruction of any evidence 

which would assist in investigating the cause or causes" of an 

accident. 

21 The responsibility for determining structural damage to the 

overpass and conveyor, any truck malfunction, and any patent or 

latent safety hazards stemming therefrom, is recognized as a 

considerable one. Any question in the mind of the sole person 

bearing this burden in mine safety enforcement would necessarily 

be resolved on the side of safety. 

978 
which an Euclid R-50 (Co No. 4) End dump haulage truck 

contacted the No. 2 Beltline Conveyor overpass and the two 

miners in the cab were seriously injured. MSHA Glenwood 

Springs, CO. field off ice was notified of the accident . 

12 p.m. on 3/20/87." 

The standard alleged to have been violated was, 30 C.F.R. 

50.10 (entitled "Immediate Notification") which is placed in the 

codification system of the regulations under Subchapter M 

(entitled "Accidents, Injuries, Illnesses, Employment, and 

Production in Mines"), under Part 50 thereof (entitled "Notification, Investigation, Reports and Records of Accidents, 

Injuries, Illnesses, Employment and Coal Production in Mines") 

and lastly under Subpait B thereunder (entitled "Notification, 

Investigation, Preservation of Evidence"). Section 50.10 

provides: 

"If an accident occurs, an operator shall immediately 

contact the MSHA District or Subdistrict Off ice having 

jurisdiction over its mine. If an operator cannot 

contact the appropriate MSHA District or Subdistrict 

Off ice it shall immediately contact the MSHA Headquarters 

Office in Washington, D.C., by telephone, toll free at 

(202) 783-5582." 

The issue posed by Western Fuels in connection with this 

Citation is: 

"Does an operator violate the immediate reporting obligation of the regulations where he delays advising MSHA 

for 2 hours while devoting full attention to the rescue 

of injured miners, and where the delay does not exacerbate 

the rescue efforts or hinder the subsequent accident investigation?" ~/ 

It has been stipulated, and the record also reflects, that 

the accident occurred at 9:25 a.m. and that Western Fuels 

reported it to MSHA's Glenwood Springs Office at 12 noon (T. 107, 

109, 448). This coincides with the 2 1/2 hour period of the 

6/ It is initially noted that the questions whether the delay 

Cl) exacerbated rescue efforts, or (2) hindered MSHA's investigation, would relate more directly to the penalty assessment 

factor of seriousness, rather than to the occurrence of an infraction of the standard cited. Obviously, at the time of delay 

in notification, the ultimate effects thereof may not be 

recognizable and the elements of proof inherent in the 

phraseology of the regulation contain no such exception for 

situations where there is no prejudicial effect. A roof-control 

requirement, for example, is not self-abregating where the violation of such does not cause an injury - causing fall. 

979 
rescue operation (T. 111). Evidence of record (Ex M-5) indicates 

that passeng~r Mike Smith called in the accident on his two-way 

radio Chand-held pack-set) at approximately 9:23 a.m. 

The first individual on the scene was a Coca-Cola delivery 

man. When he first arrived at the scene he thought no one was in 

the truck but upon investigation he saw and heard Mike Smith 

calling on the radio for help. When he heard no response to the 

first call for help, he got on Mike's radio and repeated the call 

for help. Immediately upon receiving the call that two miners 

were trapped in an overturned haul truck, the Western Fuels 

ambulance was dispatched and the Rangely District Hospital was 

notified at approximately 9:27 a.m. that their ambulance was also 

needed. The Rangely Rural Fire Protection District was also 

notified at this time. A Western Fuels Security Guard was 

dispatched immediately to the scene and arrived at 9:26 a.m. This 

security guard and the preparation plant foreman arrived in a 

Ford pickup (security vehicle). 

Western Fuels' Safety Director at the time, Jerry Kowlok CT. 

406), who did not testify, reported to Inspector Hollopeter that 

he contacted the Glenwood Springs off ice at about 12 noon and 

that he was "the only person designated to contact MSHA on an 

accident" CT. 109, 110, 339, 421, 447, 466-467)~ Mr. Kowlok did 

not make this report until after he had left the accident scene 

(T. 448, 459, 460). Mr. Kowlok had a radio at the scene of the 

accident, was in contact with his security base which had a 

telephone, and thus had the means by which to immediately notify 

MSHA of the accident (T. 335-336, 406, 429-430, 434, 459-460, 

468-469). 

Some of the general purposes of immediate notification are 

Cl) determination of the type of accident, (2) getting the 

nearest available MSHA inspectors to the accident site, (3) 

allowing MSHA the opportunity to supply expertise to the 

situation as well as special equipment and special rescue teams, 

and (4) prevention of future accidents CT. 109-110). According 

to the Inspector, however, no such rescue teams, etc. were 

actually available for use in rescuing the two miners trapped in 

the truck in the instant situation CT. 176-180). On the other 

hand, MSHA was deprived of any opportunity to immediately 

investigate or be present at the accident site to assist in 

rescue or attempt to prevent further injuries. There was no 

allegation or evidence that notifying MSHA would have been a 

futile act i.e., that based on past inept performances by MSHA in 

accident situations, that Western Fuels was justified in 

believing a 2 1/2 hour delay would make no difference. 

Further, there was no evidence presented that it was 

impossible- or even difficult- for Western Fuels to have notified 

MSHA imediately CT. 335-340, 341, 361, 406-408, 420, 428-432, 

460, 466-468). There clearly was available the means of 

980 
communicating with MSHA and various management and other 

personnel available to do it. It is thus concluded that the 

violation as charged in the Citation occurred and that Western 

Fuels was negligent in the commission of such. The regulation 

infracted constitutes a highly important aspect of mine safety 

process and enforcement in terms of both accident investigation 

and assistance and is eroded only at considerable cost in the 

perspective of future accidents and tragedies. The importance of 

this regulation is related to the role Congress has mandated for 

inspectors in the Act itself (See Sections 103(j) and (k) thereof). Although the probability that the delay did not affect 

rescue or investigation processes, the humanitarian interests of 

Western Fuels' personnel, and the emotionally traumatic aspects 

of the incident itself are to be inferred from the record overall 

and stand in some mitigation of the considerable seriousness and 

culpability to be attributed to the violation, 7; the $20 penalty 

sought by the Secretary, being but a token sum,-is not considered 

appropriate. A penalty of $150.00 is assessed. 

D. Docket No. WEST 87-168-R 

Citation No. 2835327 

The "Condition or Practice" charged to be a violation by 

Inspector Hollopeter was described in Section 8 of the Citation 

as follows: 

"The equipment, Euclid R-50 (Co. No. 4) End dump haulage 

truck, being driven from the Pit 2-3 Refuse dump to the 

preparation plant was not secured in the travel position. 

A nonfatal powered haulage accident occurred, severely injuring the operator and passenger of the truck, when the 

raised truck bed struck the No. 2 Beltline Conveyor Overpass. Through interviews it was determined that it is the 

Company policy to have the bed of the truck lowered when 

traveling." 

The standard allegedly violated was subsection (s) of 30 

C.F.R. § 77.1607 pertaining to "Loading and Haulage Equipment1 

Operation", which provides: 

7/ The parties, as part of their written stipulation (Court Ex. 

1) concurred that Western Fuels is a large bituminous coal mine 

operator and that it proceeded in good faith in attempting to 

achieve rapid compliance after notification of all the alleged 

violations. As part of the same stipulation, the parties 

submitted into evidence a computerized history of prior violations (Ex. M-1) indicating that Western Fuels had 129 previous 

violations in the 2-year period preceding the issuance of the 

subject Citations. 

981 
"When moving between work areas, the equipment shall be 

secured in the travel position." ~/ 

Inspector Hollopeter designated this to be a "significant 

and substantial" violation on the face of the Citation, giving 

rise to what appears to be the contention raised by Western 

Fuels: "Should an operator be charged with a significant and substantial violation where a driver, contrary to common sense, 

company policy, and specific operational instruction, operates a 

dump truck without lowering the bed" (Western Fuels Brief, p. 33). 

It is noted parenthetically at this juncture that the phraseology 

of this contention appears directed more to the mine safety 

concepts of "liability without fault" and mitigation of the 

penalty assessment criterion of negligence than to the "significant and substantial" formula. 

I first find that it is a violation, whether or not a 

"significant and substantial" one. Thus, in reaffirming the 

strict liability or "liability without fault" doctrine's 

application in mine safety matters in Western Fuels-Utah, Inc., 

10 FMSHRC 256 (March 25, 1988), the Commission pointed out that 

the principle of liability without fault requires a finding of 

liability even in instances where the violation results from 

unpreventable employee conduct. It thus rejected the notion of 

an exception to the rule even for unforeseeable employee 

misconduct. ~/ The parties have stipulated, and the record is 

clear, that the accident occurred because the truck operator 

failed to lower and secure the truck bed. The bed was raised 

when the accident occurred CT. 408, 418-419). The truck thus was 

not in "travel position" as the standard requires and Ackerman 

was driving the truck between work areas when the accident 

occurred. This constitutes a violation of the pertinent standard. 

For purposes of liability- as distinguished from penalty 

assessment purposes-- a miner's negligence or misconduct is 

properly imputed to the mine operator. Secretary v. A.H. Smith 

Stone Company, 5 MSHRC 13 (1983). The question of negligence 

imputation for penalty purposes will be taken up subsequently 

herein. 

In a recent decision Secretary v. Texasgulf, Inc., 10 FMSHRC 

(April, 1988) the Commission reaffirmed its position as 

to proof of significant and substantial violations: 

8/ "Travel position" for the truck in question required the bed 

to be secured in its lowered position CT. 113, 242, 253-254). ·As 

noted in the Citation itself and established at the hearing, 

Western Fuels' policy required the truck, when moving, to have 

the bed in the lowered "travel" position CT. 112-115, 226-227, 

310). 

21 I conclude elsewhere herein that the accident in question 

occurred as a result of Mr. Ackerman's unforeseeable negligence. 

982 
"Section 104(d)(l) of the Mine Act provides that a violation 

is significant and substantial if it is of "such nature as 

could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health 

hazard." 30 u.s.c. § 814Cd)(l). A violation is properly 

designated significant and substantial "if, based on the 

particular facts surrounding that violation, there exists 

a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious 

nature." Cement Division, National Gypsum, 3 FMSHRC 822, 

825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984) the Commission explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary 

must prove: Cl) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard -- that is, a measure of danger to safety 

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably 

serious nature. 

The Commission has explained further that the third element 

of the Mathies formulation "requires that the Secretary 

establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984) (emphasis deleted). We have emphasized that, in accordance with the language of section 104(d)(l), 30 u.s.c. 

§ 814(d)(l), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and 

substantial. Id. In addition, the evaluation of reasonable 

likelihood should be made in terms of "continued normal 

mining operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 

1574 (July 1984)." 

In the circumstances of this case, the infraction of the 

safety standard was clearly established, as well as the fact that 

the violation contributed to the creation of a discrete safety 

hazard. Not only was there a reasonable likelihood that the 

hazard contributed to would result in an injury, but the hazard 

actually occurred, that is, it came to fruition when the raised 

truck bed struck the overpass structure, the direct result of 

which were the serious injuries to Ackerman and Smith CT. 

115-118, 408; Ex. M-5). This is found to be a "significant and 

substantial" violation. 

We turn now to the questions of negligence and mitigation. 

Mr. Ackerman was a full-time employee whose primary job was to 

983 
drive the Euclid R-50 haul truck and another haul truck whose 

dumping mechanism was similar to that of the Euclid. Ackerman 

would normally Cat least since December, 1986) make 8-13 trips a 

day from the preparation plant-to the refuse dump CT. 220-222, 

286). Ackerman was familiar with the road-and by inferencethe presence of and characteristics of the overpass he was to 

travel under CT. 283-286; See also "General Findings", supra). 

Western Fuels established that in December, 1986, Mr. 

Ackerman had been trained in the operation of the Euclid R-50 

truck by its Surface Area Foreman, Daniel J. Rideout CT. 

216-218). 

This training covered proper dumping procedures which 

Rideout described as follows: 

"The proper dumping procedures would be to make sure your 

area -- where you're backing on up to --- that there's 

no obstructions or anything in the way, like that. Try 

to be on as level ground as possible, and set your dump 

bed; put your truck in neutral, sound the horn, dump your 

load; lower your bed; sound your horn, again; release your 

dump brake; put it in gear, and that's basically it; you're 

done." 

CT. 220) (emphasis added) 

Rideout described the Euclid R-50 as an "easy-to-drive", 

stable truck which had no tendency to tip over, and said there 

was no occasion on which it should be driven with the bed raised 

CT. 225-226). Ridout reiterated the company "policy" of not 

driving the truck with the bed raised and pointed out that such 

is set forth also in the "Operator Handbook" for the truck, Ex. 

C-7, at p. 33-35, CT. 227, 253, 293). Truck drivers were 

directed to keep a copy of the Handbook in the truck and to read 

it in their idle time CT. 228, 289). Rideout had never seen 

Ackerman driving with the bed up and would have disciplined him 

had he done so CT. 232-233). Rideout was certain that in 

meetings with his drivers, which I conclude would have included 

Mr. Ackerman, that the need for lowering the truck bed before 

traveling was discussed CT. 248, 258, See also T. 288). The 

drivers, however, were not specifically advised that the haul 

truck with the bed up would not clear the overpass, nor were they 

specifically advised what the height of the truck was with the 

bed raised CT. 258). Nor were they specifically advised what the 

clearance of the overpass was CT. 259). This was the only 

overpass the truck drivers would have occasion to drive under 

(Tr. 259). 

The overpass was constructed in 1982 and would have been in 

existence throughout Mr. Ackerman's tenure as truck driver CT. 

251). 

984 
At the time of the accident there was no sign or notice in 

the cab of the truck to remind the driver to lower the bed CT. 

270) although such notice was apparently installed thereafter CT. 

270, 323). There was an "indicator" (depicted in Exhibit C-11> 

which comes down in front of the truck's windshield from which 

the truck driver can determine if the bed was raised or lowered 

CT. 255-256, 262-263, 296). 

Jack L. Munfrada, a Surface Area Foreman, described the bed 

indicator in the following examination sequence: 

"Q. Is there any other way, when you're sitting in the 

driver's seat, or in the passenger's seat, that you can 

see that the bed is in the air? 

A. Yes. There's a bed indicator on the bed of the truck. 

If the bed is lowered, it is in the right-hand corner, 

visually through the eight-inch window, and it is a round 

-- in diameter, approximately five inches, with a decal --

a red and white decal, with a black figure, pointing back 

towards the dump box. Also, you can see it through the 

driver's mirror, very plainly. 

Q. You can see the bed through the driver's 

A. Yes. You could see it out the passenger door window 

you could see the headache rack. And, also, if the bed 

was up in the daytime, you'd notice the change in light." 

CT. 296-297). 10/ 

Based on its maintenance records and "Pre-shift Operator's 

Check Lists", Western Fuels had no indication to believe that the 

subject truck was not functioning properly in proximity to the 

accident (T. 402-406, 410-413) and in the absence of any other 

evidence to the contrary, and in light of the evidence indicating 

operator failure as the cause of the bed not being lowered to 

travel position, it is inferred and found that the truck was in 

proper operating condition at the time of the accident. 

The record in this proceeding indicates that the cause of 

the accident was the operator's failure to lower the bed before 

proceeding on to the haul road and moving the vehicle to its 

point of impact with the overpass structure. 

10/ From this dialogue as well as other evidence CT. 255-259) 

indicating other reasons why a truck driver would normally know 

or be aware of the raised bed, I find and infer that for a driver 

of the truck in question to proceed along the haul road with the 

truck bed raised and not have such fact enter the stream of his 

consciousness would be an unusual occurrence and one which would 

not be foreseeable by his foreman or other management CT. 471). 

985 
David G. Casey, western Fuels' Safety Instructor, testified 

that he visited Mr. Ackerman in the hospital on the day of the 

accident and recounted this conversation concerning what had 

happened: 

Q. And, did he explain to you what happened? 

A. Yes. And -- and he said that he ~paced it -- he 

couldn't believe that he'd spaced it out. 

xxx xxx xxx 

"The Witness: He couldn't believe that he'd spaced it out 

-- referring to the dump bed being up." 

CT. 455-456) 

When pressed to develop his understanding of Ackerman's use 

of the phrase "spaced out", Mr. Casey stated: 

"The Witness: -- and he said "spaced out", and then we 

he said "I can't believe I f----- up", and he repeated it 

again, "I can't believe I did that", you know." 

CT. 471) 

From this and other evidence of record indicating Ackerman 

was a "good" employee who had received safety training CT. 

439-445) it is concluded that the accident resulted from Mr. 

Ackerman's negligent oversight in not lowering the bed of the 

truck, and that such negligent conduct was not foreseeable by 

Western Fuels' responsible management personnel. Southern Ohio 

Coal Co., 4 FMSHRC 1459, at 1463-1464 Cl982). In this 

connection, it is further noted that there is no evidence of 

prior accidents having occurred at the overpass CT. 465). 

While a mine operator is not necessarily shielded from 

imputations of negligence even where non-supervisory employees 

such as Mr. Ackerman are concerned, A.H. Smith Stone co., 5 

FMSHRC 13 Cl983), for the negligence of the miner to be attributed to the operator, consideration must be given the 

foreseeability of the miner's conduct, the risks involved, and 

the operator's supervision, training and discipline of its 

employees. Here, the record indicates that the mine operator 

fulfilled its obligations as to training and in the establishment 

of its policy as to not operating the truck with the bed raised. 

MSHA, in its brief does not contend (or discuss) imputation. Mr. 

Ackerman's negligence in the commission of the violation will not 

be imputed to Western Fuels, Southern Ohio Coal Co., supra, at 

1465. 

In view of the seriousness of this violation, and upon 

evaluation of the other general mandatory penalty assessment 

986 
factors previously discussed in connection with Citation No. 

2835326, a penalty of $300.00 is determined to be appropriate and 

assessed. 

E. Docket No. WEST 87-169-R 

Citation No. 2835328 

. The "Condition or Practice" deemed a violation by Inspector 

Hollopeter was described in Section 8 of the Citation as follows: 

"The No. 2 Beltline Conveyor Overpass above the haul road 

(County Rd. No. 78) was not conspicuously marked or warning 

devices installed when necessary to insure the safety of 

the workers. A nonfatal powered haulage accident occurred 

when an Euclid R-50 End dump (Co. No. 4) raised bed contacted the overpass while traveling on the haulage road. The 

operator of the truck and passenger were severely injured. 

At the time of the investigation the overhead clearance 

was not marked. 

The standard allegedly violated was Subsection Cc) of 30 

C.F.R. 77.1600 (entitled "Loading and haulagei General") which 

states: 

"Where side or overhead clearances on any haulage road 

or at any loading or dumping location at the mine are 

hazardous to mine workers, such areas shall be conspicuously marked and warning devices shall be installed 

when necessary to insure the safety of the workers." 

Although the Inspector originally charged that this was a 

"significant and substantial" violation, the Citation was 

subsequently modified to delete such designation upon further 

investigation CT. 158-160). 

Western Fuels contends that the Conveyor CCNV-2) overpass 

was not "hazardous to mine workers" and thus warning signs (or 

devices) were not required. 

Evidence in the record establishes that other than speed 

limit signs CT. 448) there were no signs, warnings, "clearance" 

signs or flashing lights on the overpass structure or conveyor 

(T. 118-121, 189-192, 245-246, 259, 463), or on the road on 

either side of the structure CT. 189, 448). Specifically, there 

was no sign on the overpass which said what the clearance was (T. 

259). Inspector Hollopeter was of the opinion a hazard existed 

because there was no sign warning of the clearance of the 

overpass structure either on the structure itself or back along 

the haul road (T. 121-125). 

987 
There are no regulations applicable in mine safety matters 

which establish height requirements for structures such as the 

subject overpass CT. 382). · 

The U.S. Department of Transportation's Manual on Uniform 

Traffic Control Devices (Ex. C-14) requires signs when less than 

12 inches clearance is provided over the highest vehicle being 

used on the roadway CT. 380-381). 

Chief Engineer Weigand expressed the opinion that prior to 

the accident the overpass structure was not "dangerous" 

"perilous" or "risky" CT. 386). As noted previously, there had 

been no prior accidents at the overpass, and in view of Cl) the 

significant clearance height of the overpass (ranging from 20-27 

feet approximately), (2) the general compliance of the structure 

with requirements other governmental agencies CT. 380-384)), (3) 

the general opinions of Western Fuels witnesses that the overpass 

was not "perilous" or dangerous, (4) the vagueness of MSHA's 

evidence and theory that the overpass was hazardous, and (5) the 

fact that the accident under scrutiny herewas caused by the 

forgetfulness of a truck driver who broke the rule against 

driving with the bed raised and who had been passing under the 

overpass some 20 times a day for months, it is concluded that the 

overpass clearance was not "hazardous" within the meaning of the 

regulation cited and that no violation occurred. 

ORDER 

Cl) Withdrawal Order No. 2835325 and its modifications are 

affirmed. 

(2) Citations numbered 2835326 and 2835327 {including its 

"Significant and Substantial" designation> are affirmed. 

(3) Citation No. 2835328 is vacated. 

Contestant/Respondent Western Fuels shall pay the Secretary 

of Labor the total sum of $450.00 as and for the civil penalties 

hereinabove assessed on or before 30 days from the date of this 

decision. 

//,,. . /. ~{! ,/~_ ~ ,,6 . /.J'~~~e· · ~df" A __ ~1chael • Lasher, Jr. 

Administrative Law Judge 

988 
Distribution: 

Karl F. Anuta, Esq., P.O. Box 1001, 2120 13th Street, Boulder, co 

80306 (Certified Mail> 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

co 80294 (Certified Mail) 

United Mine Workers of America, Local 1984, District 15, Box 615, 

Rangely, CO 81648 (Certified Mail) 

/bls 

989 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRA"flVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 5 \988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 87-77-M 

A.C. No. 34-00026-05513 

v. 

Tulsa Cement Plant 

BLUE CIRCLE INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Michael Olvera, Esq., Office of the Solicitor, 

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

the Petitioner; 

Robert McCormac, Industrial Relations Manager, 

Blue Circle Inc., Tulsa, Oklahoma, for the 

Respondent. 

Judge Koutras 

Statement of the case 

This proceeding concerns proposals for assessment of 

civil penalties filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

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

assessments in the amount of $377 for five alleged violations 

of certain mandatory safety standards found in Part 56, 

Title 30, Code of Federal Regulations. The respondent filed 

an answer denying the violations, and a hearing was held in 

Tulsa, Oklahoma. The parties were afforded an opportunity to 

file posthearing briefs, and the respondent's arguments presented therein have been considered by me in the adjudication 

of this matter. The petitioner opted not to file any posthearing arguments. 

Issues 

The issues presented in this proceeding are whether the 

respondent violated the cited mandatory safety standards, and 

if so, the appropriate civil penalty to be assessed for those 

990 
violations based on the criteria found in section llO(i} of 

the Act. Also at issue are the inspector's "significant and 

substantial" CS&S) findings, and the respondent's contention 

that the petitioner failed to follow its civil penalty assessment regulations by not affording the respondent an opportunity for a conference with respect to one of the modified 

citations. 

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~· 

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

3. Conunission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 3): 

1. The respondent's history of violations during the 

24-month period prior to the issuance of the citations in 

issue in this case consists of ten (10) violations issued 

during the course of 40 inspection days. 

2. The respondent's Tulsa Cement Plant had an annual 

production of 235,139 tons, and the annual production rate of 

its parent corporation, Blue Circle, Incorporated was 

1,577,966 tons. 

3. The payment of civil penalties for the violations in 

question in this case will not adversely affect the respondent's ability to continue in business. 

4. The respondent's representative stated that the 

respondent mines limestone, and that the product produced is 

Portland cement. 

Discussion 

The contested citations were issued by MSHA Inspector 

James M. Smiser during the course of inspections he conducted 

at the mine on March 24 and 25, 1987, and they are as follows: 

Section 104(a} "S&S" Citation No. 2870013, March 24, 

1987, cites a violation of 30 C.F.R. § 56.20003(a}, and the 

condition or practice states as follows: 

The passageway on the #3 conveyor, in 

crushing division, was not maintained in a 

991 
clean and orderly condition. An excessive 

amount of rock and materials were allowed, to 

accumulate on passageway, making movement 

hazardous for employee. 

Section 104Ca) "S&S" Citation No. 2870015, March·24, 

1987, cites a violation of 30 C.F.R. § 56.4102, and the condition or practice states as follows: 

The combustible liquid spillage and leakage, at the Allis-Chalmers primary crusher 

hydraulic control center, was not removed in a 

timely manner, or controlled to prevent a fire 

hazard. The oil spill/leak was large enough to 

cover floor area used as a passageway. 

The citation was subsequently modified on May 11, 1987, 

to change the cited standard from section 56.4102 to section 

56.20003, and the condition or practice was modified to read 

as follows: 

The floor at lower level of the primary 

crusher work area was not maintained in a clean 

and dry condition. The hydralic (sic) oil 

spillage and leakage at the hydralic (sic) 

control center covered the floor area used as a 

passageway. 

Section 104Ca) "S&S" Citation No. 2870016, March 24, 

1987, cites a violation of 30 C.F.R. § 56.20003(a), and the 

condition or practice states as follows: 

The passageway on west end of primary 

crusher discharge leaf conveyor was not maintained in a clean and orderly condition. The 

passageway was cluttered with steel plates, 

wood, and other materials. 

Section 104(a) "S&S" Citation No. 2870742, March 24, 

1987, cites a violation of 30 C.F.R. § 56.6112, and the 

condition or practice is described as follows: 

The burning rate of the safety fuse in use 

at quarry operation was not measured, posted in 

conspicuous location, and brought to the attention of all persons concerned with blasting. 

The last posted burning rate was 1985. 

992 
Section 104(a) "S&S" Citation No. 2870741, March 25, 

1987, cites a violation of 30 C.F.R. § 56.11012, and the condition or practice is stated as follows: 

The opening at far east end of travelway, 

on north side of conveyor, between plant and 

clinker storage area is not provided with railings, barriers, or covers, to provide employee 

protection from a 15 to 20 feet fall, to bottom 

of storage bin. 

MSHA's Testimony and Evidence 

MSHA Inspector James s. Smiser, testified as to his background and experience, and he confirmed that he issued the 

citations in question during the course of a scheduled regular 

inspection conducted at the mine. He described the mine as an 

open pit limestone mine with an associated cement mill, and he 

confirmed that the mine employed approximately 80 employees 

working three shifts (Tr. 6-9). 

Citation No. 2870013 - 30 C.F.R. § 56.20003(a) 

Inspector Smiser stated that he issued the citation for 

an accumulation of materials which he found along an inclined 

conveyor belt that is used in conjunction with the crushing of 

materials. He believed that the material had fallen off the 

belt onto the walkway or passageway along the north side of 

the belt which proceeded from ground level up into the mill 

building. The crushed limestone material was of various 

sizes, from three-quarters of an inch to an inch and a half, 

and in some areas it completely covered the walkway surface, 

running over the kick-plate located along the side of the 

floor of the walkway. He confirmed that section 56.20003(a) 

requires that passageways or walkways be maintained in a safe 

condition free of accumulated materials, and in his opinion, 

the cited accumulations presented a tripping or falling hazard. 

The purpose of the three-inch kickplate was to prevent the 

materials from falling off the walkway to the ground level 

below and to prevent persons using the walkway from falling 

off the walkway. He confirmed that a standard handrail, with 

an upper and mid rail, was installed along the walkway (Tr. 

10-11). 

Mr. Smiser stated that his gravity finding of "highly 

likely" was based on his opinion that the presence of accumulated materials above the kickplate level presented a "very 

great chance" of someone falling. Although someone falling 

would not fall to the ground level below, they would probably 

993 
catch themselves within the walkway area, but could possibly 

sustain a back lnjury or a broken arm, leg, or ankle. He 

determined that one individual such as a serviceman conducting 

an equipment inspection regularly travelled the walkway and 

would be exposed to the hazard. Such a person would normally 

be carrying a grease gun or other service equipment in one 

hand, leaving only one hand free for balance in the event he 

fell. This increased the chances of an injury. 

Mr. Smiser believed that it was reasonably likely that 

the hazard created by the accumulations would result in an 

injury of a reasonably serious nature (Tr. 11-13). Mr. Smiser 

confirmed that he made a finding of "moderate negligence" 

based on information supplied to him during his close-out conference which indicated that the accumulations had existed 

prior to his inspection and would have been there more than 

one time. He was told that the accumulations resulted from an 

engineering problem associated with the conveyor and were 

often present. Abatement was achieved by the removal of the 

materials from the walkway (Tr. 13). 

On cross-examination, Mr. Smise~ stated that it was 

unlikely that anyone could slip completely under the handrail, 

and he confirmed that he was familiar with the respondent's 

belt maintenance procedures (Tr. 28). 

Citation No. 2870015 - 3-0 C.F.R. § 56.4102 

Mr. Smiser stated that he issued the cit~tion after finding spillage of hydraulic fluid caused by a leak of a crusher 

hydraulic system located in the crusher plant. The spillage 

was located on the concrete floor area which was surrounded by 

handrails. The leak had been present for some time, and in an 

effort to control it, clay absorbent material was spread over 

the spillage in an effort to dry it up. At a later date, 

wooden planks were put down over the spillage for access 

around the crusher to the hydraulic control unit. Mr. Smiser 

stated that section 56.4102 requires that the floor "be kept 

clean and orderly" (Tr. 15). 

Mr. Smiser believed that the cited condition presented a 

probable slip and fall hazard to a serviceman who periodically 

was in the area to check the hydraulic oil in the crusher 

unit, and that he would likely suffer back injuries if he were 

to slip and fall on the walkway surface. Mr. Smiser estimated 

that the variance between the flat walking surface and the 

planks ranged between zero and 3 inches. He believed the condition resulted from "high negligence" because it was obvious 

that the spillage and leakage had existed for some time since 

994 
the clay absorbent material and wooden planks had been used in 

an attempt to control the spillage. The violation was abated 

by the removal of the spillage and controlling the leak (Tr. 

16-17). 

On cross-examination, Mr. Smiser confirmed that his citation was subsequently modified on May 11, 1987, to delete the 

reference to section 56.4102, and to replace it with section 

56.20003, and that his original negligence finding was modified from "moderate" to "high." Mr. Smiser confirmed that the 

modifications were made after a post-citation conference with 

his supervisor Russell Smith in which he and Mr. McCormac were 

involved. Mr. Smiser confirmed that he believed the original 

citation was properly issued but that Mr. Smith believed that 

the cited hydraulic oil was not as combustible as he (Smiser) 

had originally believed, and that the decision to modify the 

citation was made by Mr. Smith (Tr. 30). Mr. Smiser stated 

that the modified citation was mailed to the respondent and he 

had no knowledge as to whether or not another conference was 

held to discuss a clean-up problem rather than a combustibility problem (Tr. 31). Mr. Smiser conceded that the use of 

absorbent materials and the installation of wooden planks on 

the floor in an area of spillage is normally done to alleviate 

or avoid problems and as an effort to provide safe access. He 

was sure that a serviceman had to go to the area to check the 

hydraulic oil, but could not state how often this would occur 

(Tr. 32-33). 

Citation No. 2870016 - 30 C.F.R. § 56.20003(a) 

Inspector Smiser stated that he issued the citation after 

finding steel plates, wood, and other materials such as cans 

of lubricant on the walkway which had been constructed around 

a leaf conveyor. The conveyor itself was well guarded and 

presented no problem. The steel plates consisted of removable 

inspection and service covers which had apparently been 

removed at some previous time and left on the walkway. The 

plates were located at the top of a staircase leading to the 

walkway. Once reaching the top of the staircase, one had to 

step on top of the plates which were stacked unevenly on top 

of each other in a "tipping" manner. Since there was no solid 

walkway surface, he believed that it was reasonably likely 

that an injury would occur in the event of a slip or fall (Tr. 

18) • 

Mr. Smiser stated that the walkway in question was in a 

very isolated area of the plant which was not traveled by a 

large number of people, but that a serviceman in the area 

servicing the conveyor and associated equipment once a shift 

995 
would be exposed to the hazard. Mr. Smiser believed that if a 

·slip or fall injury occurred, there was a reasonable likelihood that it would be of a reasonably serious nature. He made 

a determination of "moderate negligence" on the basis of the 

amount of stone dust on top of the plates and other materials, 

indicating that they had been present for some time. ·The violation was abated by the removal of the materials (Tr. 18-19). 

On cross-examination, Mr. Smiser stated that the passage~ 

way in question did not lead to any other location, and in 

order to get back from where one started, one would have to 

turn around and go back in the opposite direction. Under the 

circumstances, it would be unlikely that employees on any 

casual travel through the plant would use the cited passageway, and any hazard exposure would be extremely limited on the 

platform. Mr. Smiser confirmed that it was possible that a 

failure of a dust collector earlier on the day of his inspection could have caused the presence of the dust which he 

observed on the materials, and that such a failure could 

possibly accumulate dust in a fairly rapid period of time (Tr. 

40). The removal of the plates from the conveyor would not 

pose a hazard to employees in the area from which they were 

removed because the walkway would not normally take anyone to 

that particular area (Tr. 49). 

Citation No. 2879742 - 30 C.F.R. § 56.6112 

Mr. Smiser stated that he issued the citation after finding that the last safety fuse burning rate posted in the magazine was dated 1985. Since his inspection was conducted in 

1987, he was concerned that the 1985 burning rate may not have 

referred to the identical material which was burned and then 

marked on the wall for use in 1987. He was also concerned 

with the fact that the 1985 fuse burning rate was currently 

being maintained as it was in 1985, and that explosives "have 

of a way of aging unpredictably." He believed that a more 

current rate should have been posted, and he pointed out that 

the explosive manufacturer's literature suggests that the age 

of explosives in very unpredictable in terms of performance. 

Under these circumstances, he stated that "I was not comfortable with the two-year time," and he confirmed that the explosives industry recommends that explosives should be tested at 

least once a year. He also confirmed that section 56.6112 

does not include any dating requirement (Tr. 20-21). 

Mr. Smiser stated that he based his gravity finding of 

"reasonable likely" on the fact that if the fuse burning rate 

was greatly increased, an individual using the explosives may 

not be able to get away from it before an explosion took place. 

996 
If he could not, serious injuries would result to one individual lighting the fuse (Tr. 22). He made a finding of "low 

negligence" because the respondent made an effort to comply by 

posting the 1985 fuse burning rate and did not ignore the 

regulation. Abatement was achieved by testing the current 

fuse burning rate, and this was done by cutting off a measured 

length and determining the proper fuse burning rate and 

re-posting it. He could not recall the exact burning rate 

time but indicated that it "was very close" to the 1985 rate 

which had been previously posted (Tr. 22-23). 

On cross-examination, Mr. Smiser confirmed that the frequency of posting a fuse burning rate, as recommended by a 

manufacturer such as Dupont, cannot be readily ascertained by 

anyone by simply looking through MSHA's Part 56 standards, and 

that one cannot know by reference to these regulations as to 

whether or not MSHA has incorporated these recommendations as 

part of its regulatory mandatory standards. He also confirmed 

that the only way for the respondent to know whether the recommendations by a manufacturer have been adopted by MSHA is to 

ask an inspector when a citation is issued, or by a reference 

to the recommendation itself (Tr. 42). 

Mr. Smiser stated that while other MSHA standards do 

incorporate alcohol, tobacco, and firearms regulations and 

provisions of the National Electric Code as part of its regulations, one cannot find how often a safety fuse burning rate 

should be posted because Dupont's ·blasting guides are not 

incorporated by the cited standard (Tr. 42-43). Assuming that 

the fuse burning rate posted at the time of the citation was 

the same as the earlier rate 2 years ago, Mr. Smiser saw no 

need to post it again and he would simply change the date (Tr. 

43-44). Mr. Smiser confirmed that he determined that the fuse 

in the magazine which was being used in 1987 came from an identical spool which was purchased in 1985 or earlier (Tr. 44). 

Mr. Smiser confirmed that periodic blasting was taking place 

during March, 1987, and assuming his inspection took place in 

1985, no citation would have been issued because the burning 

rate was posted and brought to the attention of mine personnel. 

He issued the citation because the posted burning rate was 

outdated and at least 2 years old (Tr. 48-49). 

Citation No. 2870741 - 30 C.F.R. § 56.11012 

Mr. Smiser stated that he issued the citation after finding that an opening at the end of a travelway alongside an 

inclined conveyor running between the cement processing building and the clinker storage area was unguarded and had no 

barrier to prevent an employee from stepping off the walkway 

997 
into the.storage area below. Although the respondent's practice concerning the wearing of safety glasses and safety equipment was very good, since the materials being transferred from 

the belt to the storage area were hot, any given any humidity 

present in the area, safety glasses can "fog up" very quickly 

when one steps into the storage area. Mr. Smiser was concerned 

that the unguarded area posed a potential for someone slipping 

off the edge of the travelway into the storage bin. Section 

56.11012 required a barrier or cover on the open-ended walkway 

(Tr. 24) • 

Mr. Smiser confirmed that although the unguarded area was 

small, with a little walking area, a serviceman would be in 

the "slipping area" and could fall through the unguarded opening for a distance of 15 to 20 feet or less, depending on the 

build-up of loose materials in the cone-type configuration bin 

below. Although he believed that someone falling into the bin 

would have his fall broken by the loose materials and would 

probably not suffer fatal injuries, he believed that they would 

probably suffer a back injury or broken bones. A serviceman in 

the area servicing the dead pulley and associated conveyor 

parts would be exposed to the hazard (Tr. 25). 

Mr. Smiser stated that he made a finding of "low negligence" because the respondent had not discovered the opening 

or it probably would have covered it, and MSHA had not previously defined this area as a problem. The violation was . 

abated after the respondent provided a guard at the end of the 

walkway (Tr. 26). 

On cross-examination, Mr. Smiser stated that the conveyor 

walkway entered the storage area of the adjacent building 

where the tail pulley was located. He confirmed that it would 

be unlikely that an employee would use the walkway as a means 

of traveling from one point to another, except for performing 

some work in the area. In the event that no work had been 

done in the area for weeks or months, this would possibly 

explain why the opening was not discovered, and it was possible that there was extremely infrequent traffic in this area. 

Even so, he still believed that it was not unlikely that an 

accident could occur (Tr. 46). However, he would be surprised 

if there was no one in the area at least once a shift to check 

the conveyor service points, head pulley gear box, and to 

check oil levels and grease the equipment (Tr. 47). 

Respondent's Testimony and Evidence 

Lee Bales, retired quarry superintendent, testified as to 

his work experience, and he confirmed that he was actively 

998 
employed during the time of the inspection. Respondent's 

representative made a videotape presentation of the locations 

where the violations in question were issued, and Mr. Bales 

explained what was depicted in the various scenes shown on the 

videotape. The videotape was presented for the purpose of 

familiarizing the court, and the parties, with the location 

and physical parameters of the areas covered by the citations 

issued by Inspector Smiser. Respondent's representative confirmed that the videotape was made subsequent to the issuance 

of the citations, and that it does not show the area concerning the safety fuse burning rate citation (2870742), and that 

Citation No. 2870741, dealing with the unguarded opening at 

the end of the conveyor would be covered by another witness 

(Tr. 61, 79). 

Citation No. 2870013 

Mr. Bales explained the purpose of the conveyor, and he 

confirmed that the floor is constructed of grating, and that 

the conveyor operates 5 days a week 8 hours a day. He stated 

that an employee walking through the quarry area would have no 

reason to use the conveyor aa a regular means of travel from 

one place to another, and that they would normally use a staircase to gain access to the crusher building. However, the 

conveyor walkway is used to gain access to the conveyor in the 

event of maintenance problems or when the system is down for 

maintenance or service. Normal operational procedures call 

for the cleaning of the walkway when maintenance is required, 

and in his 10 years as a supervisor there were no accidents or 

injuries caused by materials on the walkway (Tr. 62-65). Any 

greasing could be done from ground level by means of grease 

hoses (Tr. 77). 

Citation No. 2870015 

Mr. Bales stated that there is no need to walk through 

the cited area in the normal course of travel in the plant, 

and the only need for anyone to be there is to perform maintenance work. A lubrication pump in the area periodically 

causes oil leakage problems due to the over-tightening of a 

"weeper seal," and attempts are made to keep any leakage off 

the walkway floor by means of a bucket kept under the pump. 

In addition, the area is always wet due to rain water running 

into the area from outside, and "soakum" material and wooden 

planks were used to alleviate these oil leakage and water 

problems until the area could be cleaned up. Mr. Bales stated 

f~rther that because of production and equipment difficulties 

in any crushing operation there are occasions where more than 

one area of the plant is in an unclean condition, and that in 

999 
the exercise of his judgment as a supervisor, he must determine which area needs to be cleaned first. Any such decisions 

are made primarily on the basis of safety and any potential 

employee hazard exposure, and secondarily, any potential equipment damage. In his view, the cited area was a low hazard 

area, and that the respondent's safety record attests to this 

(Tr. 65-67). 

On cross-examination, Mr. Bales stated that the pump is 

operating constantly when the crushing system is running, and 

during the winter months it operates all day. This causes a 

seal "seepage" problem, and the buckets used to catch the 

overflow would run over, and this would result in "a film of 

oil" on the floor. The oil would never run over the woqden 

planks (Tr. 75-76). 

Citation No. 7870016 

Mr. Bales stated that except for little maintenance work, 

employees traveling through the cited area would not normally 

use the passageway as a route to another work place. Any 

oiling of equipment would be done while the equipment was 

idle, and any clean-up judgments are made on the basis of the 

hazard involved, and in his opinion the cited conditions would 

not likely cause any accident of a reasonably serious nature 

(Tr. 69). 

Citation No. 2870742 

Mr. Bales confirmed that he supervised the blasters, and 

he explained the state training and licensing requirements for 

blasters. He stated that the respondent uses safety fuses to 

shoot water out of holes by means of a power primer and a 

3-foot length of fuse. Other blasting is done by an electrical "non-els" system. All blasters working for him are certified, and they are instructed in the proper use of safety 

fuses. The safety fuses were not used very often, and at 

times, 2 or 3 months would pass before there was a need to 

blast water out of holes. 

Mr. Bales stated that he determined the burning rate of 

the safety fuse by burning it, and the rate was posted in the 

magazine, a conspicuous place for employees who had access to 

the fuse. Only he and the blaster had such access, and in his 

opinion, he complied with the requirements of section 56.6112. 

He confirmed that the standard contains no time restraints on 

the frequency of posting the fuse burning rate, and he would 

always test the fuse burning rate and post it as necessary. 

1000 
The standard does not require posting each time the fuse rate 

is tested (Tr. 69-73). 

On cross-examination, Mr. Bales confirmed that for many 

years safety fuses have only been used for shooting water out 

of holes. He also confirmed that he was "comfortable" with 

the posted 1985 fuse burning rate, and if he were not, he 

would have checked it and changed the date (Tr. 75). 

Kenneth A. Lloyd, Process Engineer, and former maintenance 

manager for 9 years, testified that he was familiar with most 

of the plant areas and has had occasion to be in those areas 

during his employment with the respondent. Referring to a 

videotape presentation concerning Citation No. 2870741, 

Mr. Lloyd explained the operation of the conveyor in question 

and described the location where the citation was issued. He 

confirmed that the alleged unguarded area was at the end of the 

conveyor where a chain was installed, but not hooked up (Tr. 

86). Respondent's representative asserted that there were two 

chains in place, but that neither were hooked up. Mr. Lloyd 

confirmed that the conveyor ends at the point where one can 

enter the adjacent storage area, and that anyone walking to the 

end of the conveyor would have to turn around and go back, 

since the walkway ended at that point (Tr. 87-88). 

Mr. Lloyd stated that a platform was installed several 

years ago to facilitate some electrical work in connection 

with the clinker storage area, but that normal maintenance 

work was not performed from that platform. The platform is 

used as access to a gate system used for freeing any material 

blockage which seldom occurs. Any employee required to be on 

the platform would use standard safety equipment such as a 

safety belt and safety line attached to the handrailing (Tr. 

89). No one is required on the platform to perform any 

routine inspection or lubrication of the conveyor, and in his 

opinion it was not reasonably likely that a serious injury 

would result from the lack of a barrier at that platform 

location (Tr. 90). 

On cross-examination, Mr. Lloyd confirmed that the chains 

were originally installed as a safety barrier so that someone 

could reach into the chute area with a pole to free any 

material blockage. It was his understanding that the chains 

were unhooked at the time of the inspection (Tr. 90). In the 

event the chains are unhooked, an employee would be required 

to wear a safety belt (Tr. 91). In response to further questions, Mr. Lloyd confirmed that the platform was located at 

the same location as the end of the conveyor, which ends at 

the same approximate location. He also confirmed that there 

1001 
was a spac~ between the platform and the conveyor, and if the 

chains were not hooked up, there would be a drop to the 

storage area below. A railing was provided for protection for 

anyone falling off the conveyor travelway. Respondent's 

representative confirmed that the chain location was the area 

which concerned the inspector, and Inspector Smiser agreed. 

Mr. Smiser could not recall the presence of any installed 

chain, and confirmed that there was no barrier there. He also 

confirmed that a handrailing was provided, and assuming the 

presence of an unhooked chain, he would have issued a citation 

for not having the chain up. Respondent's representative 

stated that he was with the inspector during his inspection, 

and was surprised that the chains were not hooked up. 

Mr. Smiser confirmed that he did not have his inspection notes 

with him (Tr. 92-95). 

Robert McCormac, respondent's representative, reiterated 

under oath that he was with the inspector and that a chain was 

installed but was not hooked up. He confirmed that on prior 

visits the chain was always hooked up, and that he was surprised that it was not hooked up at the time of the inspection. 

Although the citation does not refer to any chain, he was convinced that the citation was issued because the chain was not 

attached across the end of the walkway (Tr. 96). He also 

agreed that there was an opening beyond the chain location 

(Tr. 97). 

With regard to Citation No. 2870015, Mr. McCormac read a 

prepared handwritten statement explaining the respondent's 

position concerning the citation. The statement consists of 

arguments pointing out the mo<lif ication to the citation, the 

subsequent conference held with MSHA's district manager, and 

the fact that the respondent was not afforded another 

conference after the citation was modified (Tr. 97-105). 

Mr. McCormac conceded that the cited conditions did exist (Tr. 

106). 

Findings and Conclusions 

Fact of Violations 

Citation Nos. 2870013 and 2870016, 30 C.F.R. § 56.20003(a) 

The inspector issued these citations after finding accumulations of rock and materials along the passageway of the 

No. 3 belt conveyor, and steel plates, wood, and other materials along a passageway at the west end of a primary crusher 

leaf conveyor. He cited a violation of the housekeeping 

1002 
requirements of mandatory standard section 56.20003(a), which 

provides as follows: 

At all mining operations-

(a) Workplaces, passageways, storerooms, 

and service rooms shall be kept clean and 

orderly; 

* * * * * * * 

In its posthearing arguments, respondent takes the position that the cited areas were not "passageways," and that the 

citations should be vacated. Citing Webster's Dictionary 

definition of a passageway as "a way that allows passage to or 

from a place or between two points," and relying on the testimony of its former quarry supervisor Mr. Lee Bales, that 

employees walking through the quarry area would not have 

reason to use the conveyor walkways as a normal means of 

getting from one place to another, or for access or as a means 

of travel to any point in the plant, the respondent concludes. 

that the cited areas were not passageways. 

The definitions found in section 56.2, do not define the 

term "passageway." The term "travelway" is defined as "a 

passage, wall{ or way regularly used and designated for persons 

to go from one place to ancither." Webster's New Collegiate 

Dictionary defines the term "passageway" as "a way that allows 

passage." 

While it may be true that the No. 3 conveyor passageway 

was not used by mine personnel in general as a means of travel 

from the quarry to the plant, the facts show that it was a 

walkway adjacent to the inclined conveyor which provided a 

means of travel and access to the conveyor by mine personnel 

and others who had a need to be there from time to time. As a 

matter of fact, the parties in this case characterized the 

"passageway" as a "walkway," and on the facts here presented 

those terms are used interchangeably. Inspector Smiser testified that the walkway or passageway was used on a regular 

basis as a means of travel along the conveyor by service 

personnel for inspection or maintenance purposes. 

With regard to the leaf conveyor location, the inspector 

characterized the passageway as a walkway which provided 

access to the conveyor and associated equipment, as well as 

certain removable conveyor inspection and service plates. 

Although the inspector conceded that the cited area was not 

frequently travelled and was rather isolated, he confirmed 

1003 
that a serviceman would be in the area at least once during 

each shift.to service the conveyor and other equipment. 

Quarry superintendent Bales testified that the No. 3 conveyor walkway was used as a means of access to the conveyor 

for maintenance or servicing, as well as for routine cleaning 

of the walkway. As for the leaf conveyor, he confirmed that 

while no one would normally use the passageway or walkway as a 

means of travel to another workplace, service personnel would 

have occasion to be in the area for routine cleanup or maintenance work. 

Respondent's reliance on the Allied Chemical Corporation 

decision, 2 FMSHRC 950 (April 1980), is not well-taken. In 

that case, the operator was cited with a violation of mandatory safety standard section 56.11-1, which required that a 

safe means of access be provided and maintained to all working 

places. The violation was issued after an inspector found an 

accumulation of muck on a platform. Former Commission Judge 

Forrest Stewart vacated the citation after finding that the 

record did not establish that the platform was a "working 

place" with the definition of that term pursuant to section 

56.2, because there was no evidence that any work was being 

performed, had ever been performed in the past or would be 

performed in the future, while the accumulation was present. 

Judge Stewart observed that the cited standard was not a housekeeping standard, but one requiring safe access to places 

where work is being performed. 

The Standard Slag Company decision, 2 FMSHRC 3312, 3324 

(November 1980), cited by the respondent, also concerned a 

violation of the safe access requirement of section 56.11-1, 

and I vacated the citation after finding that a cited catwalk 

and platform under a conveyor was not a "working place" within 

the definition found in section 56.2. The Magma Copper Company 

case cited by the respondent, 1 FMSHRC 837, 856 (July 1979), 

concerned a violation of section 57.11-12, which required that 

openings above, below, or near travelways be protected by 

barriers. I vacated the citation after finding that an elevated platform located 100 feet off the ground, and which was 

used infrequently, was not a travelway within the meaning of 

the cited standard or the section 57.2 definition of that term. 

In the instant case, the respondent is dharged with a 

violation of the housekeeping requirements of section 

56.20003(a) which required passageways to be kept clean and 

orderly. It is not charged with a failure to provide a safe 

means of access to a working place. Further, the fact that 

clean-up of the conveyor adjacent to the cited passageway was 

1004 
a regular part of the respondent's maintenance effort is only 

relevant insofar as the negligence and gravity connected with 

the violation is concerned. It may not serve as an absolute 

defense in a situation where the inspector finds an accumulation of rock and materials which may pose a hazard to anyone 

walking along the conveyor passageway. The presence of such 

accumulations do not comply with the requirement that such 

areas be kept clean. 

The respondent has not rebutted the fact that the cited 

accumulations of rock materials were in fact found by the 

inspector along the cited conveyor walkway or passageway in 

question, nor has it rebutted the existence of the steel 

inspection plates, wood, and other materials such as cans of 

lubricant on the walkway on the location of the leaf conveyor. 

The cited standard section 30 C.F.R. § 56.20003(a), requires 

that such areas be kept clean. Given ~he existence of the 

materials found by the inspector, I conclude and find that the 

cited areas were not maintained in a clean condition as 

required by the cited standard, and that the failure by the 

respondent to keep these areas clean constituted violations of 

the standard. Further, I reject the respondent's arguments 

that the cited areas were not passageways. To the contrary, 

regardless of whether they are characterized as "passageways" 

or "walkways," the facts here establish that the cited locations provided a means or travel, access, and passage to and 

from the cited areas by mine personnel who would have a need 

to be there for service, maintenance, or cleanup work. 

Accordingly, the citations ARE AFFIRMED. 

Citation No. 2870015 - 30 C.F.R. § 56.20003 

This citation was issued on March 24, 1987, after the 

inspector found some oil spillage on the floor area at the 

primary crusher hydraulic control center. He characterized 

the spillage as "combustible," and stated that it was large 

enough to cover the floor areas used as a passageway. The 

inspector stated that the spillage was "not removed in a 

timely manner, or controlled to prevent a fire hazard," and he 

cited a violation of mandatory standard section 56.4102, which 

provides as follows: 

Flammable or combustible liquid spillage or 

leakage shall be removed in a timely manner or 

controlled to prevent a fire hazard. 

The citation was subsequently modified on May 11, 1987, 

and it was served on tha respondent. The modified citation 

1005 
deleted any reference to section 56.4102, and charged a violation of the housekeeping requirements of section 56.20003, 

which provides as follows: 

At all mining operations--

(a) Workplaces, passageways, storerooms, 

and service rooms shall be kept clean and 

orderly; 

Cb> The floor of every workplace shall be 

maintained in a clean and, so far as possible, 

dry condition. Where wet processes are used, 

drainage shall be maintained, and false floors, 

platforms, mats, or other dry standing places 

shall be provided where practicable; and 

Cc) Every floor, working place, and 

passageway shall be kept free from protruding 

nails, splinters, holes, or loose boards, as 

practicable. 

In addition to the change in the referenced standard 

allegedly violated, the cited condition or practice was modified to read as follows: 

The floor at lower level of the primary 

crusher work area was not maintained in a clean 

and dry condition. The hydraulic oil spillage 

and leakage at the hydraulic control center 

covered the floor area used as a passageway. 

Inspector Smiser confirmed that the modification was made 

by his supervisor Russell Smith because Mr. Smith made a determination that the hydraulic oil spill was not combustible as 

Mr. Smiser originally had believed. 

In its posthearing brief, the respondent argues that the 

amended citation is procedurally defective because MSHA failed 

to provide the respondent with an opportunity for a conference 

with its district manager after the modification of the citation, and that the inspector was not made available to the 

respondent for a post-inspection conference to discuss the 

amended citation. Although the citation was issued under the 

same number as the original citation, the respondent takes the 

position that it was in fact a new citation citing a new standard, and that it required a notification to the respondent of 

its right to ~ conference on the newly amended citation. 

1006 
The respondent concedes that it was af f~rded a conference 

with the district manager on the original Citation. However, 

it takes the position that to change a citation from a flammable liquid to a housekeeping violation because evidence submitted by the respondent during the conference proved the 

inspector wrong with respect to the question of the combustibility of the oil spillage is an abuse of MSHA's discretion. 

Citing the decision in Standard Slag Company, 2 FMSHRC 3312, 

3322-3323 (November 1980), and El Paso Rock Quarries, Inc., 

1 FMSHRC 35, 38 (~anuary 1981), the respondent asserts that 

MSHA has not always been allowed the discretion to modify citations once they are written. 

In the Standard Slag Company case, I rejected MSHA's 

attempts to amend its civil penalty proposal to alternatively 

charge an operator with a violation of a standard different 

from the one originally charged. The facts in that c~se 

reflect that MSHA's attempts to amend the citation came after 

the trial of the case after all of the evidence was in, and it 

took the form of a motion filed by MSHA as part of its posthearing arguments. In the El Paso Rock Quarries case, the 

Commission affirmed the trial ruling of a judge who denied 

MSHA's request at the opening of the hearing to amend a citation to reflect a change in t~e originally cited standard. 

The Commission held that "Granting or denying amendments is 

largely a discretionary matter with the judge," and it found 

no abuse of discretion, even though it may nave ruled differently as an initial matter. 

The facts in the instant case are clearly distinguishable 

from those in Standard Slag and El Paso Quarries. In the case 

at hand, the original citation was amended and modified prior 

to the filing of the case with the Commission. A copy of the 

modified citation was served on the respondent, and the respondent has had its day in court and has been given a full opportunity to present its defense. Further, there is no evidence 

in this case that the respondent ever requested a conference 

with MSHA on the newly amended citation. While it is true 

that 30 C.F.R. § 100.6, provides an opportunity to a mine operator to request a conference upon notice from MSHA, I note 

that the granting of such conferences is within MSHA's sole 

discretion. In any event, I find no basis for concluding that 

the respondent has been prejudiced by MSHA's failure to notify 

it of its right to a conference or because a conference was 

not held. The respondent has had a full opportunity to be 

heard on the merits of the alleged violation during the hearing on the contested citation, inclJding its right to confront 

and cross-examine the inspector, and to present its testimony 

1007 
and evidence in defense of the citation. Under the circumstances, the respondent's assertion that the contested modified citation was procedurally defectiv~ IS REJECTED. 

With regard to the merits of the citation, the respondent 

argues that the cited location was not a "passageway," and it 

cites the testimony of Inspector Smiser who indicated that 

once an employee goes into this area the only way out is the 

way he or she came in, and that it would be unlikely for 

employees in casual travel through the plant area to use this 

"passageway." Respondent also cites the testimony of 

Mr. Bales who indicated that the access to this area leads 

nowhere and there would be no need for people to walk this 

area during the course of their daily travel in the plant. 

For the reasons stated in my previous findings concerning 

Citation Nos. 2870013 and 2870016, the respondent's "passageway" arguments are rejected. The respondent has tacitly 

admitted that the cited location provided an access route to 

the crusher unit, and Inspector Smiser testified that service 

personnel were in the area periodically to check the hydraulic 

oil used for the crusher. Mr. Bales confirmed that people 

would be in the area to perform maintenance work, and that a 

lubrication pump in the area periodically presented known 

leakage problems which required a bucket to be kept under the 

pump to prevent leakage onto the walkway floor. Further, the 

placement of wooden planks and "soakum" material in the area 

in an effort to alleviate the leakage problems supports a 

reasonable conclusion that pe.csonnel had a need to be in the 

area to perform work. Under these circumstances, it seems 

clear to me that the cited location was not only a passageway 

providing access to the area, but was also a workplace area 

which was required to be kept clean. The respondent has not 

rebutted the existence of the oil spillage and leakage as 

described by the inspector, and the placement of planks, and 

the use of "soakum" and a bucket reasonably suggest that the 

spillage covering the cited area was more than "a film of oil" 

as suggested by Mr. Bales. Since the area was not kept clean 

and dry as required by the standard, I conclude and find that 

a violation has been established, and the citation IS AFFIRMED. 

Citation No. 2870742 - 30 C.F.R. § 56.6112 

The inspector issued this citation after finding that the 

burning rate of the safety fuse used at the quarry for biasting purposes was not measured, posted conspicuously, or 

brought to the attention of mine personnel engaged in blasting 

activities. He cited an alleged violation of mandatory safety 

standard section 56.6112, which provides as follows: 

1008 
The burning rate of the safety fuse in use at 

any time shall be measured, posted in conspicuous locations, and brought to the attention of 

all persons concerned with blasting. 

Inspector Smiser confirmed that he issued the citation 

because he believed that the posted fuse burning rate was outdated and at least 2 years old. However, he conceded that the 

cited standard does not include any dating requirements for 

determining the fuse burning rate, and the credible evidence 

produced by the respondent, including the inspector's own 

admissions, reflects that the respondent did in fact comply 

with the standard by measuring the burning rate of its fuses, 

posting the results in a conspicuous place, and bringing it to 

the attention of personnel engaged in blasting. Respondent's 

evidence also established that all certified blasters were 

instructed in the proper use and handling of explosives, and 

that all fuses were properly tested and the fuse burning rates 

posted as necessary. Under all of these circumstances, I 

agree with the respondent's posthearing arguments in defense 

of this citation, and I conclude and find that MSHA has 

advanced no probative credible evidence to support a violation. 

Accordingly, the citation IS 'i/ACA'rED. 

Citation No. 2870741 - 30 C.F.R. § 56.11012 

The inspector issued this citation after finding that an 

opening at the end of a travelway alongside an inclined conveyor located between the cement processing building and a 

clinker storage area was unguarded and had no barrier to prevent anyone from stepping or falling off the end into the 

clinker storage area below. Mr. Smiser further described the 

location of the unguarded area as the north side of the conveyor where it entered the enclosed building for a short distance around the conveyor head pulley. He cited a violation, 

of mandatory standard section 56.11012, which provides as 

follows: 

Openings above, below, or near travelways 

through which persons or materials may fall 

shall be protected by railings, barriers, or 

covers. Where it is impractical to install 

such protective devices, adequate warning 

signals shall be installed. 

Section 5.62 defines a "travelway" as "a passage, walk or 

way regularly used and designated for persons to go from one 

place to another." 

1009 
In its posthearing brief, the respondent asserts that 

Inspector Smiser's inaccurate testimony regarding the location 

of the unguarded conveyor location in question should render 

the citation null and void. This defense is rejected. 

Although the inspector's testimony may have been imprecise, it 

seems clear to me from the testimony of both Mr. Lloyd and 

Mr. McCormac that they were clearly aware of the cited location which the inspector had in mind when he issued the citation. During his video presentation, Mr. Lloyd described the 

cited location, and Mr. McCorrnac also pinpointed the area and 

confirmed that the inspector was concerned about the "opening 

at the end of the conveyor" where two chains were installed as 

a barrier, but not hooked up. When asked whether this was the 

location referred to in the citation, Mr. McCorrnac replied 

"yes sir" (Tr. 87). Inspector Smiser in turn confirmed that 

this was the area he cited (Tr. 88). Further, Mr. McCormac 

testified that he was with the inspector during his inspection, agreed that there was an opening beyond the location of 

the chain, and confirmed the cited condition did in fact exist 

(Tr. 95-97; 106). 

Respondent further argues that the cited location was not 

a "travelway" within the definition found in section 56.2, in 

that it was not regularly used as a means of access in the 

normal course of travel through the plant area, and was not 

used for normal maintenance purposes. Respondent's witness 

Lloyd characterized the cited location as a seldom used "platform" area providing access to a gate system used for freeing 

up any blocked material. When this is done, an employee would 

use a safety line or belt attached to the handrailing which 

was installed around the perimeter of the platform. Mr. Lloyd 

also confirmed that the area is not used for routine inspections or maintenance, and once reaching the end of the platform, one would have to turn around and go back. 

Mr. Lloyd confirmed that the platform was originally constructed a few years ago when there was an electrical problem, 

and that the chain was installed as a means of a safety 

barrier in the event one needed to stand on the platform with 

a pole to free up any material blockage. Mr. McCormac also 

saw a chain at the cited location, was surprised that it was 

not hooked up, and he surmised that the citation was issued 

because the chain was not hooked up. The inspector could not 

recall any chain in place, and he did not have his inspector's 

notes with him. Although he confirmed that the citation was 

abated after a barrier was installed, he did not elaborate 

further as to the type of barrier which was installed, and the 

1010 
termination. notice issued to abate the citation provides no 

further information in this regard. 

The video tape taken for demonstration purposes during 

the hearing clearly depicted the installation of two chains 

across the opening which concerned the inspector, and I find 

the testimony of Mr. McCormac and Mr. Lloyd with respect to 

the presence of the chains at the time of the inspection to be 

credible. I further find Mr. McCormac's conclusion that the 

inspector probably issued the citation because the chains were 

not up at the time of his inspection to also be credible. 

Since the chains were not up and stretched across the opening 

of the platform at the time of the inspection, one can reasonably conclude that no barrier was provided at that time as a 

means of protection to prevent one from going off the end of 

the platform. Assuming that the cited opening was near a 

travelway as stated in section 56.11012, and as that term is 

defined by section 5.62, I would affirm the citation based in 

the undisputed fact that the opening in question was not protected by the chain which was not in place across that opening. 

However, the critical question here is whether or not the 

cited location was in fact a "travelway." 

Inspector Smiser described the cited location as "small, 

with a little walking area," and he characterized it as an 

"open-ended travelway" and "open-ending walkway" (Tr. 23-24). 

He surmised that a serviceman would "probably" be in the area, 

and "guessed" that he would be within the "slipping area" and 

could fall through the opening in the course of any "normal 

work" performed in the area. He also surmised that a serviceman would "probably" be the one in this area for purposes of 

servicing the head conveyor head pulley and associated parts 

(Tr. 24-26). However, I find no credible evidence to support 

the inspector's conclusions that any work would be routinely 

performed at the cited location, and he apparently made no 

effort to contact any maintenance personnel to confirm that 

anyone was required to be in the area for the purposes of 

maintenance. As a matter of fact, he conceded that he based 

his "low negligence" finding on the fact that the respondent 

had not previously discovered the opening or that there was a 

problem in that area (Tr. 26). 

Inspector Smiser confirmed that with the exception of 

doing work in the cited area, which he clearly did not determine as a fact, it was unlikely that anyone would use the 

"walkway" in question as a means of getting from one point to 

another. He confirmed that anyone venturing into the area 

would have to turn around and come back once reaching the end, 

that it was possible that any foot traffic in the area was 

1011 
extremely infrequent, and that it was further possible that 

the reason the respondent did not discover the unprotected 

area could have been based on the fact that no work had been 

done in the area for weeks or months (Tr. 46). Although he 

later contradicted this testimony by stating that he would be 

surprised if there was no one there at least once a shift, I 

find no credible evidence to support this speculative 

conclusion. 

The facts presented with respect to this citation are 

strikingly similar to those presented in a prior case in which 

an inspector issued a citation for a violation of section 

57.11-12, which contained language identical to that found in 

section 56.11012. See: Secretary of Labor v. Magma Copper 

Company, 1 FMSHRC 837, 856-858 (July 1979). In that case the 

inspector issued a citation after finding that a chain guard 

which had been installed at the end of a work deck or platform 

was not hooked across the opening to prevent anyone from falling off the end. I vacated the citation after finding that 

the evidence did not establish that the infrequently travelled 

area in question was in fact a travelway within the meaning of 

the cited standard, or within he meaning of the definition of 

that term as found in section 57.2, which is identical to that 

found in section 56.2. In vacating the citation, I made the 

following observations at 1 FMSHRC 857-858: 

I believe the intent of the standard is to protect miners, who on a regular and frequent 

basis, use designated travelways for movement 

to and from their regular duty stations or who 

use such travelways on a regular basis while 

moving in and about the mine. The facts on 

which this citation was issued suggest the 

inspector sought to protect someone working on 

the platform from falling through the unchained 

opening. Even so, the standard cited does not 

lend itself to the factual setting which prevailed on the day the citation issued. The 

standard required railings, barriers, or covers, 

and I fail to understand how a hooked chain can 

be considered as such. In the circumstances, it 

would appear that the standard is intended to 

apply to a working place rather than to a travelway, notwithstanding petitioner's assertion at 

page 6 of its brief that the use of a chain 

establishes an inference that an opening some 

100 feet in the air at the edge of a platform is 

a travelway. 

1012 
* * * If the Secretary desires to afford protection to persons working on elevated platforms, 

he should promulgate a safety standard covering 

such situations rather than attempting to rely 

on a loosely worded and vague standard. It 

seems to me that the inclusion of the term 

"working place" as part of section 57.11-2 would 

cure the problem that I have with language which 

I believe simply does not fit the facts 

presented. 

In view of the foregoing, and on the facts presented in 

this case, I cannot conclude that the petitioner has established through any probative credible evidence that the cited 

location in question was near a travelway within the def inition of that term found in section 5.62. Accordingly, I find 

no basis for finding a violation, and the citation IS VACATED. 

The Significant and Substantial Violations Issue 

A "significant and substantial" violation is described 

in section 104(d)(l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly 

designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious 

nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 

825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in ~uestion will be of a reasonably serious 

nature. 

1013 
In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

we have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the language of section 104(d)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984): U.S. 

S"teel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988): Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

With regard to Citation No. 2870013, Inspector Smiser 

testified that while it was unlikely that someone walking along 

the conveyor walkway in question would fall off to the area 

below if he were to trip or stumble on the accumulated rock and 

material, the accumulations did present a tripping or falling 

hazard, and that it was reasonably likely that in the event of 

a fall, the individual could sustain a back injury or broken 

limbs. If it were a serviceman who regularly walked the area, 

he would more than likely be carrying a grease gun or other 

equipment in one hand, thus increasing the likely of an injury 

if he were to fall or trip on the accumulations of materials 

which ranged in size from three-quarters of an inch to an inch 

and a half, and which completely covered the walkway surface 

and ran over the kickplate. 

The respondent takes the position that the violation was 

not significant and substantial. In support of this conclusion, it relies on the testimony of Mr. Bales who indicated 

that any work being performed on the conveyor would only be 

done after the area was cleaned up, that no employees used the 

walkway as a regular of means of travel from one quarry location to another, that most of the conveyor rollers can be 

greased from hose fittings which hung down to ground level, 

1014 
and that in. the past 10 years there have been no reported accidents or injuries at the quarry. 

Mr. Bales confirmed that the conveyor operated 8 hours a 

day, 5 days a week, and that the walkway where the inspector 

found the accumulations of rock and materials allowed access 

to the conveyor for maintenance purposes. Although Mr. Bales 

indicated that most of the conveyor rollers were serviced from 

ground level, it was altogether possible that some were not, 

and the inspector determined that a serviceman inspecting the 

conveyor regularly travelled the walkway and would be exposed 

to a tripping or falling hazard. Under the circumstances, I 

agree with his finding that the cited violation was significant and substantial. Given the extent of the accumulations 

on the inclined conveyor walkway, and the fact that the conveyor would be operating all day, I believe that one may reasonably conclude that at least one person who would be 

travelling the walkway while inspecting the conveyor would be 

exposed to a tripping or slipping hazard, and if he were to 

trip or fall, it would be reasonably likely that he would 

suffer injuries of a reasonable serious nature. Accordingly, 

the inspector's "S&S" finding IS AFFIRMED. 

With regard to housekeeping Citation No. 2870015, concerning the fluid spill in the concrete floor area in the crusher 

plant, I take note of the fact that MSHA's district manager 

modified the citation because of his apparent conclusion that 

the fluid was not combustible. Under the circumstances, I 

conclude and find that the fluid did not present a fire hazard. 

Inspector Smiser was concerned over a probable slip and fall 

hazard to a serviceman who he believed would be in the area to 

check out the crusher unit. However, the evidence establishes 

that the respondent had installed wooden planks and used an 

absorbent material in efforts to control the spillage caused 

by a known problem, and that the floor area in question was 

surrounded by handrails. Although the citation stated that 

the spill was large enough to cover the floor area, there is 

no evidence that it covered the floor planks, and Inspector 

Smiser conceded that the respondent installed the planks and 

used the absorbent material in an effort to provide safe 

access to the cited area in question. Mr. Bales confirmed 

that the spill would never run over the wooden planks. Under 

all of these circumstances, I conclude and find that a slip or 

fall would be unlikely, and the inspector's "S&S" finding IS 

VACATED. 

With regard to Citation No. 2870016, Inspector Smiser 

testified that the existence of steel plates, stac~ed on top 

of each other in a "tipping" manner, and located at the top of 

1015 
a staircase leading to a walkway, obstructed access to the 

area in that one had to step on the plates to proceed along 

the walkway. He also found wood and other materials such as 

lubricant cans on the walkway, and he concluded that all of 

these materials posed a slipping and falling hazard to a 

serviceman who would likely be using the walkway to gain 

access to the equipment at least once a shift. The inspector 

concluded that it was reasonably likely that injuries of a 

reasonable serious nature would result in the event someone 

slipped or fell while stepping over the accumulated materials 

in question. The respondent has advanced no credible evidence 

to rebut the inspector's findings, and I agree with his conclusion that the violation was significant and substantial. 

Accordingly, his "S&S" finding IS AFFIRMED. 

Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business 

Based on the stipulations by the parties, I conclude that 

the respondent, as a corporate operator, is a large mine operator, and that the mine in question was medium in size and 

scope. The parties stipulated that the payment of civil penalties for the violations in question will not adversely 

affect the respondent's ability to continue in business. 

History of Prior Violations 

The parties stipulated that the respondent's history of 

prior violations consists of 10 citations issued over 40 

inspection days during the 24-month period preceding the 

inspection conducted by Inspector Smiser. I conclude and find 

that the respondent has a relatively good compliance record 

which does not warrant any additional increases in the civil 

penalties which have been assessed by me for the violations 

which have been affirmed. 

Good Faith Compliance 

I conclude and find that the respondent exercised good 

faith in timely abating all of the violations which have been 

affirmed in this proceeding. 

Negligence 

I conclude and find that all of the violations which 

have been affirmed resulted from the respondent's failure to 

exercise reasonable care, and that they all resulted from 

ordinary negligence on the respondent's part. 

1016 
Gravity 

I conclude and find that Citation No. 2870015 concerning 

the fluid spillage on the floor of the crusher plant was 

non-serious. For the reasons stated in my "S&S" findings, I 

further conclude and find that Citation Nos. 2870013 and 

2870016, concerning slip and fall hazards, were serious 

violations. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llOCi) of 

the Act, I conclude that the following civil penalty assessments are reasonable and appropriate for the violations which 

have been affirmed: 

Citation No. 

2870013 

2870015 

2870016 

Date 

03/24/87 

03/24/87 

03/24/87 

30 C.F.R. Section 

56.20003(a) 

56.20003 

56.20003Ca) 

ORDER 

Assessment 

$ 91 

$ 35 

$ 79 

The respondent IS ORDERED to pay the civil penalty assessments in question to MSHA within thirty (30) days of the date 

of this decision, and upon receipt of payment, this proceeding 

is dismissed. 

Citation No. 2870742, March 24, 1987, citing a violation 

of 30 C.F.R. § 56.6112, and Citation No. 2870741, March 25, 

1987, citing a violation of 30 C.F.R. § 56.11012, ARE VACATED. 

b.K~~ Administrative Law Judge 

1017 
Distribution: 

Michael Olvera, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Robert McCormac, Industrial Relations Manager, Blue Circle 

Inc., 2609 North 145th East Avenue, Tulsa, OK 74116 (Certified 

Mail) 

/fb 

1018 
., 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 9 1988 

GERARD SAPUNARICH, DISCRIMINATION PROCEEDING 

Complainant 

v. 

LEHIGH PORTLAND CEMENT, CO., 

Respondent 

. . 

. . Docket No. YORK 88-29-n~ 

MD 87-56 

Cementon Plant and Quarry 

DECISION 

Before: Judge Melick 

This case is before me upon the Complaint by Gerard 

Sapunarich under section 105(c)(3) of the Federal Mine Sa~ety 

and Health Act of 1977, 30 u.s.c. § 801 et seg., the "Act," 

alleging that he was suspended from his job without pay by 

Lehigh Portland Cement, Co., (Lehigh) in violation of section 

lOSCc)(l) of the Act.~/ 

1/ Section 105(c)(l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to 

this Act because such miner, representative of 

miners or applicant for employment, has filed or 

made a complaint under or related to this Act, 

including a complaint notifyi11g the operator or the 

operator's agent, or the representative of the 

miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or 

other mine or because such miner, representative of 

miners or applicant for employment is the subject 

of medical evaluations and potential transfer under 

a standard published pursuant to section 101 or 

because such representative of miners or applicant 

for employment has instituted or caused to be 

instituted any proceedings under or related to this 

Act or has testified or.is about to testify in any 

such proceeding, or because of the exercise by such 

miner, representative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this Act. 

1019 
In particular Mr. Sapunarich alleges that he was the 

Miner Safety Representative during relevant times and that in 

that capacity reported various health and safety violations 

from February 3, 1983, through September 11, 1987, to both 

officials of the Federal Mine Safety and Health 

Administration CMSHA) and of the mine operator. He alleges 

in his initial complaint that "on Friday, September 11, 1987, 

John Jones [plant manager] and I had a very heated discussion 

in the Control Room about the dust problem in the dust 

building that was still going on from the previous day. As a 

result I have been written up for insubordination and it was 

put in my file, also I have been suspended without pay. 11 

In a combined Answer and Motion for Summary Decision 

Lehigh maintained as follows: 

••• Mr. Sapunarich's suspension was in no way 

motivated by his complaints about the dust 

situation. The action was taken in response to the 

threats and use of abusive language by 

Mr. Sapunarich. 

The situation about which Mr. Sapunarich was 

complaining on the morning of September 10, 1987, 

was already being addressed by the Company at the 

time the complaint was made. The action which Mr. 

Sapunarich "threatened" - D.E.C. - had already 

been taken by the Company. Clearly, there was no 

reason to discipline Mr. Sapunarich for proposing 

to take action which the Company had already taken. 

The disciplinary action was directed at the 

threatening and abusive language used by 

Mr. Sapunarich. Such threats and abusive language 

are not protected activity. Thus, the action was 

lawful and non-discriminatory. 

Under Commission Rule 64, 29 C.F.R. § 2700.64, a Motion 

for Summary Decision shall be granted only if the entire 

record, including the pleadings, depositions, answers to 

interrogatories, admissions and affidavits shows: Cl> that 

there is no genuine issue as to any material facts; and (2) 

that the moving party is entitled to swnmary decision as a 

matter of law. 

1020 
In establishing a prima facie case of discrimination 

under section lOS(c)(l) of the Act the complainant must prove 

that (1) he engaged in a protected activity, and (2) the 

adverse action complained of was motivated in any part by 

that· activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800, (1980), 

rev'd on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18, 

(1981). The operator may rebut the prima facie case by 

showing either that no protected activity occurred _or that 

the adverse action was not motivated in any part by protected 

activity. If an operator cannot rebut the prima facie case 

in this manner, it nevertheless may defend affirmatively by 

proving that Cl) it was also motivated by the miner's 

unprotected activities, and (2) it would have taken the 

adverse action in any event for the unprotected activities 

alone. The operator bears the burden of proof with regard to 

the affirmative defense. Haro v. Magma Copper Co., 4 FMSHRC 

1935, 1936-38, (1982). 

In support of its Motion for Summary Decision, Lehigh 

asserts that the alleged disciplinary action taken against 

Mr. Sapunarich was motivated solely by his non-protected 

activities. Mr. Sapunarich, on the other hand, maintains 

that the alleged disciplinary action was indeed motivated by 

his protected activities. There clearly remains then a 

genuine issue concerning a material fact in this case (i.e. 

the motivation for the alleged disciplinary action) and, 

accordingly, the Motion for Summary Decision cannot be 

granted. 29 C.F.R. § 2700.64. 

ORDER 

The Motion for Summary Decision filed by Lehigh Portland 

Cement Company is denied. The hearings scheduled in this 

case to commence on August 31, 1988, will accordingly proceed 

as scheduled. The parties are advised that these hearings 

are de novo and that any evidence to be considered by the 

undersigned, both testimonial and docume tary, must be 

proffered during those proceedin s. 

1021 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 121988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

on behalf of 

ELLIOTT ROWE, JR., 

AGNEL AMBURGEY', 

EVERETT WATKINS, 

EDSEL BAKER, 

CALVIN BAKER, 

Complainants 

v. 

JOHNSON COAL COMPANY, 

INCORPORATED, 

Respondent 

DISCRIMINATION PROCEEDINGS 

Docket No. KENT 88-57-D 

BARB CD 87-46 

Docket No. KENT 88-58-D 

BARB CD 87-47 

Docket No. KENT 88-59-D 

BARB CD 87-48 

Docket No. KENT 88-60-D 

BARB CD 87-50 

Docket No. KENT 88-61-D 

BARB CD 87-49 

No. 11 Mine 

ORDER OF DISMISSAL 

Appearances: Michael L. Roden, Esq., Office of the 

Solicitor, U.S. Department of Labor for 

Complainants; 

Paul R. Collins, Esq., Nancy M. Collins, Esq., 

Hollon, Hollon, Hollon, Hazard, Kentucky; 

Tony Oppegard, Esq., Appalachian Research and 

Defense Fund of Kentucky, Hazard, Kentucky, 

Intervenor. 

Before: Judge Melick 

The Complainants herein have, in substance, requested 

approval to withdraw their respective complaints in the 

captioned cases for the reason that they have reached agreed 

settlements. Under the circumstances h ein, permission to 

withdraw is granted. 29 C.F.R. § 2700. These 

therefore dismissed. 

i) 

I 

t 

I 

G~ry 

Admin 

(703) 

1022 
Distribution: 

Michael L. Roden, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

Paul R. Collins, Esq., Nancy M. Collins, Esq., Hollon, 

Hollon, & Hollan, P.O. Drawer 779, Hazard, KY 41701 

(Certified Mail) 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky, P.O. Box 360, Hazard, KY 41701 (Certified Mail) 

nt 

1023 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

JOSEPH STORA, - Complainant 

v. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 161988 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 88-96-D 

MORG CD 88-4 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Raccoon No. 3 Mine 

DECISION 

Before: Judge Maurer 

On October 27, 1987, the Complainant, Joseph Stora, filed a 

complaint of discrimination under section 105(c) of the Federal 

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

(hereinafter referred to as the "Act") with the Secretary of 

Labor, Mine Safety and Health Administration (MSHA) against the 

Southern Ohio Coal Company (SOCCO). That complaint was denied 

by MSHA and Mr. Stora thereafter filed a complaint of 

discrimination with the Commission on his own behalf under 

section 105 (c)(3) of the Act. Mr. Stora alleges that he was 

discriminated against in violation of section 105(c) of the Act 

because he was discharged on August 28, 1987, by SOCCO for 

proceeding under unsupported top while other persons are known 

by management to go out under unsupported top and are not 

discharged. He goes on to state that the other reason he was 

given for his discharge was a "continuous pattern of 

unsatisfactory work." He admits proceeding under the unsupported 

roof on the cited occasion but denies the "continuous pattern of 

unsatisfactory work." 

SOCCO, by counsel, has moved to dismiss the subject 

complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil 

Procedure for failure to state a claim upon which relief can be 

granted under section 105(c) of the Act. On June 22, 1988, an 

ORDER TO SHOW CAUSE was issued by the undersigned wherein the 

Complainant was ordered to show cause within fifteen (15) days as 

to why this proceeding should not be dismissed for "failure to 

state a claim for which ~elief can be granted under section 

105(c)(l) of the Act." There has been no response received to 

date. 

For the purposes of ruling on SOCCO's motion to dismiss, 

the well pleaded material allegations of the complaint are taken 

as admitted. 2A Moore's Federal Practice ~12.08. A complaint 

should not be dismissed for insufficiency unless it appears to a 

certainty that the complainant is entitled to no relief under any 

1024 
state of facts.which could be proved in support of a claim. 

Pleadings are, moreover, to be liberally construed and mere 

vagueness or lack of detail is not grounds for a motion to 

dismiss. Id. 

Section 105(c)(l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, 

representative of miners or applicant for employment 

in any coal or other mine subject to this Act 

because such miner, representative of miners or 

applicant for employment has filed or made a 

complaint under or related to this Act, including 

a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety 

or health violation in a coal or other mine or 

because such miner, representative of miners or 

applicant for employment is the subject of medical 

evaluations and potential transfer under a standard 

published pursuant to section 101 or because such 

representative of miners or applicant for employment 

has instituted or caused to be instituted any proceedings under or related to this Act or has testified 

or is about to testify in any such proceeding, or because 

of the exercise by such miner, representative 

of miners or applicant for employment on behalf of 

himself or others of any statutory right afforded 

by this Act. 

In order to establish a prima facie violation of 

section 105(c)(l) the Complainant must prove that he engaged 

in an activity protected by that section and that his 

discharge was motivated in any part by that protected 

activity. Secretary ex. rel. David Pasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980) rev'd on other grounds, 

sub nom, Consolidation Coal Company v. Secretary, 633 F 2d. 

1211C3rd Cir. 1981). In this case, Mr. Stora asserts that he was 

discharged for going beyond supported top while other persons are 

known by management to have engaged in similar unsupported top 

infractions and were not discharged. Assuming that this 

allegation is true, it is clearly not sufficient to create a 

claim under section 105(c)(l) of the Act. That sectiou does not 

provide a remedy for what the Complainant perceives to be 

"discrimination" but what is in reality, at best, unfairness or 

inequitable treatment; if that conduct on the part of the 

operator was not caused in any part by an activity protected by 

the Act. Violating the federal mining regulations is not 

activity protected by the Act. Tharefore, I find that the 

complaint herein fails to state a claim for which relief can be 

1025 
granted under section lOSCc>Cl) of the Act, and this case is 

therefore dismissed. 

Distribution: 

Mr. Joseph Stora, 271 Highway 7, Powhatan Pt., OH 43942 

(Certified Mail) 

David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 South 

High Street, Columbus, OH 43215 (Certified Mail) 

kg 

-

1026 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 171988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RIVER CEMENT COMPANY, 

Respondent 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 88-4-M 

A.C. No. 23-00188-05524 

Docket No. CENT 88-5-M 

A.C. No. 23-00188-05525 

Docket No. CENT 88-6-M 

A.C. No. 23-00188-05526 

Selma Plant Quarry and Mill 

DECISION 

Appearances: Tobias B. Fritz, Esq., U.S. Department of Labor, 

Office of the Solicitor, Kansas City, Missouri, 

for the Petitioner~ Bradley s. Hiles, Esq., and, 

JoAnne Levy Saboeiro, Esq., Peper, Martin, Jensen, 

Maichel and Hetlage, St. Louis, Missouri, for the 

Respondent 

Before: Judge Maurer 

STATEMENT OF THE CASE 

These civil penalty proceedings concern proposals for 

assessment of civil penalties filed by the petitioner against the 

respondent pursuant to section llOCa> of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 820(a). The petitioner 

initially sought civil penalty assessments for five alleged 

violations of certain mandatory safety standards found in Part 56 

of Title 30, Code of Federal Regulations. 

Pursuant to notice, the cases were heard in St. Louis, 

Missouri on March 29, 1988. At the beginning of that hearing, I 

approved the vacation by the petitioner of Citation No. 2870962 

and the settlement without reduction in penalty of Citation No. 

2870467. That left one§ 104(a) citation remaining in each of 

the three above-styled cases to be heard and decided. The 

parties filed post-hearing arguments and proposed findings which 

I have considered in the course of making and writing this 

decision. 

1027 
STIPULATIONS 

The parties stipulated to the following: 

1. Respondent is subject to the Federal Mine Safety and 

Health Act of 1977. 

2. Respondent operates the Selma Plant Quarry and Mill, 

where 347,550 hours were worked during calendar year 1986. 

3. Respondent has paid 14 violations in 99 inspection days 

in the 24-month period preceeding February 1987. 

4. Respondent would not be adversely affected by the 

payment of the proposed civil penalties. 

ISSUES 

The primary issues presented are: (1) whether the conditions 

or practices cited constitute violations of the cited mandatory 

standards, and (2) the appropriate civil penalties to be assessed 

for the violations, should any be found, taking into account the 

statutory civil penalty criteria found in section llOCi) of the 

Act. 

DISCUSSION WITH FINDINGS 

I. DOCKET NO. CENT 88-4-M 

Section 104{a) Citation No. 2870494, which is the subject of 

this proceeding, was issued by an MSHA inspector on February 26, 

1987. The citation alleges a violation of the mandatory safety 

standard found at 30 C.F.R. § 56.9087 and the condition or 

practice alleged by the inspector to be a violation of that 

standard states as follows: 

The Bobcat FEL *1187 was not equipped with a reverse 

signal alarm. This loader has restricted view to the 

rear and operates in the entire mill area. The vehicle 

was not being used on this shift. 

30 C.F.R. § 56.9087 provides in its entirety as follows: 

Heavy duty mobile equipment shall be provided with 

audible warning devices. When the operator of such 

equipment has an obstructed view to the rear, the 

equipment shall have either an aucomatic reverse signal 

alarm which is audible above the surrounding noise 

level or an observe.c to signal when it is safe to back 

up. 

1028 
Respondent admitted that the front end loader, nwnber 1187, 

was not equipped with an operational automatic reverse signal 

alarm on February 26, 1987, and that the equipment was available 

for use by its employees on that date. 

At the conclusion of the Secretary's case, I granted 

respondent's motion to vacate the citation and dismiss the case 

based on the fact that the Secretary had not proffered any 

evidence that the Bobcat was operated in violation of the cited 

standard on February 26, 1987, or indeed any other prior date 

certain. 

Since the citation did not specifically allege any other 

prior date, I found the relevant date to be February 26, 1987, as 

that was the date contained in Section I-Violation Data on 

Petitioner's Exhibit No. 1, which is Citation No. 2870494. 

Therefore, I held that the Secretary must prove that the 

violations occurred on that date, which she could not do. In 

fact, at the close of the Secretary's case concerning this 

citation, it became evident that she could not prove that a 

violation of the cited standard occurred on any particular day, 

before, on or even after February 26, 1987. 

The cited standard gives the operator the option to operate 

the equipment without an automatic reverse signal alarm if they 

utilize an observer to signal when it is safe to back up. When 

Inspector Ryan testified he was asked what the basis was for his 

belief that the operator had used this equipment without an 

observer. He replied "[a]t this time, sir, the best thing I can 

tell you would be instinct." 

The Secretary's next witness, Mr. Wagner, who is a former 

employee of the respondent, did better than that, but he too was 

unable to identify any specific instance or date when he operated 

the Bobcat in violation of the cited standard although he 

testified that he had done so many times. 

The Secretary argues that at unspecified occasions and times 

prior to the date of the citation, the respondent violated the 

cited standard because they had a general policy of not providing 

an observer while operating the Bobcat in reverse. This argument 

overlooks the fact that this particular standard does not speak 

to company policy, but rather requires evidence of discrete 

violations of its terms, including the alternative method of 

compliance. 

I have again searched the record herein and am unable to 

locate any specific evidence of a date, time and place when the 

respondent was in noncompliance with the standard and I find that 

1029 
in order to have made a prima facie case of a violation the 

Secretary must have produced some evidence that the respondent 

was operating this equipment without a reverse signal alarm or an 

observer at some definite time or at least some date certain. To 

hold otherwise would force the respondent to prove the negative, 

i.e., that it did not operate the equipment in violation of the 

standard on any day since it was first acquired, which was years 

before the citation was written. Therefore, I conclude that 

Citation No. 2870494 was properly vacated at the close of the 

petitioner's evidence pursuant to the Federal Rules of Civil 

Procedure (F.R~C.P. 4l(b)). 

II. DOCKET NO. CENT 88-5-M 

Section 104.(a) Citation No. 2870470, which is the subject of 

this proceeding, was issued on February 25, 1987. The citation 

alleges a violation of the mandatory standard found at 30 C.F.R. 

§ 56.16003 and the condition or practice alleged by the inspector 

to be a violation of that standard states as follows: 

A 55 gallon barrel of tannergas was stored alongside 

the maintenance shop. 

30 C.F.R. § 56.16003 provides in its entirety as follows: 

Materials that can create hazards if accidentally 

liberated from their containers shall be stored in a 

manner that minimizes the dangers. 

Inspector Wilson issued the subject citation because he 

observed a barrel of tannergas 1/ stored outside the respondent's 

maintenance shop and was concerned that there could be an 

explosion if fumes got into the shop should there be any 

accidental liberation of the substance and ignition from welding 

or grinding sparks occurred. He testified that the substance 

could be accidentally liberated by a vehicle running into it and 

rupturing the drum, or if it was knocked off the rack, its valve 

could rupture. He further testified that employees periodically 

filling other containers with the tannergas could have incidental 

spillage occur. 

During cross-examination, however, the inspector was 

obviously not very conversant with the particulars of why this 

particular storage was hazardous, if it was. He readily admitted 

that at the time of his inspectiori, he did not know what 

tannergas was, did not physically inspect it, did not know its 

l/ Tannergas is a flammable liquid antifreeze used in 

compressed air lines. 

1030 
evaporation rate or indeed even if it existed in vaporous form. 

Furthermore, he opined that of all the ways he could possibly 

think of for the tannergas to have been accidentally liberated in 

its original location all were probably unlikely to occur. 

To rebut what nominally could be considered a prima facie 

case for a violation of the cited standard, the respondent called 

Mr. John Jurgiel, a certified industrial hygienist, as an expert 

witness. Mr. Jurgiel agreed with the inspector that based on his 

observations of the area where the tannergas was stored at the 

time the citation was written, accidental liberation of the 

tannergas was unlikely. He further testified that in his 

opinion even if a spill occurred outside the shop it was almost 

impossible for the tannergas vapors to enter the maintenance 

shop, travel the 75 feet to the welding area, and concentrate at 

the lower explosive limit of six percent, meaning that the 

tannergas vapor must comprise six percent by volume of the air to 

be explosive. Mr. Jurgiel therefore concluded that the storage 

of the tannergas drum outside the maintenance shop was a "no 

hazard" situation, presenting no likelihood of danger to the 

health or safety of the employees. 

Interestingly, the inspector required and approved an 

abatement site for the storage of the tannergas which is contrary 

to the instructions on the material safety data sheet (MSDS) for 

tannergas. The data sheet specifically states "do not store in 

open sunlight." For this reason, Mr. Jurgiel believes that the 

original, cited location was better than the abatement site where 

the tannergas is now located in the sun, notwithstanding the 

contrary warning on the MSDS. 

I conclude that the preponderance of reliable, probative 

evidence in the record does not establish that the tannergas was 

stored in an unsafe manner and to the contrary I find that it was 

stored in a manner that minimized the danger of explosion, at 

least in comparison to its present, approved location. 

Therefore, it follows that I find no violation of the cited 

mandatory standard. 

III. DOCKET NO. CENT 88-6-M 

Section 104(a) Citation No. 2870466, which is the subject of 

this proceeding, was issued on February 24, 1987. The citation 

alleges a violation of the mandatory standard found at 30 C.F.R. 

§ 56.14045 and the condition or practice alleged by the inspector 

to be a violation of that standard states as follows: 

Welding operations in the shop were not ventilated. 

30 C.F.R. § 56.14045 provides in its entirety as follows: 

1031 
Welding operations shall be shielded and well 

ventilated. 

Inspector Wilson personally observed a welding operation in 

the respondent's shop on February 24, 1987. He testified he 

observed a welder "hard surf acing" a piece of equipment and the 

smoke coming off that welding rod was spreading throughout the 

shop area. To the best of his recollection, there was no air 

movement in the shop at the time this "hard surf ace" welding was 

taking place. This condition most likely existed at that time 

because all the doors in the maintenance shop were closed and the 

ventilation fans were not operating. Subsequent testimony 

established that it was company policy on cold days to operate 

the ventilation system only intermittently. If someone noticed 

welding fumes building up, they would turn on the fans and open 

the doors, which was apparently sufficient to dissipate the smoke 

and fumes. 

This violation, however, is not about the sufficiency of the 

ventilation system, which everyone agrees was not even in use at 

the time. Rather, the violation was completed if the inspector 

observed even a single discrete welding operation which was not 

well ventilated. The uncontradicted evidence is that he in fact 

did personally observe such an operation and I find that evidence 

to be credible, and entirely consistent with the fact that the 

ventilation fans were not in operation and all the doors were 

closed. Not an unlikely configuration in February in Missouri, 

but nonetheless one that caused a violative accumulation of smoke 

and fumes. Therefore, I find that a violation of 30 C.F.R. 

§ 56.14045 has been established, as alleged. 

A "significant and substantial" violation is described in 

section 104{d){l) of the Act as a violation "of such nature as 

could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." A 

violation is properly designated significant and substantial "if, 

based upon the particular facts surrounding the violation there 

exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious 

nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission 

explained its interpretation of the term "significant and 

substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

1032 
Labor must· prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to 

safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula 'requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury.' U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d)(l), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1573, 1574-75 (July 1984). 

The hazard involved in this particular violation is the 

accumulation of unhealthful concentrations of fumes and/or smoke. 

The inspector did not have any specific information concerning 

actual exposure levels in the shop since he did not collect any 

air samples from the respondent's shop. The Secretary also put 

on evidence from a health specialist with some knowledge of 

welding that chromium, manganese and iron oxide fumes are almost 

always present when you have hard surf ace welding going on. He 

further testified that beyond some ceiling value (the TLV), these 

materials can be harmful. However, he had not analyzed any air 

samples pertaining to welding fume concentrations in the 

respondent's shop, but rather was testifying in a general manner 

about hard surf ace welding and overexposure to hazardous 

materials. 

Once again, Mr. Jurgiel, an inaustrial hygienist hired by 

the respondent, went the extra mile. He collected several air 

samples in the shop under conditions simulating the welding 

observed by Inspector wilson. More specifically, he arranged to 

have an employee hard surface weld continuously for one hour with 

the maintenance shoo doors closed and the vantilation fans off. 

These air samples w~re than turned over to an accredited 

industrial laboratory where chenical analysis showed the exposure 

to the potentially hazardous components of the welding rods to be 

substantially below the threshold limit values (the TLVs) for 

those elements. Mr. Jurgiel therefoce concluded, with some 

10 33 
scientific .basis, that there was no health hazard posed for the 

welder or other persons in the shop, at the concentrations of 

smoke and fumes observed by Inspector Wilson. 

I find the results of Mr. Jurgiel's air sampling tests and 

the subsequent chemical analysis of the air filters by an atomic 

absorption spectrophotometer to be credible and therefore 

conclude that the violation was not "significant and substantial" 

and will affirm the citation on that basis. 

CIVIL PENALTY ASSESSMENT 

In assessing a civil penalty herein, I find and conclude 

that this violation resulted from moderate negligence as marked 

on Petitioner's Exhibit No. 8 and that any injury or illness 

resulting from this violation was unlikely. I have also 

considered all the foregoing findings and conclusions made in the 

course of this decision and the requirements of section llOCi) of 

the Act. Under these circumstances, I find that a civil penalty 

of $50 is appropriate in this case. 

ORDER 

1. Citation No. 2870962 is vacated. 

2. Citation No. 2870467 is affirmed and a penalty of $20 is 

assessed. 

3. Citation No. 2870494 is vacated. 

4. Citation No. 2870470 is vacated. 

5. Citation No. 2870466 is affirmed as a "non-S&S" citation 

and a penalty of $50 is assessed. 

6. Respondent is-ordered to pay to the Secretary the sum of 

$70 within 30 days of the date of this decis.ion. 

dtawvJ 

urer 

rative Law Judge 

Distribution: 

Tobias B. Fritz, Esq., U.S. Department of Labor, Office of the 

Solicitor, 911 Walnut Street, Suite 2106, Kansas City, MO 64106 

(Certified Mail) 

Bradley s. Hiles, Esq., JoAnne Levy Saboeiro, Esq., Peper, 

Martin, Jensen, Maichel and Hetlage, 24th Floor, 720 Olive 

Street, St. Louis, MO 63101 (Certified Mail) 

slk 

1034 
' ., FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 171988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. LAKE 88-4-M 

: A.C. No. 11-02780-05506 

v. 

OZARK-MAHONING COMPANY, 

Respondent 

Docket No. LAKE 87-85-M 

A.C. No. 11-02780-05504 

Appearances: 

Before: 

Annabel Lee Mine 

Docket No. LAKE 88-22-M 

A.C. No. 11-02667-05505 

Denton Mine 

DECISIONS 

Miguel·J. ,Carmona, Esq., Office of the 

Solicitor, u.s. Department of Labor, Chicago, 

Illinois, for the Petitioner; 

Thomas M. Dowling, Safety and Industrial . 

Relations Manager, and Vic A. Evans, General 

Manager, Ozark-Mahoning Company, Rosiclare, 

Illinois, for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern 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 for 

eight alleged violations of MSHA's mandatory noise standards 

found in Part 57, and the injury reporting standards found in 

Part 50, Title 30, Code of Federal Regulations. 

The respondent contested the citations and proposed civil 

penalty assessments, and pursuant to notice served on the 

parties, hearings were held .in Evansville, Indiana. The 

parties filed posthearing briefs, and I have considered the 

1035 
arguments made therein in the course of my adjudication of 

these cases. 

Issues 

The issues presented in these proceedings are as follows: 

. 1. Whether the respondent violated the 

cited mandatory safety standards, and if so, 

the appropriate civil penalties to be assessed 

for the violations based on the criteria found 

in section llOCi) of the Act. 

2. Whether the inspector's "significant 

and substantial" CS&S) finding concerning one 

noise citation violation is supportable. 

3. Additional issues raised by the 

parties in this proceeding are identified and 

disposed of in the course of these decisions. 

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 110(.i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.l et seq. 

Stipulations 

The parties stipulated to the following (Exhibit P-R-1): 

1. Ozark-Mahoning Company, a Delaware 

Corporation, is the owner and operator of the 

Denton and Annabel Lee Mines located in the 

state of Illinois and the county of Hardin. 

2. The mines operated by Ozark-Mahoning 

Company are subject to the Federal Mine Safety 

and Health Act of 1977 as it relates to 

30 C.F.R. Part 57 for metal and nonmetal mining 

and milling operations. 

3. The Denton Mine is classified under 

the Act as a smalL mine having accumulated a 

1036 
total of 35,136 work hours in the preceding 

calendar year. 

4. The Annabel Lee Mine is classified 

under the Act as a small mine having accumulated a total of 53,131 work hours in the 

preceding calendar year. 

5. On May 27, 1987 at 2:00 p.m., MSHA 

Inspector Jerry Spruell issued Citation 

No. 2865780 to Ozark-Mahoning for an alleged 

violation of 30 C.F.R. § 50.20. 

6. On May 27, 1987 at or near 3:00 p.m., 

MSHA Inspector James Bagley issued Citation 

Nos. 2865757, 2865758 and 2863759 for alleged 

violations of 30 C.F.R. § 57.5050(b). 

7. On May 27, 1987, MSHA Inspector Jerry 

Spruell issued Citation Nos. 2865785, 3059584 

and 3059585 for alleged violations of 30 C.F.R. 

§ 57.5050(b). Citation No. 2865785 was issued 

for an alleged violation of 30 C.F.R. § 57.5050. 

8. Pursuant to the provisions of section 

llO(a) of the Federal Mine Safety and Health 

Act Ozark-Mahon1ng.Company posted Notices of 

Contest and requested hearings in the matter of 

alleged violations of 30 C.F.R. § 50.20 and 

30 C.F.R. § 57.5050(b) as issued by Citation 

Nos. 2865780, 2865757, 2865758, 2863759, 

2865785, 3059584 and 3059585. 

9. During the preceding year 

Ozark-Mahoning Company's Mining Division 

accumulated a total of 238,015 hours worked for 

all its reportable locations covered under the 

Mine Safety and Health Act of 1977 as it 

relates to 30 C.F.R. Part 57 for metal and 

nonmetal mining and milling operations. 

10. Payments as originally proposed for 

the alleged violations in this matter will not 

adversely affect the operator's ability to 

remain in business. 

1037 
Discussion 

The citations in issue in these proceedings are as· 

follows: 

Docket No. LAKE 88-4-M 

Section 104(a) non-"S&S" Citation No. 2865757, May 28, 

1987, cites a violation of 30 C.F.R. § 57.5050(b), and the 

condition or practice is stated as follows (Exhibit P-6): 

The full shift exposure to mixed noise 

levels of the No. 1 Haulage Truck operator 

exceeded unity (100%) by 4.25 Times (425%) as 

measured with a dosimeter. This is equivalent 

to an 8-hour exposure to 100.3 dBA. Personal 

hearing protection was being worn. Feasible 

engineering controls were not being used to 

reduce the noise exposure to permissible units. 

Section 104(a) non-"S&S" Citation No. 2865758, May 28, 

1987, cites a violation of 30 C.F.R. § 57.5050(b), and the 

condition or practice is stated as follows (Exhibit P-7): 

The full shift exposure to mixed noise 

levels of the No. 2 Haulage Truck operator 

exceeded unity·(l0P%> by 3.65 times (365%) as 

measured with a dosimeter. This is equivalent 

to an 8-hour exposure to 99.3 dBA. Personal 

hearing protection was being worn. Feasible 

engineering controls were not being used to 

reduce the noise exposure to permissible units. 

Section 104(a) non-"S&S" Citation No. 2865759, May 28, 

1987, cites a violation of 30 C.F.R. § 57.5050(b), and the 

condition or practice is stated as follows (Exhibit P-8): 

The full shift exposure to mixed noise 

levels of the Front-end Loader, operating in 

the south end of the mine (Miller's Ridge), 

exceeded unity (100%) by 2.96 (296%) as 

measured with a dosimeter. This is equivalent 

to an 8-hour exposure to 97.7 dBA. Personal 

hearing protection was being worn. Feasible 

engineering controls were not being used to 

reduce the noise exposure to permissible units. 

1038 
Section 104Ca> "S&S" Citation No. 2865785, May 28, 1987, 

cites a violation of 30 C.F.R. § 57.5050, and the condition or 

practice is stated as follows (Exhibit P-5): 

The full shift exposure to mixed noise 

levels of the jumbo drill operator exceeded 

····unity (100%) by 18.67 times (1867%) as measured 

with a dosimeter. This is equivalent to an 

8-hour exposure io 111 dBA. Personal hearing 

protection was being worn. This drill operator 

was exposed to continuous noise, when both 

drills were being used, at 118 dBA level, 

measured at the operator's ear with a sound 

level meter, on this date. The left drill was 

not nullified and the right drill exhausted 

toward the operator. 

The respondent asserted that it has previously paid the 

civil penalty assessment of $20 for section 104(a) non-"S&S" 

Citation No. 2865784, issued on May 28, 1987, for a violation 

of 30 C.F.R. § 57.5050, and no longer wishes to contest this 

citation. Petitioner's counsel agreed that this was the case 

(Tr. 143-147). 

Docket No. LAKE 88-22-M 

Section 104(a) non-"S&S" Citation No. 3059584, issued on 

June 17, 1987, cites a violation of 30 C.F.R. § 57.5050Cb), 

and the condition or practice states as follows (Exhibit P-9): 

The full shift exposure to mixed noise 

levels of the Wagner 2B loader operator working 

underground exceeded unity (100%) by 1.583 

times (158.3%) as measured with a dosimeter. 

Personal hearing protection was being worn. 

This exposure is equivalent to an 8-hour ~ 

exposure to 93 dBA. 

Section 104(a) non-"S&S" Citation No. 3059585, issued on 

June 17, 1987, cites a violation of 30 C.F.R. § 57.5050(b), 

and the condition or practice states as follows (Exhibit P-10): 

The full shift exposure to mixed noise 

levels of the operator of the loader (Scoopy 

#2) working underground exceeded unity Cl00%) 

by 3.04 times (304%) as measured with a 

dosimeter. Personal hearing protection was 

being worn. This exposure is equivalent to an 

8-hour exposure to 98 dBA. 

1039 
Docket No. LAKE 87-85-M 

Section 104(a) non-"S&S" Citation No. 2865780, May 27, 

1987, cites a violation of 30 C.F.R. § 50.20, and the condition or practice is stated as follows (Exhibit P-1): 

A lost time injury accident occurred at 

this property on 4-30-87. A 7000-1 form, 

report of accident or injury, had not been 

submitted to MSHA as required. The employee 

injured was not worked on 5-1-87 due to the 

accident. 

MSHA's Testimony and Evidence Concerning the Accident 

Reporting Citation-Docket No. LAKE 87-85-M 

MSHA Inspector Jerry L. Spruell testified as to his training and experience, and he confirmed that he conducted an 

inspection on May 27, 1987, with fellow Inspector James Bagley, 

and upon requesting to look at any mine records relating to 

accidents in the mine, management produced records which showed 

that a lost time injury accident had occurred and that an 

employee had missed 1 day of work because of that accident. 

since an MSHA Form No. 7000-1, had not been submitted as 

required by section 50.20, he issued the citation. The company 

records he reviewed ·indicated that the employee was involved in 

an "injury" and missed 1 day of work and was not able to perform his regular duties because of being overcome by hydrogen 

sulfide gas. Mr. Spruell confirmed that the records di~ not 

show that the employee was involved in an "accident" (Tr. 

9-16). 

Mr. Spruell confirmed that at the time he issued the citation he was not aware that the employee received any medical 

treatment. After speaking with the employee he told him that 

he was unable to work on May 1, 1987, "because he was blind 

and couldn't see to run his drill," and was unable to work 

because "he couldn't see to do the job safely." The employee 

also told him that he had visited a doctor and that the doctor 

told him he did not want him exposed "to the gas at the high 

level like that at that short period of time without a recovery time" (Tr. 17). 

Mr. Spruell believed that the respondent was familiar 

with MSHA's injury reporting requirements because it has the 

forms and the instructions which are on the front cover. 

Mr. Spruell confirmed that he made a gravity finding of 

"unlikely" because the failure to report the injury would not 

1040 
cause an injury or illness, and he found "lost days or 

restricted duty" because the employee had an injury that 

resulted in a lost day. He also confirmed that he made a 

negligence finding of "moderate" because the off ice person who 

fills out the report advised him that she was not aware of the 

fact that lost time injuries had to be reported. Mr. Spruell 

abated the citation that same day after the person filled out 

a reporting form (Tr. 18). 

Inspector Spruell confirmed that he based his citation on 

certain documents which were given to him by mine management 

during his inspection. A supervisor's Report of Accident 

shows that the employee lost 1 day of work on May 1, 1987 

(Exhibit P-2-a). A worker's compensation form filed by the 

respondent reflects that the incident concerning the employee 

was a "lost work day case" (Exhibit P-2-b); (Tr. 20-23). 

On cross-examination, Mr. Spruell confirmed that except 

for the violation·· in question, the respondent's other records 

were reasonably kept and the respondent made a reasonable 

attempt to keep them up to date. Be did not believe that any 

of the respondent's employees were co,1spiring to "cover up" 

the injury report in question {Tr. 24). 

Mr. Spruell confirmed that he has been trained in the 

effects of hydrogen sulfide gas, and while it affects individuals differently, the-normal result of exposure to the gas 

results in eye irritation to anyone who has been exposed to 

high gas levels (Tr. 26). He also confirmed that the supervisor's report reflects the time of the injury as "all day," 

and this would indicate that the employee worked all day· (Tr. 

34). 

Mr. Spruell stated that he was familiar with MSHA Information Bulletin 86-GC, 86-3M {Exhibit R-1), and he denied that 

the respondent's accountant, Mrs. Spivey, told him that she 

used this bulletin in filling out injury and accident forms 

(Tr. 37). Mr. Spruell made reference to a certain information 

contained in the bulletin which requires the reporting of a 

"doubtful" injury {Tr. 40). 

In response to further questions, Mr. Spruell stated that 

it was his understanding that the employee worked his whole 

shift and went to a doctor after the shift (Tr. 46). 

Mr. Spruell stated that the employee in question, Joseph 

Clanton, did not contact him or his office with regard to his 

eye injury, and that he did not go to the mine to specifically 

look for any report incident to Mr. Clanton's eye condition. 

1041 
Mr. Spruell confirmed that his citation was issued solely on 

the basis of the records that the respondent showed him, and 

that he was not aware of Mr. Clanton's injury prior to the 

inspection (Tr. 72-73). Mr. Spruell was made aware of the 

fact that another MSHA inspector was at the mine on May 1, 

making gas readings, but this inspector was not looking into 

the injury reporting situation (Tr. 73). 

Mr. Spruell reaffirmed the fact that he issued the citation because of the respondent's injury report and the 

worker's compensation form which indicated that the employee 

missed 1 day of work because of gas exposure to his eyes CTr. 

106-107). Based on this information, he concluded that the 

lost day of work was a direct result of the injury, and all 

lost time injuries must be reported. He agreed that if the 

employee simply decided to take a day off for a reason other 

than an injury, then it would not hav~ to be reported (Tr. 

108-109). 

Joseph Clanton, confirmed that he is employed by the 

respondent as a drillman, and that he worked his shift on 

April 30, 1987. After coming to the surface at the end of his 

shift, his eyes were exposed to the light, and he stated that 

"I was blinded. I was in extreme pain, excruciating pain." 

He stated that he was angry, and was exposed to the same condition 2-days prior to April 30, and that he told the secretary 

and the mine superintendent "that when they got that place 

straightened out, fit to· work in, I'd be back." He confirmed 

that he intended to stay off "until they got this condition 

abated" (Tr. 50-51). 

Mr. Clanton stated that he attempted to drive home as he 

had done the previous two evenings, but after driving 5 miles 

he stopped at a friend's house and asked to be taken to a 

doctor. Mr. Clanton stated that he blindfolded himself, and 

!~ter it was dark he was able to see. After arriving at the 

~bctor's office, he was directed to the emergency room where 

his eyes were flushed out with sterile water. The doctor 

examined him and put some salve in his eyes and gave him the 

rest of it to use. The next morning his eyes "scabbed over a 

little bit, but they cleared up" (Tr. 54-55). Mine Superintendent Pilcher called him, and Mr. Clanton advised him that he 

did not care to come to work that day because he did not want 

to be exposed to the gas again (Tr. 55). 

Mr. Clanton stated that after visiting the doctor on 

Thursday, April 30, the doctor told him "you better not work 

tomorrow," referring to Friday, May 1, 1987. The doctor did 

not order him a prescription other than the tube of ointment 

1042 
which he gave him, and Mr. Clanton could not identify that 

medication. The ointment "made it hurt a little worse. But, 

it cleared up over night" (Tr. 56-58). Mr. Clanton was shown 

copies of the doctor's statements, (Exhibit P-3-a, b, c), and 

he confirmed that he had not previously seen these reports 

(Tr. 57). Mr. Clanton confirmed that he did not work on 

May 1, 1987, and that he was not paid workmen's compensation 

that day because he was not eligible for it (Tr. 63). 

Mr. Clanton could not remember the doctor instructing him 

to return to the clinic on May 5, 19S7, as stated in his 

report (Exhibit P-3-a), but that he did return the next morning on May 1, 1987, and that oa that day his vision was intact 

and his eyes were clear as stated in the doctor's report. 

However, his eyes "still hurt a little bit," and he had to 

wear sun glasses which he had purchased (Tr. 64-65). 

Mr. Clanton stated that while he was able to return to 

work on Friday, May 1, he was unwilling to do so, and that he 

informed Mr. Pilcher that he would not be back "until he got 

the air cleared up." Mr. Clanton stated that he would not 

have returneti to work that day even if the doctor had told him 

to (Tr. 65-66). He returned to work on Saturday, May 2, and 

worked in another area of the mine "where the good air was 

at," and was paid overtime (Tr. 66, Exhibit R-2). He confirmed that he has walked off the job on one prior occasion 

without notifying his··· supervisor <Tr. 68). 

Respondent's Testimony and Evidence 

Daniel Pilcher, respondent's mine superintendent, testified as to his experience, background, and education, and he 

confirmed that the mine air is monitored constantly by the 

respondent, as well as Federal and State inspectors when they 

are at the mine for inspections. In addition, mine employees 

are trained to recognize the hazards associated with hydrogen 

sulfide gas which is normally liberated by entrapped water. 

Measures are taken to exhaust the gas and to insure adequate 

ventilation to remove it (Tr. 77-81). 

Mr. Pilcher confirmed that he has reviewed the doctor's 

report which indicated that Mr. Clanton's eyes were clear and 

his vision intact the day after his injury. He had not seen 

the report when he spoke with Mr. Clanton that day, and 

Mr. Clanton led him to believe that the doctor did not think 

he should work that day (Tr. 82). 

1043 
Mr •. Pilcher stated that Mr. Clanton has walked off the 

job on two separate occasions without notifying anyone, and he 

was reprimanded for this (Tr. 85-86, Exhibit R-3). 

On cross-examination, Mr. Pilcher confirmed that he was 

familiar with MSHA's reporting procedures, and according to 

the guidelines if there is "a serious question" or doubt concerning an injury, it will be reported. If the respondent is 

sure of its status, it will not be reported. Mr. Pilcher 

agreed that the doctor's report, (Exhibit P-3-a) states that 

Mr. Clanton ~ould return to work on May 2, 1987, but "as far 

as we are concerned, that is not reportable." With regard to 

"a first aid case" where an employee loses a day of work, 

Mr. Pilcher believed it was a matter of judgment as to whether 

it had to be reported, and that in Mr. Clanton's case it was a 

first aid case, rather than a medical treatment case. In 

short, Mr. Pilcher believed that the regulation is not clear 

as to whether a first aid case is required to be reported (Tr. 

91-93). 

Mr. Pilcner confirmed that the doctor's report was presented well after the issuance of the citation and that the 

information he had available as to whether Mr. Clanton was 

able to return to work on Friday, May 1, 1987, was the conversation that he had with him that day during which Mr. Clanton 

informed him that he did not want to work in the same area and 

wanted to work elsewhere. Mr. Pilcher stated that he informed 

Mr. Clanton that this was not an option. Mr. Pilcher stated 

that he came to the conclu3ion that Mr. Clanton did not want 

to return "because he didn't want to return" and not bec~use 

of any gas exposure. In support of this conclusion, 

Mr. Pilcher stated that two other individuals working within a 

few feet of Mr. Clanton did not believe the gas was bad enough 

to see a doctor (Tr. 100). 

Thomas M. Dowling, respondent's Safety and Industrial 

Relations Inspector, confirmed that the filing of accident 

forms with MSHA is his responsibility and that the forms are 

kept in his off ice. He also confirmed that he is familiar 

with MSHA's accident reporting bulletin and that he uses it as 

a guide for the preparation of the reports. He stated that no 

report was filed in Mr. Clanton's case because it did not 

appear to be a lost time accident which met MSHA's criteria 

guidelines. He believed that a first aid situation establishes a "doubtful case" under the guidelines, and that there 

was no attempt to hide anything from MSHA, nor was it an oversight. He stated that based on MSHA's available criteria, "we 

did what we thought was right" (Tr. 115-117). 

1044 
On cross-examination, Mr. Dowling confirmed that worker's 

compensation reports are filed in any accident or injury situation that requires medical treatment or first aid, even in 

cases of no lost work days. This is done so that payment of 

the medical services may be obtained CTr. 119-120). When 

asked.why the forms which were filed in Mr. Clanton'scase 

reflect "one lost day," Mr. Dowling responded "I don't rightly 

know at this time" CTr. 121). 

Mr. Dowling conceded that taking the position that 

Mr. Clanton lost a day of work for worker's compensation purposes, but not tor MSHA's reporting requirements, was contradictory (Tr. 122). The discussions with Mrs. Spiyey as to 

whether the incident had to be reported to MSHA took place the 

week following the incident, but Mr. Dowling could not recall 

whether he discussed with Mrs. Spivey whether or not a report 

should be filed. The decision was probably made after the 

doctor's report was raceived, and Mr. Dowling concluded that 

it was a first aid case since no charges were received from 

the doctor for any prescription medication, and he probably 

instructed Mrs. Spivey not to file any report (Tr. 124-129). 

Mr. Dowling stated that he did not speak to the doctor 

concerning Mr. Clanton's case, and that the letter received 

from the doctor on June 19, 1987, was obtained to enforce his 

belief that there was some reasonable doubt, and to support 

the respondent's defense_ to the contested citation (Tr. 130). 

Mr. Dowling confirmed that Mr. Clanton worked in a different mine area when he returned to work on Saturday, May 2, 

because there was no activity in the area where he had previously worked on April 30, and all employees are given the 

option to do other work when they work on Saturdays (Tr. 131). 

Inspector Spruell was called by the respondent, and he 

confirmed that he had a conversation with Mr. Evans during 

which he advised Mr. Evans that Mr. Clanton could not be moved 

from a work area where he was experiencing a problem with gas 

in order to avoid lost time because this would be considered 

"restricted duty" which would have to be reported (Tr. 

132-134). 

MSHA's Testimony and Evidence concerning the Noise 

Citations-Dockets LAKE 88-4-M and LAKE 88-22-M 

MSHA Inspector Jerry L. Spruell confirmed that all of the 

noise citations in these proceedings were issued after inspections at the mines, which included noise surveys taken in 

connection with the cited equipment operator occupations, and 

1045 
mine management was informed of the inspections and surveys. 

Mr. Spruell confirmed that he issued Citation No. 2865785, 

after finding a muffler missing from one of the drill mechanisms mounted on the front of a two-boom jumbo drill. The 

drill operator was prepared for the noise survey at the start 

of his work shift, and a sound level meter test indicated that 

he was constantly exposed to noise levels above 115 dBA, and 

that is why he cited a violation of section 57.5050. Although 

the drill operator was wearing hearing protection, he was not 

wearing it at all times, and Mr. Spruell stated that he 

observed him on the drill without his hearing protective muff 

in place. 

Mr. Spruell stated that one of the drills was equipped 

with a muffler, and the other was not. He considered the 

muffler to be a feasible engineering control which reduced the 

level of noise exposure to the operator. He explained that 

the exposure level of 111 decibels as stated in the citation 

was the average noise exposure for the drill operator over his 

full work shift, and that the 118 decibels indicated a continuous noise exposure level as measured with a sound level meter. 

He confirmed that the equipment operators were "hooked up" for 

the noise survey before they went underground, and that the 

testing devices were removed when they came to the surface 

after their work shift. He also confirmed that the maximum 

allowable noise exposure pursuant to section 57.5050 is 

90 decibels over an a~hour work shift, and 115 decibels for 

any particular time (Tr.· 149-155). Mr. Spruell explained the 

noise testing procedures which he follows in conducting noise 

surveys, and he confirmed that the dosimeter and noise level 

meters were properly calibrated and used to support the citations which he issued (Tr. 155-159). 

Mr. Spruell stated that the jumbo drill is either 

factory-equipped with a muffler, or is manufactured in such a 

way as to facilitate the installation of a muffler. He stated 

that the respondent used "rubber type" mufflers, but that in 

this instance did not equip one of the drills with a muffler 

because "they didn't feel it had done that much good, and they 

didn't see any reason they would have to have it there" (Tr. 

159). 

Mr. Spruell stated that the drill violation presented a 

loss of hearing and permanently disabling type injury, and 

that he made a gravity finding of "highly likely" because the 

operator was not wearing hearing protection at all times, and 

he had to consider it highly likely that he would suffer some 

type of hearing loss from being exposed to noise of the level 

1046 
tested. Mr •. Spruell confirmed that he made a "moderate" negligence finding because the operator was wearing hearing protection "at times," and one of the drills had a muffler CTr. 

161-162). 

On cross-examination, Mr. Spruell confirmed that the 

drill was running at the time he observed the operator without 

his hearing muffs, and while conceding that he stated on the 

citation that "personal hearing protection was being worn," he 

explained that he made that statement to give the respondent 

the benefit of the doubt, and because the operator was wearing 

ear muffs "the biggest part of the time" (Tr. 164, 165). 

Mr. Spruell conceded that in the 9 years he has inspected the 

respondent's mines, he has not previously cited any noise 

violations (Tr. 167), and the reason for this is that no prior 

noise surveys were made at the mines (Tr. 208). 

Mr. Spruell confirmed that in the course of issuing his 

noise citations, he monitored the employees, but did not stay 

with them for the entire 8 hours. He confirmed that the 

employees were exposed to other mixed noise sources in the 

course of their work, and although they were wearing muffs, 

they were still exposed to measured noise levels above those 

required by the cited standards. With regard to the jumbo 

drill, his noise level meter recorded the sound level from 

that particular piece of equipment only, and his 118 decibel 

reading with the sound level meter was from that drill (Tr. 

170). Noise levels measured with a dosimeter indicate the 

work environment noise exposure, while sound level meter 

readings measure an instantaneous noise exposure level (Tr. 

173). 

Mr. Spruell explained that a dosimeter records all noise 

exposure levels that are 90 decibels or above over a full 

working shift, and while it is true that it records noise 

levels from different sources and does not differentiate the 

amount of noise coming from any one particular source, a sound 

level meter reading can (Tr. 177). In the case of the jumbo 

double drill citation, a noise level meter reading alone was 

sufficient to support the citation (Tr. 178). 

Mr. Spruell confirmed that among his suggestions to the 

respondent for achieving compliance with the noise standards 

was a suggestion that mufflers be installed or put back on the 

equipment in question. He agreed that the installation of 

mufflers would not achieve total compliance and that the 

equipment operators would still be required to wear personal 

hearing protection. Mr. Spruell also agreed that there were 

no other feasible engineering controls that would bring the 

1Q47 
respondent into compliance with the noise standards, but that 

in one instance a cab did bring the drill operator in his 

compartment into compliance, but would probably not bring 

others who are exposed to the drill noise into compliance (Tr. 

180-181). 

Mr. Spruell contended that with the installation of equipment mufflers, which are feasible engineering controls, and 

the wearing of personal hearing protection, the respondent 

will come into compliance, but without the personal hearing 

protection, it would not be in compliance (Tr. 184). Respondent's representative agreed that this is the issue that is 

basically involved in all of the noise citations which were 

issued in these proceedings, and that it has done everything 

required by MSHA to abate the citations and attempt to stay in 

compliance (Tr. 184-185). 

Diane Brayden, Industrial Hygienist, MSHA's Duluth, 

Minnesota District Off ice, testified as to her experience, 

education, and training in noise matters. She confirmed that 

she holds a B.S. degree in biology, and a master's degree in 

industrial hygiene, and that she has been in her present position with MSHA for 10 years (Tr. 249-251). She has participated in approximately 50 MSHA inspections involving noise, 

has visited mine sites where violations have occurred, and has 

testified for MSHA as an expert witness (Tr. 253). 

Ms. Brayden confirmed that she has reviewed the citations 

in this case, and that the mufflers involved are the exhaust 

type used to decrease the amount of energy being exhausted 

from compressed air, and to dissipate exhaust noise, which is 

a major contributor to the total noise emitted by the machines. 

She stated that the use of mufflers is feasible, and that the 

small noise decibel decreases resulting from the use of such 

mufflers translates into a significant change in the amount of 

energy that is doing the noise damage. In her opinion, the 

use of personal hearing protection to achieve a degree of compliance that has not been achieved by other means is unreliable because the hearing protectors such as muffs and ear 

plugs are tested under laboratory conditions which are not 

reflective of actual mine conditions and the use of other 

equipment, and she referred to several articles dealing with 

the testing and reliability of such personal hearing devices 

(Tr. 253-263). 

With regard to Citation No. 2865785 for the jumbo drill, 

and after hearing the testimony regarding that citation, 

Ms. Brayden's was of the opinion that while the noise exposure 

was significantly reduced by the installation of a muffler to 

1048 
abate the citation, the dosimeter reading of 1,867 percent of 

allowable noise exposure would indicate that the drill operator was losing his hearing to a significant degree even if he 

were to wear his ear muffs all day. With regard to this piece 

of equipment, the driller would be required to wear both ear 

plugs and muffs as well as having a muffler on the drill (Tr. 

265-266). 

Ms. Brayden considered the installation of mufflers on 

the equipment to be extremely important, and that the installation of such a muffler would take about 2 or 3 hours. She 

conceded that mufflers used on equipment under freezing conditions do aggravate existing freezing conditions, but that the 

use of air dyers to alleviate this problem is common in the 

industry. She believed that the use of mufflers as an engineering noise control device will permit the personal hearing 

protection to work more effectively in that the individual is 

exposed to less noise exposure (Tr. 269). 

On cross-examination, Ms. Brayden stated that as a general 

rule, exhaust noise is a major contributor to the total amount 

of noise exposure from other sources, but she could not state 

the percentage of noise that would be attributable to the 

exhaust without testing the particular piece of equipment (Tr. 

270). She agreed that a muffler would not bring a drill into 

total compliance below 90 decibels, and that this wou~d probably be true also for ·ear muffs. She stated that while MSHA 

would like to achieve total noise protection, in most cases 

total protection is not possible, and that to the degree that 

protection is available, the employee should have it (Tr. 272). 

Ms. Brayden also conceded that the wearing of ear protection throughout the day will not guarantee an employee's hearing, but that MSHA's position is that engineering controls are 

to be implemented to the degree that compliance can feasibly 

be met in that manner and that hearing protection will be 

accepted after that to achieve the remainder of the compliance. 

She believed that mufflers are a feasible engineering control 

in that they reduce noise to a significant degree, but that 

they are not capable of bringing the operator's exposure down 

to a 90 decibel level. However, mufflers are still considered 

by MSHA to be a feasible control in that their use reduces the 

noise exposure significantly, and without the muffler the 

employee would be exposed to a greater degree of noise than he 

would be with the muffler, regardless of whether he is in full 

compliance with the standard (Tr. 276-277). 

1049 
Findings and Conclusions 

Docket Nos. LAKE 88:...4-M and LAKE 88-22-M 

In these cases, the respondent is charged with violations 

of the mandatory noise exposure requirements found in 

30 C.F.R. § 57.5050. Citation Nos. 2865757, 2865758, 2865759, 

3059584, and 3059585 were issued because of the failure by the 

respondent to utilize feasible engineering controls to reduce 

noise levels of over 90 decibels for an 8-hour period in violation of section 57.5050(b), and Citation No. 2865785 was 

issued for the failure by the respondent to utilize feasible 

engineering controls to reduce noise exposure in excess of 

115 decibels in violation of section 57.5050. The cited noise 

standards provide as follows: 

57.5050 Mandatory. Ca) No employee shall 

be permitted an exposure to noise in excess of 

that specified in the table below. Noise level 

measurements shall be made using a sound level 

meter meeting specifications for type 2 meters 

contained in American National Standards 

Institute (ANSI) Standard Sl.4-1971. "General 

Purpose Sound Level Meters," approved April 27, 

1971, which is hereby incorporated by reference 

and made a part hereof, or by a dosimeter with 

si~ilar accuracy. This publication may be 

obtained from the American National Standards 

Institute, Inc., 1430 Broadway, New York, 

New York 10018, or may be examined in any Metal 

and Nonmetal Mine Health and Safety District or 

Subdistrict Off ice of the Mine Safety and 

Health Administration. 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, 

hours of exposure 

8 

Sound level dBA, 

slow response 

90 

6 • • • • . • • • • • • • 9 2 

4 . . • 

3 

2 • 

1-1/2 • 

1 . 

1/2 . • 

1/4 or less 

• • • • • • e 9 5 

97 

• • 100 

• 102 

. • 105 

• • • • 110 

. . . . . . . . . . 115 

1050 
No exposure shall exceed 115 dBA. Impact or 

impulsive noises shall not exceed 140 dB, peak 

sound pressure level. 

NOTE. When the daily exposure is composed 

of two or more periods of noise exposure at 

difference levels, their combined effect shall 

be considered rather than the individual effect 

of each. 

If the sum 

exceeds unity, then the mixed exposure shall be 

considered to exceed the permissible exposure 

Cn indicates the total time of exposure at a 

specified noise level, and Tn indicates the 

total time of exposure permitted at that level. 

Interpolation between tabulated values may be 

determined by the following formula: 

log T = 6.322 - 0.0602 SL 

Where T is the time in hours and SL is the 

sound level in dBA. 

Cb) When employees' exposure exceeds that 

listed in the above table, feasible administrative or engineering controls shall be utilized. 

If such controls fail to reduce exposure to 

within permissible levels, personal protection 

equipment shall be provided and used to reduce 

sound levels to within the levels of the table. 

The respondent agreed that all of the contested citations 

concern common issues, and involve the absence of mufflers on 

the particular pieces of equipment being operated by the 

miners who were out of compliance with the noise exposure 

requirements found in the cited standard (Tr. 211). All of 

the affected miners were wearing personal hearing protection 

at the time the citations were issued, and although abatement 

was achieved by the installation of mufflers on the cited 

equipment, the respondent was still out of full compliance 

with the cited standards. The respondent denied that it seeks 

to discontinue the use of personal hearing protection devices, 

or that it had any problems in installing mufflers on the 

cited equipment in question (Tr. 231-233). Respondent contended that section 57.5050(b) does not include a requirement 

1051 
that noise levels be reduced to any specific level and permits 

the continued use of personal hearing protection notwithstanding the fact that feasible engineering noise control devices 

such as mufflers still do not reduce the noise levels to 

within permissible levels (Tr. 215). Respondent took the position that requiring it to install mufflers on its equipment is 

an exercise in futility because it would still be out of compliance and the equipment operators would still be required to 

wear personal hearing protection. In this regard, respondent's representative stated that MSHA "wants us to spend 

m_oney for remedies that don't work." 

The respondent conceded that MSHA has not required it to 

do anything other than install mufflers and to insure that its 

employees wear personal hearing protection. However, it is 

concerned that future inspections will require it to do more 

and that "it's an ongoing thing" (Tr. 199-201). Inspector 

Spruell stated that had the mufflers been installed on the 

equipment, and all employees were wearing personal hearing 

protection, he would not have issued the citations (Tr. 203). 

He confirmed that he issued the citations because of the 

absence of mufflers which are considered feasible engineering 

controls to reduce noise levels (Tr. 203). Although 

Mr. Spruell mentioned the use of cabs as feasible noise controls, he conceded that they are not feasible at the respondent's mines, but that mufflers definitely are. Further, 

Mr. Spruell could cite no other feasible noise controls 

available at this time for the respondent other than mufflers 

(Tr. 207). 

During the course of the hearing, the respondent conceded 

that all of the cited equipment was out of compliance with the 

noise level requirements found in the cited standards, and it 

did not deny the existence of the conditions cited and 

described by the inspectors on the face of the citations. 

Further, the respondent did not question the noise exposure 

levels cited by the inspectors as a result of their noise 

survey tests, nor did it question the test procedures followed 

by the inspectors with respect to the use of dosimeters and 

noise level meters in support of the citations <Tr. 212-215; 

220, 236, 239-241). •rhe respondent further agreed that a 

dosimeter which is attached to a miner during a noise survey 

records the sound levels in his normal working environment, 

and that once it is attached to an employee, there is no 

requirement that an inspector stay with the employee and 

monitor his movements during the entire 8-hour working shift 

(Tr. 170). Respondent also agreed that a dosimeter measures 

the noise exposure level for an employee's working environment 

1052 
over a full 8-hour shift, and that a noise level meter gives 

an instantaneous reading of the noise level exposure. 

In its posthearing brief, the respondent asserts that as 

a result of the mobility of its employees, they are exposed to 

numerous noise sources such as loaders, trucks, drills, fans, 

and rock breakers during the normal course of a days work, and 

it rejects MSHA's argument that the installation of a muffler 

on a single piece of equipment being operated by an employee 

resulted in a reduction of the noise exposure level, and that 

coupled with the use of personal hearing protection, the 

respondent i5 in compliance with the standard. Respondent 

states that it rejects this argument because MSHA did not 

address the issue of total 8-hour exposure and the feasibility 

of muff ling of all noise exposure sources that an employee 

would encounter during the duration of his work shift. In 

support of this argument, the respondent cites my prior 

decision in ASARCO, Inc., v. Secretary of Labor, 3 FMSHRC 1300 

(May 1981), in which I vacated a noise citation after finding 

that MSHA's suggested use of certain noise controls were not 

technologically feasible because of the required mobility of 

the cited equipment operators. 

The respondent further argues that MSHA has failed to 

prove that any feasible engineering controls are available for 

mu~ti-noise sources resulting from equipment operator mobility, and that in the ·abatement of the citations MSHA made no 

effort to inspect for 8-hour noise exposure to the employee, 

but simply relied on an instant sound meter reading on single 

items of equipment. The respondent suggests that this type of 

testing fails to prove that the type of muffler suggested by 

the inspectors for installation on the cited equipment did in 

fact lower the 8-hour noise exposure levels in question. The 

respondent points out that while Inspector Spruell agreed that 

it was in compliance after the mufflers were installed, he 

could not speak for other inspectors, and the respondent 

expressed concern that other inspectors may in the future continue to cite it for being out of compliance in the same 

circumstances. 

Citing a decision by former Commission Judge Charles 

Moore in Hilo Coast Processing Company v. Secretary of Labor, 

1 FMSHRC 895 (July 1979), respondent argues that the lack of 

any identifiable and definitive MSHA criteria for economically 

feasible noise controls when they do not bring noise exposure 

within permissible limits leaves the matter to the judgment of 

individual inspectors, and requires an operator to guess at 

what must be spent on noise controls that will meet the estimate of some unknown inspector at some future time. In the 

1053 
Hilo case, Judge Moore vacated several noise citations after 

finding that MSHA had failed to prove that certain engineering 

controls recommended by the inspector were technically and 

economically feasible. Judge Moore found that for the most 

part, MSHA's proof was based on the unsupported personal 

judgments of the inspector who issued the citations, and that 

the operator was left in the untenable position of "guessing" 

as to what was required by the inspector for compliance. 

During the course of the hearing, MSHA took the position 

that although the installation of mufflers on the cited equipment in question were feasible engineering controls which 

could readily be used to reduce the noise level, personal hearing protection would still be required in conjunction with the 

use of the mufflers. MSHA pointed out that the respondent's 

complaint is that it was still required to use personal hearing protection even though the use of mufflers did not reduce 

the noise exposure to within the levels required by the table 

found in section 57.5050 (Tr. 186). MSHA's view is that the 

installation of the mufflers resulted in a significant reduction of the noise levels to which the employees operating the 

equipment were exposed, and that this is precisely what section 57.5050 mandates (Tr. 230). 

In its posthearing brief, MSHA asserts that the mufflers 

used to reduce the noise levels in question are feasible engineering controls because (1) the operators of the equipment 

were exposed to excessive noise; (2) the mufflers were capable 

of reducing noise exposure and were technologically feasible; 

(3) a significant noise reduction was obtained by the use of 

the mufflers; and (4) the cost estimates for the mufflers were 

sufficiently precise and were not wholly out of proportion to 

the expected benefits. 

In MSHA v. Callanan Industries, Inc., 5 FMSHRC 1900 

(November 1980), the Commission construed the term "feasible" 

as "capable of being done," and it concluded that the determination of whether the use of an engineering control to reduce a 

miner's exposure to excessive noise is capable of being done 

involves consideration of both technological and economic 

achievability. In allocating the burden of proof required to 

make this determination, the Commission offered the following 

guidelines at 5 FMSHRC 1909: 

(I]n order to establish his case the Secretary 

must provide: (1) sufficient credible evidence 

of a miner's exposure to noise levels in excess 

1054 
of the.limits specified in the standard; (2) 

suff icieht credible evidence of a technologically achievable engineering control that could 

be applied to the noise source; (3) sufficient 

credible evidence of the reduction in the noise 

level that would be obtained through implementa~ 

tion of the engineering control; (4) sufficient 

credible evidence supporting a reasoned estimate 

of the expected economic costs of the implementation of the control; and (5) a reasoned demonstration that, in view of elements 1 through 4 

above, the costs of the control are not wholly 

out of proportion to the expected benefits. 

After the Secretary has establi3hed each of the 

above elements, the operator in rebuttal may 

refute any of the components of the Secretary's 

case. 

In Todilto Exploration and Development Corporation v. 

MSHA, 5 FMSHRC 1894 (November 1983), an inspector cited a violation of 30 C.F.R. § 57.5-50(b}, after conducting an 8-hour 

noise survey with a dosimeter on a jackleg percussion rock 

bolt drill in an underground uranium mine and finding that the 

drill operator was exposed to 114 dBA. The drill operator was 

wearing ear plugs and muffs, and the drill was not equipped 

with a muffler. The violation was abated by the installation 

of a muffler on the drill. However, subsequent noise readings 

with a sound level meter showed that excessive noise levels 

still existed, and the readings established that the drill 

operator's average noise exposure levels ranged between 

110 dBA and 113 dBA. Even though Todilto attached a muffler 

to the drill, the drill operator was still required to wear 

personal protective equipment. 

The judge found that the drill operator was exposed to an 

excessive noise level, and although he also found that MSHA 

established that the installation of the muffler was an engineering control available to Todilto, since the exposure to 

noise was still not within permissible levels as required by 

the regulation, even with the muffler attached, the judge concluded that the installation of the muffler was not a feasible 

engineering control, and he vacated the citation. On appeal, 

the Commission reversed and stated as follows at 5 FMSHRC 

1896-1897: 

[W]e hold that a control may indeed be 

"feasible" within the meaning of 30 C.F.R. 

§ 57.5-50(b} even though it does not reduce the 

miner's exposure to noise to permissible levels 

1055 
set forth in subsection Ca) of the standard. 

Our holding is based upon the express wording 

of the noise standard. Section 57.5-50(b) 

unambiguously provides that when excessive 

noise exposure levels exist, "feasible administrative or engineering controls shall be 

utilized." It continued, "[i]f such [feasible] 

controls fail to reduce exposure to within permissible levels, personal protection equipment 

is to be provided and used •••• " (Emphasis 

added}. Thus, the noise standard clearly contemplates that in a given case a control might 

not reduce the noise exposure level to within 

permissible levels, but nevertheless be a 

"feasible" control required to be implemented. 

To allow a mine operator to proceed directly to 

the use of personal protective equipment and 

thereby avoid implementing otherwise feasible 

administrative or engineering controls, solely 

because use of the controls themselves does not 

achieve permissible exposure levels, would be 

to allow circumvention of the standard's clear 

requirement that excessive noise levels first 

be addressed at their source. We note that 

under the judge's approach a control that 

reduces the level of noise from 114 dBA to 

91 dBA Con the basis of an 3-hour exposure 

period} would not be feasible simply because it 

fails to reduce the noise level to 90 dBA. We 

find no support for this result in the standard. 

The Todilto case was remanded for the judge's determination as to whether or not MSHA proved a violation of section 

57.S-50(b} for failure by the operator to implement a feasible 

engineering control within the parameters of the Commission's 

guidelines as enunciated in Callanan, supra. On April 17, 

1984, the judge issued his decision and found that MSHA had 

established that the drill operator was exposed to an excessive noise level, that the muffler was a technologically 

achievable engineering control capable of reducing the drill 

operator's noise exposure, and that the cost was not unreasonable for the benefits achieved. The judge found that Todilto 

was in violation of section 57.5-SO(b}, and stated in pertinent part as follows at 6 FMSHRC 934 (April 1984}: 

Therefore, based upon the credible evidence in this case, and the Commission's 

decision in Callanan, I find that the Secretary 

has proven the respondent violated mandatory 

1056 
standard§ 57.5-50(b) by failing to implement 

the feasible engineering control (muffler) 

which was available to it. The fact that the 

muffler did not reduce the noise level to that 

required by the standard is not a proper reason 

for an operator to avoid the control and go 

directly to personal protection equipment. The 

standard contemplates the use of such personal 

equipment only after all other "feasible" 

engineering controls are installed to achieve 

the best results possible. 

In MSHA v. Landwehr Materials Inc., 8 FMSHRC 54 (January 

1986), Judge Broderick affirmed a citation for a violation of 

section 56.5-50(b), after finding that a shovel operator at a 

limestone quarry who was wearing personal hearing protection 

was exposed to a 96 dBA noise level for an 8-hour shift. After 

the termination date for the citation was extended, MSHA's 

Denver Technical Support Group performed a noise control survey 

which showed that the noise level in the shovel operator's 

environment was reduced by approximately 33 percent, from an 

average of 101 to 98 dBA, when a vinyl curtain was installed 

between the shovel operator and the engine compartment of the 

shovel. While significant, this reduction did not bring the 

noise level down to the permissible 90 dBA specified in the 

cited standard, and personal protection equipment was still 

deemed necessary. Judge Broderick found that the installation 

of the vinyl curtain was a feasible engineering control available to reduce the operator's noise exposure, and that 

Landwehr's failure to utilize this feasible noise control 

constituted a violation of section 56.5-50(b). 

In MSHA v. Texas Architectural Aggregates, Incorporated, 

9 FMSHRC 1136 (June 1987), I affirmed a violation of section 

57.SOSO(b), after finding that the development and installation of a noise barrier on a drill were not wholly out of 

proportion to the resulting noise reduction benefits which 

were achieved, and that the fact that the 5 dBA noise reduction with the use of the barrier did not bring the mine operator into total compliance with the permissible level stated 

in the standard is no reason to excuse the use of the barrier 

or from continuing to use personal hearing protection in conjunction with the barrier. 

After careful consideration of all of the arguments presented in these proceedings, I conclude and find that MSHA has 

the better part of the argument, and on the facts here presented, its position is correct. The respondent's reliance on 

the ASARCO and Hilo Coast decisions, supra, are not well taken. 

1057 
The £acts in those cases are clearly distinguishable from 

those presented in the instant proceedings. In those cases, 

the citations were vacated because of a lack of any credible 

evidence that feasible or economically achievable administrative or engineering noise controls were available for use by 

the operators to reduce noise exposure. The credible evidence 

presented in the instant cases establishes that the use of 

mufflers were economically feasible for use on the equipment, 

and that once installed, the noise levels were reduced. 

The evidence establishes that after the installation of 

the mufflers, the mixed noise exposure to the No. 1 haulage 

truck operator was reduced from 100.3 dBA to 99.5 dBA; the 

noise level exposure to the No. 2 truck haulage operator was 

reduced from 99.3 dBA to 95.5 dBA; the noise exposure to the 

front-end loader operator was reduced from 97.7 dBA to 

95.9 dBA; the noise exposure to the jumbo drill operator was 

reduced from 111 dBA to 105.9 dBA; the noise exposure to the 

Wagner 2B loader operator was reduced from 93 dBA to 92.3 dBA; 

and the noise exposure to the Scoopy No. 2 loader operator was 

reduced from 98 dBA to 94.6 dBA. 

Inspector Spruell confirmed that his noise level test 

with a noise level meter recorded only the noise from the 

jumbo drill because that was the only piece of equipment 

operating at the time, and he did not test any of the jack 

legs located in another heading because they were equipped 

with mufflers and would be in compliance, and they were not in 

operation when he tested the drill (Tr. 168-170). He also 

confirmed that the noise level measurements taken by means of 

the dosimeters measured the mixed noise exposure of each of 

the other equipment operators in their respective work environments during the course of their work shifts. MSHA's noise 

expert Brayden confirmed that exhaust noises emitted by the 

machines in question are major contributors to the total noise 

emitted by that equipment as well as to the total noise exposure from other sources, and that the use of the mufflers were 

feasible engineering controls that reduced the total noise 

exposure to a significant degree. In her unrebutted opinion, 

the small noise decibel decreases which resulted from the 

installation of the mufflers on the equipment translated into 

a significant change in the amount of exhaust energy causing 

noise damage, and that the use of mufflers reduces the noise 

exposure significantly. Without the use of the mufflers on 

the equipment, the employe~s would be exposed to a greater 

degree of noise. 

In view of the foregoing ~indings and conclusions, I conclude and £ind that the petitioner has established violations 

luSB 
for each of the noise citations in question by a preponderance 

of the credible evidence adduced in these proceedings, and 

they are all AFFIRMED. 

Docket No. LAKE 87-85-M 

Fact of Violation 

In this case, the respondent is charged with a violation 

of mandatory reporting standard 30 C.F.R. § 50.20, for failing 

to report an eye injury to miner Joseph Clanton. The record 

reflects that Mr. Clanton was exposed to hydrogen sulfide gas 

while working underground on Thursday, April 30, 1987, and 

that after corning to the surf ace at the end of his work shift 

and exiting the mine, he experienced severe pain to his eyes 

and went to see a doctor for treatment. Mr. Clanton did not 

·work the following day, Friday, May 1, but did work on 

Saturday, May 2. The respondent maintains that Mr. Clanton's 

failure to report for work on May 1, was not due to his 

injury, and the petitioner claims that it was. 

Section 50.20Ca}, 30 C.F.R. § 50.20(a}, of the regulations provides: 

(a) Each operator shall maintain at the 

mine off ice a supply of MSHA Mine Accident, 

Injury, and Illness Report Form 7000-1. These 

may be obtained from MSHA Metal and Nonmetallic 

Mine Health and Safety Subdistrict Offices and 

from MSHA Coal Mine Health and Safety Subdistrict Offices. Each operator shall report each 

accident, occupational injury, or occupational 

illness at the mine. * * * The operator shall 

mail completed forms to MSHA within ten working 

days after an accident or occupational injury 

occurs or an occupational illness is diagnosed. 

* * * * * * * 

Section 50.2(e) 30 C.F.R. § 50.2(e) states: 

(e) "Occupational injury" means any 

injury to a miner which occurs at the mine for 

which medical treatment is administered, or 

which results in death or loss of consciousness, inability to perform all job duties on 

any day after an injury, temporary assignment 

to other duties, or transfer to another job. 

1059 
Section 50.2(g), 30 C.F.R. § 50.2Cg) states: 

Cg> "First aid" means one-time 

treatment, and any follow-up visit for 

observational purposes, of a minor injury. 

The criteria for differentiating between medical treatment 

and first aid is found in section 50.20-3. Medical treatment 

includes, but is not limited to, the treatments and procedures 

described in subsection (a). First aid is described as 

follows: 

First aid includes any one-time treatment, and 

follow-up visit for the purpose of observation, 

of minor injuries such as cuts, scratches, 

first degree burns ana splinters. Ointments, 

salves, antiseptics, and dressings to minor 

injuries are considered to be first aid. 

The criteria for treatment of eye injuries is found in 

section 50.20-3(a)(5), which provides as follows: 

(5) Eye Injuries. Ci> First aid treatment is limited to irrigation, removal of 

foreign material not imbedded in eye, and application of nonprescription medications. A precautionary visit (special examination) to a 

physician is considered as first aid if treatment is limited to above items, and follow-up 

visits if they are limited to observation only. 

(ii) Medical treatment cases involve 

removal of imbedded foreign objects, use of 

prescription medications, or other professional 

treatment. 

MSHA's policy guidelines with respect to the reporting 

requirements of Part 50, Title 30, Code of Federal Regulations, are found in MSHA Program Information Bulletin 

No. 86-6C and 86-3M, December 11, 1986, (Exhibit R-1). These 

guidelines provide in pertinent part as follows: 

In some cases, an injured or ill employee 

may miss one or more scheduled days or shifts 

and it will be uncertain if the employee was 

truly unable to work on the days missed. Situations may arise when a physician concludes that 

the employee is able to work but the employee 

feels that he or she is not able. In such 

1060 
instances, the employer should make the final 

judgment based on all available evidence. 

Similarly, if a doctor tells the employee to 

take time off and the company requests a second 

opinion, and the second doctor says the 

employee can return to work, it would be the 

employer's decision as to when the employee was 

able to return to work. <Page 8). 

* * * * * * * 

Medically treated injuries are reportable. 

First-aid injuries are not reportable provided 

there are no lost workdays, restricted work 

activity or transfer because of the injury. 

Medical treatment does not include 

first-aid treatment (one-time treatment and 

subsequent observation of minor scratches, 

cuts, burns, splinters, and so forth, which do 

not ordinarily require medical care) even if it 

was provided by a physician or a registered 

professional person. 

* * * It is not possible to list all types of 

medical procedures and treatments and on that 

basis alone determine whether first aid or 

medical treatment was involved. The important 

point to be stressed is that the decision as to 

whether a case involves medical treatment 

should be made on the basis of whether the case 

normally would require medical treatment. The 

decision cannot be made on the basis of who 

treats the case. First aid can be administered 

by a physician or another medical person and 

medical treatment can be administered by someone other than a phydician. (Page 9). 

* * * * * * * 

Prescription medication--Any use of 

prescription medication normally constitutes 

medical treatment. However, it should be 

considered first aid when a single dose or 

application of ~ prescription medication is 

given on the first visit merely for the relief 

of pain or as preventive treatment for a minor 

injury. This situation may occur at facilities 

having dispensaries stocked with prescription 

1061 
medications frequently used for preventive 

treatment and relief of pain and attended by a 

physician or a nurse operating under the standing orders of a physician. The administration 

of nonprescription medication in similar circumstances would be considered first aid. (Page 

10). 

* * * * * * * 

Eye injuries. First-aid treatment is 

limited to irrigation, removal of foreign material not imbedded in the eye, and application 

of nonprescription medications. A precautionary diagnostic visit (special examination) to a 

physician is considered as first aid if the 

treatment is limited to the above items. 

Follow-up visits are limited to observation 

only. Medical treatment cases involve removal 

of imbedded foreign objects, use of prescription medications, or other physician-type 

treatment. (Page 11). 

* * * * * * * 

23. Q. What are "days away from work" and how 

are they calculated. 

* 

A. "Days away from work" are days which 

the employee would have worked but 

could not because of an occupational 

injury or an occupational illness. 

* * * (Page 26). 

* * * * * * 

47. Q. What is an occupational injury? 

A. An occupational injury is any injury 

to an employee which occurs at a mine. 

To be reportable, the injury must (1) 

require medical treatment, or (2) 

result in death or loss of 

consciousness, or (3) result in the 

inability of the injured person to 

perform all of the job duties required 

by the job on any day after the 

injury, or (4) require the injured 

person to be temporarily assigned to 

1062 
* * 

other duties, or (5) require the 

injured person to be transferred to 

another job, or (6) require the 

injured person to be terminated. 

(Page 32). 

* * * * * 

58. Q. Should an operator report questionable 

injuries? 

A. Operators have an obligation to 

investigate all injuries happening or 

alleged to have happened on mine 

property. After an investigation has 

been completed, the operator must make 

the determination as to whether the 

incident is reportable to MSHA. If he 

has any doubt, he should report. If 

the operator's conclusion is that no 

incident occurred, then there is 

nothing to report. (Page 34). 

Respondent's Arguments 

The respondent maintains that the facts surrounding 

Mr. Clanton's eye injury constitutes a "doubtful reporting 

case," and in deciding whether or not to report such an 

injury, it relied on the guideline information contained on 

page 8 which allows a mine operator to make the final judgment 

in situations of uncertainty. Based on all of the available 

evidence at the time of the injury, respondent concludes that 

the injury was not reportable. 

In support of its position that the injury was not 

reportable, the respondent points out that on the day of the 

injury Mr. Clanton worked all day at his regular job as a 

drillman, that his exposure to the gas did not hinder his 

ability to perform his work that day, and that other employees 

working in the same work environment did not file any reports 

of injury and were present for work the following morning. 

Referring to the Surgeon's Report dated May 5, 1987, (exhibit 

P-2B), the respondent further points out that it states that 

Mr. Clanton's eyes were congested, but that his vision was 

intact and his lungs were clear, and that the treatment administered consisted of irrigating his eyes with sterile water 

and an application of an ointment. Given this treatment, and 

the fact that the report states that further treatment was not 

needed, the respondent concludes that on the day of his visit 

1063 
to the doctor, Mr. Clanton had no vision damage, could see 

normally, his lungs were unimpaired, and no medical reason is 

stated in the report as to why Mr. Clantbn could not work. 

Referring to a doctor's statement dated June 19, 1987, 

(exhibit P-3), the respondent further points out that the 

statement indicates that rather than reporting back to the 

doctor on May 5, 1987, as instructed, Mr. Clanton returned the 

day after his injury, May 1, 1987, without an appointment, and 

his vision was intact and his eyes were clear. No symptoms or 

conditions were cited that would have prevented Mr. Clanton 

from reporting to work, and the doctor reported that 

Mr. Clanton could work on Saturday, May 2, 1987. The respondent finds this unusual in that Saturday was not normally a 

scheduled work day, but Mr. Clanton was aware that the mine 

had been scheduled for work that day and by being released 

that day he could and did in fact work at time and one-half 

his normal rate. The respondent states that in most cases, 

the doctor would have scheduled a reporting time as Monday 

unless requested to do otherwise. Under these circumstances, 

the respondent concludes that a prudent man would have to 

assume that if all of the symptoms which gave rise to the 

problem in the first place are gone, Mr. Clanton was fit, well 

and able to ceturn to work on May 1, 1987. 

Finally, the respondent asserts that according to 

Mr. Clanton's own testimony during the hearing, he admitted 

that he was not unable to work on Friday, May 1, 1987, but was 

unwilling to do so and that he would not have returned to work 

that day even if the doccor had told him to do so (Tr. 65-66). 

The respondent points out that Mr. Clanton had previously been 

disciplined by verbal and written reprimand for walking off 

the job on two occasions in March and August, 1987, {exhibit 

R-3), and that his demeanor and statements made during the 

hearing reflects a hostile dislike for his job assignment, the 

company, and authority in general. The respondent concludes 

that Mr. Clanton's failure to report for work on May 1, 1987, 

the day after his injury, was not the result of his injury, 

but rather, a decision of his own which had no connection with 

his injury. The respondent further concludes that 

Mr. Clanton's injury was a "doubtful case" consisting of first 

aid, and that the respondent exercised its discretion and 

judgment in such cases in concluding that the injury did not 

have to be reported (Tr. 139-140). 

Petitioner's Arguments 

During the course of the hearing, petitioner's counsel 

asserted that Mr. Clanton lost a day of work on May 1, 1987, 

1064 
because of his eye injury. Counsel asserted that when 

Mr. Clanton went to the doctor on April 30, he was treated and 

told to come back the following Tuesday, May 5, and that the 

doctor "was expecting that he wasn't going to work the following day." Although Mr. Clanton was feeling better and went 

back to see the doctor on Friday, May 1, and the doctor found 

that his eyes and vision were clear, the doctor did not tell 

him to go to work that day and "considered that he shouldn't 

go to work that Friday and go back to work on Saturday." 

Since Mr. Clanton was unable to work on Friday, counsel concluded that his injury was reportable (Tr. 140-141). 

In nis posthearing brief, petitioner's counsel argues 

that Mr. Clanton's eye injury was a reportable occupational 

injury because it required medical treatment and he was unable 

to perform all of his job duties the day after his injury. 

counsel cites the definition of "occupational injury" found in 

section 50.2(e), which states that such an injury is one which 

requires medical treatment or which results in the miner's 

inability to perform all job duties on any day after an injury. 

Counsel also cites the criteria for treating eye injuries 

found in section 50.2-3(a)(5), which states that medical treatment cases involve the use of prescription medications. 

Citing page 1315 of the Physicians Desk Reference, 

42 Edition, 1988, published by Edward R. Barnhart, regarding 

the decadron family or prescriptions for eye treatment, petitioner's counsel asserts that Mr. Clanton received prescription medication, that Neosporin Opt Ointment was prescribed 

three times daily, and that in first aid treatment the doctor 

does not prescribe medications with instructions for its continued use. Counsel also cites the unrebutted testimony of 

Mr. Clanton that the doctor told him not to work the day 

following his injury (Tr. 56). 

Finally, counsel dtates that the record establishes that 

the respondent was familiar with MSHA's requirements for 

reporting injuries, and in response to the respondent's "doubtful" case defense, points out that MSHA's policy guidelines 

state that doubtful cases should be reported. 

Findings and Conclusions 

Inspector Spruell confirmed that he issued the citation 

after reviewing the respondent's accident and injury records. 

His review included an examination of a report prepared by 

Mr. Clanton's supervisor K. E. Clanton, who is not related to 

Mr. Clanton, and it was prepared on May 6, 1987 (exhibit P-2). 

That report indicates that Mr. Clanton "lost 1 day 5-1-87." 

1065 
At the time the citation was issued, Mr. Spruell was unaware 

of the fact that Mr. Clanton had received any medical treatment, but after speaking with him at a later time, he learned 

from Mr. Clanton that he had been "blinded" by his exposure to 

gas and had visited a doctor. Mr. Spruell also confirmed that 

he reviewed a report filed by the respondent's accountant, 

Mrs. E. L. Spivey on May 6, 1987, with the state workers' compensation office which indicated that Mr. Clanton's case was a 

"lost workday case" (exhibit P-2-2D). In view of the fact 

that the inspector could find no record that the respondent 

had reported the injury to MSHA, he issued the citation. The 

violation and citation were abated that same day after 

Mrs. Spivey filled out the required MSHA Form 7000-1 (exhibit 

P-2-2C). 

Inspector Spruell confirmed that the respondent had never 

been previously cited for failure to report accidents or 

injuries, and with the exception of the citation which he 

issued in this case, the respondent always maintained its 

records current. He confirmed that Mrs. Spivey told him that 

she had not filed the injury report in question because she 

was not aware of the fact that all lost time injuries had to 

be reported. 

Mrs. Spivey was not called to testify in this case. 

Although Mine Superintendent Pilcher acknowledged that MSHA's 

guidelines require the reporting of "serious question" injury 

cases, he took the position that Mr. Clanton's case was a 

"first aid" type of injury case, rather than a medical treatment case, and that in hid judgment, the injury did not have 

to be reported. He also believed that the guidelines we.re not 

clear as to whether a "first aid" case needed to be reported, 

and that Mr. Clanton's failure to work on the day after his 

injury was unrelated to his injury, and that Mr. Clanton 

simply did not wish to return to work. 

Safety and Industrial Relations Inspector Dowling confirmed that no MSHA injury report was filed because it did not 

appear that Mr. Clanton's case was a lost time accident case 

pursuant to MSHA's guidelines. He believed that a first aid 

situation establishes a "doubtful case" under MSHA's guidelines, and that in the exercise of its judgment not to report 

the injury, the respondent acted properly and did not attempt 

to hide anything from MSHA. Mr. Dowling could offer no 

explanation as to why the forms executed by the respondent 

which were reviewed by the inspector reflected "one lost day," 

nor could he recall whether he specifically discussed with 

Mrs. Spivey the need to file a report with MSHA. Mr. Dowling 

concluded that since no charges were received from the doctor 

1066 
for any prescription medicine, Mr. Clanton's injury was a 

first aid case, and that he "probably" instructed Mrs. Spivey 

not to file an MSHA report. Mr. Dowling confirmed that he did 

not speak to the doctor, and that the doctor's statement of 

June 19, 1987, was obtained to confirm Mr. Dowling's belief 

that Mr. Clanton's case involved some reasonable doubt as to 

whether his injury needed to be reported. 

The evidence adduced in this case, including Mr. Clanton's 

admissions, suggest that his eye condition had cleared up on 

May 1, 1987, when he voluntarily returned to see the doctor, 

and that he was able to return to work that day but chose not 

to do so. There is no evidence other than Mr. Clanton's 

self-serving statement, that the doctor ordered him not to 

return to work that day. Given the fact that the doctor found 

that Mr. Clanton's vision was intact and his eyes were clear on 

May 1, and Mr. Clanton's admission that he was unwilling to 

return to work regardless of his eye condition, and that he 

would not have done so even if the doctor had specifically 

cleared him for work that day, I cannot conclude that 

Mr. Clanton was unable to perform his job duties that day, or 

that his lost day of work was the direct result of his eye 

injury. 

Having viewed Mr. Clanton's demeanor and attitude toward 

the respondent during his testimony, which indicates a dislike 

for his general employment situation at the mine, I believe 

Mr. Clanton's reluctance to return to work was based not only 

on his fear of being further exposed to gas, but on his anger 

toward the respondent. This anger prompted Mr. Clanton to 

tell Mr. Pilcher and the office secretary that he would only 

be back to work "when they got that place straightened out, 

fit to work," and that he would not be back "until he got the 

air cleared up, so it wouldn't hurt my eyes again" (Tr. 50, 

65). As a matter of fact, Mr. Clanton admitted that he was 

still angry about the incident, and that he intended to stay 

off "until they got this condition abated" (Tr. 50-51). I 

take note of the fact that although Mr. Clanton claimed that 

he had been exposed to the same gas condition 2-days prior to 

April 30, "when it got so I couldn't stand it," he did not 

report any injuries on those days, and that "what I done, was 

more or less to bring this to the attention to the Federal 

agencies that working conditions were intolerable" (Tr. 50) .. 

I also take note of the fact that Mr. Clanton returned to work 

on Saturday, May 2, 1987, and received premium pay for that 

day. 

Although I have concluded that Mr. Clanton's lost dcy of 

work on May 1, 1987, was not a direct result of his injury, 

1067 
this is not the sole determining factor as to whether or not 

his eye injury which occurred the day before was required to 

be reported to MSHA. The crucial question is whether or not 

Mr. Clanton suffered a reportable occupational injury within 

the meaning of MSHA's mandatory reporting regulations. An 

"occupational injury" is defined as any injury which occurs at 

the mine for which medical treatment is administered. The 

term 11 injury11 has been construed by the Commission as "an act 

that damages, harms, or hurts," Freeman Mining Company, 

6 FMSHRC 1577, 1578-1579 (July 1984). 

In the instant case, Mr. Clanton's unrebutted testimony, 

which I find credible, indicates that he suffered severe eye 

pain and discomfort as a result of his exposure to hydrogen 

sulfide gas while working at the mine, and promptly sought 

treatment by going to the doctor. Under these circumstances, 

I conclude and find that Mr. Clanton's eye condition was an 

injury. The next question presented is whether or not the 

treatment received by Mr. Clanton constituted medical treatment or first-aid. A medically treated injury is considered 

to be a reportable occupational injury, regardless of any lost 

work days, but a first-aid injury is reportable, provided 

there are no lost workdays, restricted work activity or 

transfer because of the injury. 

With regard to the treatment of eye injuries, one factor 

in determining whether such treatment is medical treatment or 

first-aid treatment, is the use of prescription medication as 

part of the treatment. The use of a prescription medication 

is among the criteria for determining medical treatment, and 

the application of nonprescription medication is included 

among the criteria for determining first-aid treatment. 

The evidence adduced in this case reflects that the treatment received by Mr. Clanton on April 30, 1987, for his eye 

inflammation, or conjunctivitis, included the application of 

Neodecadron Ophthalmic Ointment. (See: Doctor's Report, 

May 5, 1987, exhibit P-2-2-B). The doctor's report of June 19, 

1987, also reflects that Mr. Clanton was treated with Neosporin 

Opthalmic Ointment, three times daily, and contrary to 

Mr. Dowling's assertion that no doctor's charges were received 

for any prescription medication for Mr. Clanton, the hospital 

bill apparently submitted to the respondent's insurance 

carrier, includes an emergency room charge in the amount of 

$14.25 ior deodecadron. (See: exhibits P-3-3A and P-3-3C). 

The Physicians Desk Reference, 42d Edition, 1988, 

published by Edward R. Barnnart, cited by the petitioner in 

its posthearing brief, is a standard reference source listing 

1068 
all prescription medications, and it is available at any 

public library. I take official notice of the information 

contained in this reference source with respect to the medication administered to Mr. Clanton. Neosporin Ophthalmic 

Ointment is listed at page 814 as a prescription medication, 

and the prescribed application is every 3 or 4 hours within a 

7-day period. Neodecadron Ophthalmic Ointment is listed at 

page 1376 as a prescription medication, and the prescribed 

application is "a thin coating 3 or 4 times daily." 

Although Mr. Clanton could not recall receiving a written 

prescription from the doctor for the medication in question, 

it seems clear to me that prescription medication was in fact 

used as part of his treatment, and the doctor's report of 

June 19, 1987, reflects that the Neosporin ointment was to be 

used three times daily. Mr. Clanton confirmed that after his 

eyes were flushed out at the emergency room, the doctor put 

some "salve" in his eyes and gave him the rest to use. 

Mr. Clanton stated that "I smeared it in there one more time" 

(Tr. 55). 

MSHA's bulletin guidelines at page 10 state that the use 

of prescription medication normally constitutes medical treatment, but that a single doze or application of a prescription 

medication given on a first visit merely for the relief of 

pain or as a preventive treat~ent for a minor injury should be 

considered first aid.· The available evidence in this case 

reflects that Mr. Clanton received more than a single dose of 

the prescribed medication used for the treatment of his eye 

injuries. Further, I find nothing in MSHA's regulatory definitions of "first-aid" or the criteria for the treatment of eye 

injuries that even mentions or suggests single or multiple 

doses of prescription medication. 

In view of the foregoing, and after careful consideration 

of all of the available evidence in this matter, I conclude 

and find that Mr. Clanton's eye injuries constituted a reportable occupational injury, and that the treatment he received 

for his condition constituted medical treatment rather than 

first-aid treatment. I also conclude and find that the respondent's failure to report the injury in question constituted a 

violation of cited section 50.20, and the citation is therefore AFFIRMED. 

With regard to the respondent's "doubtful case" defense, 

although one may agree that MSHA's guidelines concerning a 

mine operator's judgment and discretion in determining whether 

an employee's lost work day is attributable to an injury, the 

introduction of the term "single dose" in the discussion of 

1069 
prescription medication, and the reference to ointments and 

~alves as part of any first-aid treatment, without any 

specific reference to whether they are prescription or nonprescription, are somewhat ambiguous, the guideline instruction 

round on page 34 is not. It specifically states that a doubtlbl injury case should be reported. Under the circumstances, 

!~reject the respondent's "doubtful case" theory as an absoiute defense to the citation, but have considered it in mitigation of the respondent's negligence. 

~ignificant and Substantia1 Violation 

~bise Citation No. 2865785 

In this instance, Inspector Spruell made a finding that 

the citation was significant and substantial. As a result of 

His dosimeter noise test, he found that the jumbo drill operator was exposed to noise levels which exceeded the allowable 

limit by 1,867 percent, which was equivalent to an 8-hour 

exposure of 111 dBA's. The jumbo drill was equipped with a 

left and right drill, one of which had a muffler installed, 

while the other one did not. The sound level which the 

inspector measured with a sound level meter while both drills 

were in operation indicated that the drill operator was 

exposed to continuous noise levels at 118 dBA's. The noise 

exposure in both instances was well over the allowable limit 

of 90 decibels. 

A "significant and substantial" violation is described in 

section 104(d)(l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly 

designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a rea-

~onable likelihood that the hazard contributed to will result .H an injury or illness of a reasonably serious nature." 

~~ment Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 

19 81) . 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "signifidant and substantial" as follows: 

iUll. 

In order to establish that a violation of 

a mandatory safety standard is significant and 

1070 
substantial under National Gypsum the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the language of section 104(d)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

St"eel Mining Company, Inc., 6 F~SHRC 1573, 

1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

Inspector Spruell's significant and substantial finding 

was based on his belief that the noise levels to which the 

drill operator was being exposed was such as to ma~e it reasonably likely that he would suffar some hearing loss. The 

inspector made a gravity finding of "highly likely" and that a 

"permanently disabling" injury of illness could reasonably be 

expected because of the noise level exposure to the drill operator. Although Mr. Spruell stated on the face of the citation 

that "personal hearing protection was being worn," he explained 

that he made that statement to give the respondent the benefit 

of the doubt since the drill operator was wearing protective 

ear muffs most of the time. However, when he observed the 

1071 
drill operator with the drill in operation, he was not wearing 

his personal ear protection. 

MSHA's noise expert Brayden testified that although the 

installation of the muffler on the drill reduced the operator's 

noise exposure, the dosimeter reading of 1,867 percent of the 

allowable noise exposure would indicate that the operator was 

losing his hearing to a significant degree even if he were to 

wear his ear muffs all day. In her opinion, the drill operator 

would need to wear ear plugs as well as ear muffs to protect 

his hearing. 

In view of the unrebutted testimony of Inspector Spruell 

and Ms. Brayden, which I find credible and probative, I conclude and find that the noise exposure levels to which the 

drill operator was being exposed presented a hazard to his 

hearing capability, and that such noise level exposures would 

reasonably likely contribute to a serious loss of hearing. 

Accordingly, the inspector's significant and substantial finding IS AFFIRMED. 

History of Prior Violations 

MSHA's civil penalty assessment computer print-out for 

the respondent's Annabel Lee Mine for the period May 28, 1985 

to May 27, 1987, reflects that the respondent paid penalty 

assessments in the amount of $94 for three section 104(a) citations (exhibit P-4). The computer print-out for the Denton 

Mine for the period June 17, 1985 to June 16, 1987, reflects 

civil penalty assessment payments in the amount of $74 for two 

section 104(a) citations. I conclude and find that the respondent has a good compliance record, and I have taken this into 

consideration in the civil penalties assessed for the violations which have been affirmed in these proceedings. 

Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business 

The parties stipulated that the respondent's Denton and 

Annabel Lee Mines are small mining operations, and I adopt 

these stipulations as my findings on this issue. The parties 

also stipulated that the proposed civil penalty assessments 

for the violations in question will not adversely affect the 

respondent's ability to continue in business. I find and 

conclude that the payment of the civil penalty assessments for 

the violations which have been affirmed in these proceedings 

will not adversely affect the respondent's ability to continue 

in business. 

1072 
Good Faith Compliance 

The record establishes that all of the violations were 

timely abated in good faith by the respondent. I have taken 

this into consideration in the assessments made for the violations in question. 

Negligence 

I conclude and find that all of the violations which have 

been affirmed in these proceedings resulted from the respondent's failure to exercise reasonable care. Accordingly, I 

adopt the inspector's moderate negligence findings with 

respect to all of the citations as my negligence findings and 

conclusions on this issue. 

Gravity 

With the exceptiop of "S&S" noise Citation No. 2865785, 

the inspector found that all of the remaining noise citations 

were non-"S&S", and that any injury or illness would be 

unlikely. They were all assessed as "single penalty" citations. He made the same findings for reporting Citation 

No. 2865780. I concur in these findings, and find that with 

the exception of "S&S" noise Citation No. 2865785, which I 

find was serious, the remaining violations were non-serious 

and not likely to result in any serious injuries. 

Civil 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 that the following civil penalty assessments are reasonable and appropriate for the violations which 

have been affirmed in these proceedings: 

Docket No. LAKE 88-4-M 

Citation No. Date 30 C.F.R. Section Assessment 

2865757 05/28/87 57.5050(b) $ 20 

2865758 05/28/87 57.5050(b) $ 20 

2865759 05/28/87 57.5050(b) $ 20 

2865785 05/28/87 57.5050 $ 85 

1073 
Docket No. LAKE 88-22-M 

Citation No. Date 30 C.F.R. Section Assessment 

3058584 06/17/87 57.5050Cb) $ 20 

3059585 06/17/87 57.5050(b) $ 20 

Docket No. LAKE 87-85-M 

Citation No. Date 30 C.F.R. Section Assessment 

2865780 05/27/87 50.20 $ 20 

ORDER 

The respondent IS ORDERED tq pay the civil penalties 

assessed in these proceedings within thirty (30) days of these 

decisions and orders. Upon receipt of payment by the petitioner, these proceedings are dismissed. 

/t~d~~ Gelorge/,i. Koutras 

Administrative Law Judge 

Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

Vic A. Evans, General Manager, and T. M. Dowling, Safety and 

Industrial Relations Director, Ozark-Mahoning Company, P.O. 

Box 57, Rosiclare, IL 69282 (Certified Mail) 

/f b 

1074 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KEN-MOR STONE, INC., 

Respondent 

AUG 191988 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 88-83-M 

A.C. No. 15-00104-05518 

V Quarry 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN , 

for Petitioner; 

H. Davis Sledd, Esq., Lexington, KY, for Respondent 

Before: Judge Fauver 

This civil penalty case went to hearing on July 12, 1988, at 

Lexington, Kentucky. After the hearing, the parties had a 

settlement conference and proposed a settlement reducing the 

proposed penalty from $500 to $450 and modifying Citation/Order 

No. 2861409 to delete the allegation of a "significant and 

substantial" violation. 

This decision confirms the bench decision approving the 

settlement at the close of the hearing. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and Respondent shall pay the approved 

penalty of $450 within 30 days of this decision. 

Distribution: 

lt)~>-fwv~ William Fah~er Administrative Law Judge 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

H. Davis Sledd, Esq., wyatt, Tarrant & Combs, 1100 Kincaid 

Towers, Lexington, KY 40508 

1075 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 191988 

GARY L. McCURDY, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

HELVETIA COAL COMPANY, 

Respondent 

Docket No. PENN 88-254-D 

MSHA Case No. PITT CD 88-16 

Lucerne No. 6 Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

By letter received August 12, 1988, Complainant Gary L. 

Mccurdy, states that he no longer wishes to pursue this matter. 

Under the circumstances, this case IS DISMISSED. 

/_£/_,,A//?~ {ft~~outras · 

Administrative Law Judge 

Distribution: 

Mr. Gary L. Mccurdy, 163 Coy Street, Homer City, PA 15748 

(Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, Professional Corporation, 

57th Floor, 600 Grant Street, Pittsburgh, PA 15219 

(Certified Mail) 

/fb 

1076 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ARNOLD SHARP, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 191988 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. KENT 88-109-D 

MSHA Case No. BARB CD 87-53 

BIG ELK CREEK COAL COMPANY, 

Respondent No. 1 Surface 

Appearances: 

Before: 

DECISION 

Robin Webb, Esq., Hazard, Kentucky, for the 

Complainant; 

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, 

Louisville, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

by the complainant against the respondent pursuant to section 

105(c) of the Federal Mine Safety and Health Act of 1977. The 

complainant filed an initial complaint with the Secretary of 

Labor, Mine Safety and Health Administration (MSHA), Hazard, 

Kentucky, Sub-district Office, on September 14, 1987. In a 

signed statement executed by the complainant on that date, he 

made the following claims of alleged discrimination: 

I feel that I have been discriminated by 

Big Elk Creek Coal Co., Inc., in that Judge 

Fauver order Big Elk Creek Coal Co., Inc., to 

reinstate me to the same position I had held 

prior to filing Discrimination Case No. 

BARB-CD-86-49, at the same rate of pay, status 

and all other benefits, as I would have attained 

had I n.ot been discharged on May 28, 1986. 

Before my discharge on May 28, 1986, I was a 

rock truck driver working the day shift and 

making $9.50 per hour. Since my reinstatement 

on September 8, 1987, I have been doing common 

1077 
labor. jobs (helping mechanic, helding oiler, 

cleaning up around the mine} on the night shift 

making $8.00 per hour. At the time I was 

reinstated, there was a rock truck driver position open, but they hired another man for that 

job. 

I have also asked management about my 

annual refresher training, newly-employed, 

experienced miner training and new task training. All management would say was they would 

see about it. 

I have not received any type training in 

the last 15 months. 

The Secretary of Labor, Mine Safety and Health Administration, conducted an investigation of the complaint and found no 

evidence of discrimination. The complainant was advised of this 

decision by letter dated April 4, 1988, and he filed his pro se 

complaint with the Commission. In a letter filed with the-- ~ 

Commission on April 12, 1988, the complainant alleged that as a 

result of his prior discharge by the respondent, his work record 

and ability to continue employment as a rock driver have been 

"destroyed," that his credit standing has been adversely affected, 

and that he has suffered certain unspecified "damages" for which 

he seeks compensation. 

The respondent filed a timely answer denying that it _has 

discriminated against the complainant. The respondent asserted 

that the complaint fails to state a claim upon relief can be 

granted under the Act, and it took the position that some or all 

of the allegations made by the complainant were settled or 

resolved in connection with a prior case involving these same 

parties. See: Arnold Sharp v. Big Elk Creek Coal Co., Inc. 

9 FMSHRC 1261 (July 1987) , decision by Judge William Fauver on 

July 22, 1987; 9 FMSHRC 1668 (September 1987}, Supplemental 

Decision issued by Judge Fauver on September 15, 1987; and 

9 FMSHRC 1822 (October 1987}, Final Order issued by Judge Fauver. 

A hearing was convened in Pikeville, Kentucky on August 10, 

1988, and the parties appeared pursuant to notice. Although the 

complainant filed his complaint pro se, he subsequently retained 

counsel to represent him approximately 10-days prior to the 

commencement of the hearing. 

1078 
Discussion 

Prior to the taking of any testimony in this case, counsel 

for the parties requested an opportunity to confer with each 

other, and it was granted. In addition, a pretrial conference 

was conducted to address the issues and remedial claims raised 

by the complainant. During these discussions, respondent's 

counsel reasserted his prior claim that the complainant was 

attempting to relitigate matters which were before Judge Fauver 

in the prior case, and that these matters were resolved by a 

prior settlement between the parties. As an example, respondent's counsel pointed out that contrary to the complainant's 

claim, he is in fact employed by the respondent as a truck 

driver, at the prevailing mine wage rate, and that his present 

employment status is in compliance with the terms of the prior 

settlement and Judge Fauver's Supplemental Decision of 

September 15, 1987. 

During the course of the pretrial conference, the complainant stated that he has filed at least one separate additional discrimination complaint against the respondent (Tr. 7). 

At the conclusion of the conference, complainant's counsel 

requested to withdraw the instant complaint, and stated that 

"we plan to proceed on in other avenues" (Tr. 6). Respondent's 

counsel did not object to the request to withdraw the complaint, 

and it was granted from the bench (Tr. 6). 

ORDER 

The complainant's request to withdraw his complaint IS 

GRANTED, and this case IS DISMISSED. 

/,I// ' // -_/---- - -~// /(}/~/ />tJ'/r/{::1,t,,,.. K~u tr as 

AdmiKistrative Law Judge 

Distribution: 

Robin Webb, Esq., P.O. Box 1528, Hazard, KY 41701 (Certified Mail) 

Edwin S. Hopson, Esq., Wyatt, Tarrant & Combs, 2600 Citizens 

Plaza, Louisville, KY .40202 (Certified Mail) 

/fb 

1079 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD AUG 191988 

BALTAZAR MADRID, 

Complainant 

v. 

KAISER COAL CORPORATION, 

Respondent 

DENVER. CO 80204 

DISCRIMINATION PROCEEDING 

Docket No. WEST 87-170-D 

DENV CD 87-2 

Sunnyside No. 2 Mine 

DECISION 

Appearances: Dave Maggio and Don Huitt, East Carbon City, Utah, 

for Complainant; 

Jathan Janove, Esq., and Diane Banks, Esq., Fabian 

and Clendenin, Salt Lake City, Utah, 

for Respondent. 

Before: Judge Lasher 

This proceeding arises under Section 105(c)(3) of the 

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

~' (1982> (herein the Act). Complainant's initial complaint 

with the Labor Department's Mine Safety and Health Administration 

(MSHA) under Section 105(c)(2) of the Act was dismissed. 

Contentions of the Parties. 

Complainant Madrid, in his complaint with MSHA (Ex. D-16) 

alleged: 

Since September of 1970 I have been e.'llployed at the Kaiser 

Coal Corp. mines (formerly known as Kaiser Steel Corp.) as 

a surface employee. On October 31, 1986 management 

illegally laid me off for lack of training. A summary of 

this discriminatory action follows: 

On October 22, 1986 the management of Kaiser Coal Corp. of 

Sunnyside had a reduction and realignment of the workforce. 

At this time I was informed that I would be realigned as an 

underground tirnberman. I expressed my concern about lack of 

training for underground work. Later I was informed that I 

would be given the 40 hours new miner training before going 

underground and in the meantime I was to be given a job as a 

tipple utilityrnan. ~/ 

±I Although this allegation implies that the assignment to the 

tipple utilityman job was temporary, the evidence of record 

indicates that Madrid did not want to be assigned underground and 

that the tipple assignment was, as of October 24, permanent (Ex. 

D-11, T. 110, 132-136, 137, 145, 154, 157). 

1 () Q() 
Management on October 23, 1986 told me that I was scheduled 

to start my training on October 27, 1986 at the College of 

Eastern Utah in Price, Utah and until then was to work as a 

tipple utilityman. 

On October 24, 1986 management wrote me a letter informing 

me that I would not be going to the 40 hour training but 

would be left on the tipple. 

On October 31, 1986 Kaiser Coal Corp. of Sunnyside had yet 

another reduction and realignment of the workforce and at 

this time I was told that there was no available jobs on 

the surface and I didn't have the training to work underground so I was to be laid off. 

Thus, Madrid, a lineman (a surface position), contends that 

on October 31, 1986, Kaiser illegally laid him off "for lack of 

(underground) training." In his post-hearing brief, this contention is expanded: "They openly discriminated by not providing 

Mr. Madrid his forty (40) hours training under Section 115 2/ of 

the Act and by so doing, broke the law again under 105(c) of the 

Same Act." In terms of discriminatory motivation, Madrid contends that "Kaiser did not want to provide training to anyone 

including (himself)". Complainant Madrid referred to the 

decision in Secretary and UMWA v. Kitt Energy Corporation, 8 

FMSHRC 1342, (September .1986; ALJ) at the hearing CT. 37, 155) as 

2/ Section 115, relating to "Mandatory Health and Safety 

~raining", in pertinent part provides: 

Ca) Each operator of a coal or other mine shall have a 

health and safety training program which shall be approved 

by the Secretary. The Secretary shall promulgate regulations with respect to such health and safety training 

programs not more than 180 days after the effective date of 

the Federal Mine Safety and Health Amendments Act of 1977. 

Each training program approved by the Secretary shall provide as a minimum that-

" ( l) new miners having no underground mining experience 

shall receive no less than 40 hours of training if they 

are to work underground. Such training shall include instruction in the statutory rights of miners and their 

representatives under this Act, use of the self-rescue 

device and use of respiratory devices, hazard recognition, 

escapeways, and walk around training, emergency procedures, basic ventilation, basic roof control, electrical hazards, first aid, and the health and safety aspects 

of the task to which he will be assigned. 

1081 
supportive of his position. As will be discussed subsequently, 

this decision was recently reversed by the Federal Mine Safety 

and Health Review Commission (herein Commission). 

Respondent Kaiser denies that the 40-hour underground 

training requirement of the Act's Section llS(a) is a right 

guaranteed by § 105Cc) to miners who would otherwise be laid off 

3/ and contends that even if it were, Madrid failed to establish 

a prima facie case of discrimination. Kaiser maintains that its 

decision to layoff Madrid resulted from its understanding that 

Madrid lacked the 45-day underground working experience required 

by Article XVI of its Labor Agreement and had nothing to do with 

the 40-hour training requirement of the Act. Kaiser also 

maintains inter alia that Madrid did not complain about or 

attempt to exercise a right under the Act until approximately 3 

weeks after he was laid off; that the complaint that was made by 

Madrid was for the purpose of keeping himself in his surface job; 

that Madrid engaged in no "protected activity"; that it (Kaiser) 

had no hostility toward the 40-hour training requirement; and 

that Madrid by choosing to remain on the surface opted for the 

more desirable surface work over the job security that would have 

resulted had he sought underground positions. 

Findings 

Complainant, Baltazar Madrid, age 49 at the time of hearing, 

was hired by Kaiser on Sept~nber 9, 1970 CT. 46, 134-136), and 

until October, 1986, was so employed as a lineman ---as 

distinguished from electrician CT. 173-174, 183-185, 207, 209, 

239, 243-245, 299). The lineman position is on the surface-- as 

distinguished from an underground position-- and Mr. Madrid 

normally worked the dayshift CT. 54, 105, 236, 246). Mr. Madrid, 

throughout his employment with Kaiser as well as a previous 

6nployer was a lineman and he did not attempt to obtain an 

underground classification even though this would have helped 

protect him against a layoff in a reduction-in-force CT. 105-107, 

134-138, 269-270). 

Kaiser underwent two separate layoffs (sometimes referred to 

as realignments, reductions-in-force, or RIFs) in October, 1986, 

the first on October 22 and the second on October 31 CT. 93-94, 

99). On October 22, 58 employees were laid off and 40 were 

realigned to other jobs. On October 31, 46 more employees were 

laid off and 23 more realigned (Exs. D-1, D-2; T. 205). Kaiser's 

total hourly workforce was reduced from 262 to 158 employees by 

these 2 RIFs. 

ll Subsequent to filing of briefs the Commission's decision on 

review in Kitt Energy, 10 FMSHRC (July 15, 1988) issued 

which sustained this view. 

1082 
At the subject mine, surface jobs are generally considered 

more desirable than underground positions CT. 101, 132). 

In the October 22 layoff, Madrid was not laid off but was 

assigned (realigned> to an underground position --timbe~an-- and 

he immediately CT. 190-191) filed a grievance alleging that 

Kaiser had no right to eliminate his surface position as lineman 

CT. 101, 131, 261-262). The record clearly indicates that Mr. 

Madrid was opposed to working underground CT. 53-54, 63, 104, 

131, 137, 145,· 191, 262) and complained that he had insufficient 

underground experience CT. 190-193; Ex. D-1, p. 4). 

Mr. Madrid testified: 

Q. If you can have your choice, you'll stay on the surface? 

A. Sure. 

Q. And at the time you filed a grievance saying that lineman 

job was improperly eliminated; right? 

A. Right. 

Q. And your goal at that time was to renain as a lineman on 

the surf ace? 

A. sure. 

Q. Now, after you were realigned to tipple, okay, but before 

you were laid off, you didn't complain to anyone, did you, ·that 

you should have stayed as a timberman as opposed to a tipple 

utility man? 

A. No, I didn't. 

CT. 54). 

After Madrid filed the grievance (after the October 22 

layoff and before the October 31 layoff), Jack w. Roberts, 

Kaiser's Manager of Human Resources, reviewed Madrid's file and 

work experience and determined that a mistake had been made in 

assigning Madrid underground to the timberman position since such 

records indicated Madrid had not previously worked underground (T. 

101, 102, 104-105, 112, 131-132, 136). 

According to Roberts, who was the person responsible for 

realigning employees during the layoffs CT. 95-97, 138, 257), 

placing Madrid underground after the first-- October 22-- layoff 

contravened Article 16 CXVI) of the union contract since Madrid 

1083 
did not, according to his records, have 45 days under4round 

experience CT. 102-103, 112, 115, 134-136, 138-142). _/ 

After Mr. Roberts determined that Mr. Madrid's grievance had 

validity insofar as Mr. Madrid did not have suitable underground 

experience CT. 100, 140, 145) and should not have been assigned 

underground, Mr. Roberts allowed Madrid to bump to the position 

of tipple utilityman on the surface which had the effect of 

replacing an employee with less seniority who held such 

position--- one Willie Naranjo. ~/ Naranjo, who had underground 

experience (T. 106-107, 154), was moved to the timberrnan position 

which Madrid did not want (T. 101-109, 129-130, 133). Moving 

Madrid to Naranjo's surface position at this time was adverse to ' 

Naranjo CT. 106, 132). 

4/ Thus, Article XVI, Section Cf) of the National Bituminous 

Coal Wage Agreement of 1984 (Ex. P-12) governing the labor 

relationship between Kaiser and UMWA at all times material 

herein, provided: 

New Inexperienced Employees at Underground Mines 

No new inexperienced Employee in an underground mine hired 

after the date of this Agreement with less than forty-five 

(45) working days prior underground mining experience shall 

operate any mining ~achines at the face, or work on or 

operate any transportation equipment, mobile equipment or 

medium or high voltage electricity. All such new Employees 

shall always work in sight and sound of another Employee 

for a period of forty-five C45) days. During this period 

the new Employee shall be classified as a Trainee in order 

to permit him to gain maximum familiarity with the work of 

the mine as a whole, but to minimize exposure to hazards 

until more extensive experience in underground mining is 

achieved. At the end of the forty-five (45) working day 

period, he shall be eligible to bid on any vacancy that 

arises. Nothing in this section shall authorize any 

practice more permissive than that established by any applicable law or prior custom and practice. 

~/ Thus, following Madrid's objection and Robert's re-evaluation 

of his underground experience, the following letter (Ex. D-11) to 

Madrid from Kaiser's General Manager, C.W. McGlothlin, Jr., dated 

October 24, 1986, was hand delivered to Madrid on the same date: 

Dear Balt: 

It has been determined that you did not have the ability 

to step into and perform the work of available jobs at the 

time of the 10-22-86 layoff. Therefore, in accordance with 

1084 
At the hearing, Madrid in some 9ontradiction to his original 

objection to being assigned underground, claimed that he had 

sufficient underground service (T. 286), although such account 

was extremely general (T. 50) and the amount of such time and the 

dates thereof are not subject to determination because of such 

vagueness. 

The arbitrator, in his decision rejecting Mr. Madrid's 

grievances (Ex. D-1), incisively explained why Madrid's claim of 

45 working days underground should be rejected: 

The second reason advanced by the Union as to the nonapplicabili ty of Article XVI, Section (f) to the grievant 

was the claim that he actually had 45 working days prior 

underground mining experience over the course of his many 

years working as a surface Employee, and he would therefore 

not have to be classified ~s a Trainee if he worked underground. While the Maintenance Supervisor disputed many of 

the particular underground work assignments that the 

grievant claimed to have participated in, the weight of the 

evidence here was to the effect that, on a cumulative basis 

over the course of his 16 years at the mine, all of the individual hours on different days, when added together, 

would amount to 45 days sent underground. The question, 

however, is whether it is proper to consider that kind of 

work experience as _meeting the requirements of Article XVI, 

Section (f). In my view, the contractual requirement of 45 

working days prior underground mining experience is not met 

in such a casual manner. Crediting an hour or two here 

and there, along with some eight hour days which may be 

separated by weeks, months or even years, so as to add up to 

a total of 45 days, when there is not indication that there 

was ever any briefing on such things as the. underground 

facilities, the procedures for entering and leaving the 

mine, the procedures regarding the transportation of Emfn. 5 continued 

Article XVII, Section (c) you are realigned to the job of 

Tipple Utilityman. Please report to Jim Eaquinto on Monday, 

October 27, 1986, for day shift. 

Madrid never actually worked in the timberman position 

underground, and he worked on the surface for the 2-day interim 

period between the "mistaken" timberman assignment and his bumping into Naranjo's utilityman position (T. 106, 112, 133, 145, 

191, 228-230). 

1085 
ployees and materials, the escape and emergency evacuation 

plans, a review of the mine map and the location of abandoned and dangerous areas, instructions in the use, care and 

maintenance of the applicable self-rescue device, instructions in the detection of methane, or any of the 

hazards or dangers peculiar to the underground operations, 

seems to be so inconsistent with the recognition that the 

health and safety of the Employees are the highest 

priorities of the parties and with their expressed agreement 

that the establishment of effective training programs was 

essential to the safe and efficient production of coal that 

it would defeat the intent of the parties in establishing 

minimum standards for the training of Employees who are inexperienced when it comes to the peculiar hazards of underground mining. It is apparent that the. grievant here did 

not consider himself an experienced underground Employee, 

even though he had gone underground on a number of occasions 

over the course of his many years at the mine. He was the 

one who first expressed his concern about his lack of training for underground work when he was realigned to a timberman position at the time of the first layoff and realignment 

on October 22, 1986, and the Company agreed with him that it 

was a mistake to have put him in an underground position. 

Such a casual and almost accidental or unintentional acquisition of the status of an experienced underground miner 

is so at odds with ·the intent and purpose of the safety and 

training provisions of the contract, provisions which were 

put into the contract at the Union's urging and for which 

the Union fought long and hard, that such a result could 

not have been intended. (emphasis added) 

The arbitrator concluded: 

Working on the surf ace does not expose an Employee to 

the same dangers as working underground, and the surface 

Employee does not get the kind of first-hand knowledge that 

the parties wanted Employees assigned underground to have 

before they worked on their own. 

I have no doubt that the grievant here had the necessary 

skill and the physical ability to perform the job duties of 

a timberman, but at the same time I believe that he has to 

be considered a anew inexperienced Employee within the meaning of Article XVI, Section Cf) of the contract. That 

necessarily means that he would have to be classified as a 

Trainee during the first 45 days he was assigned to work 

underground and could not be classified as a Timberman and 

assigned to perform all of the duties of a timberman. The 

contract itself precludes his being considered as having 

1086 
the present ability to step into and perform all of the 

duties of any underground job except that of Trainee. The 

Company's failure to recall him to the tirnberman job on 

December 15, 1986 therefore would not be considered a violation of his seniority rights, and his grievance claiming 

such a violation must consequently be denied. 

Mr. Roberts described the decision-making process which led 

to Mr. Madrid's being laid off in the October 31 RIF as follows: 

A. Well, we went through the same procedure, and that was 

before he couldn't be considered for underground jobs because he hadn't worked underground. The job that he was 

put on, unfortunately, the tipple utility job, was being 

reduced. There were two jobs and they eliminated one. The 

other man was senior to Mr. Madrid, so, as a consequence, 

he was the one eliminated. 

Well, what we did, again, he was not able to take any of 

the underground jobs, so we started with the least senior 

person still working on the surf ace and went back up the 

line to see if we could find a job that he could do where 

he was senior to the person holding that job. And there was 

no such job. As a consequence, he was laid off. 

CT. 118-119). 

According to Mr. Roberts and other Kaiser management 

witnesses, even if Mr. Madrid had, or had been given, the 

40-hours training required by the Act, he could not have been 

placed underground because of the 45-day underground work 

requirement of Sectio.n XVI< f) of the Wage Agreement ( T. 120, 

139-140, 147, 151, 165, 267). 

Members of Kaiser management, including Roberts and the 

operations manager, did not know that there was to be a second 

RIF on October 31, 1986, until several days after the October 22 

RIF (T. 101-107, 132, 258). 

When Madrid was first realigned to the underground timberman 

position in the October 22 reduction, management intended to give 

him the 40-hour training required by the Act (T. 197, 259-261). 

After Madrid was laid off on October 31, 1986, he did not, 

for 3 weeks, list the timberman position on the "panel form" 

required under the Wage Agreement which would have entitled him 

to consideration for assignment to that position in the event of 

recall (T. 109-110, 156-157, 263). Under Article XVII (c) of the 

Wage Agreement, a laid-off employee is required to fill out a 

standard form within 5 days after being laid off, and among other 

things, indicate the "jobs he is able to perform and for which he 

wishes to be recalled." From such information, the Employer 

prepares a "panel" form. Thus Art. XVII(d) provides: 

1087 
Employees who are idle because of a reduction in the working 

force shall be placed on a panel from which they' shall be 

returned to employment on the basis of seniority as outlined 

in section Ca). A panel.member shall be considered for 

every job which he has listed on his layoff form as one to 

which he wishes to be recalled. Each panel member may revise his panel form once a year. 

Management officials held a meeting prior to each of the 2 

layoffs to implement such CT. 257-258). In the second meeting 

for the October 31 layoff, which .was held Cl) after Madrid had 

filed his grievance, C2) protested going underground in the 

timberman's position, and C3) had been reassigned to the tipple 

utilityman position on the surface, the application of the 45-day 

underground working experience requirement of the Wage Agreement 

came up. This process was described by Kaiser's Operations 

Manager, Ronald o. Huges as follows: 

A. It was brought up that as we went through the people 

had been displaced, there was a tipple utility position 

that was reduced; therefore, Balt had to be realigned once 

again. When we came to Balt's position in the seniority 

roster, the only position that was available was underground 

timberman's position, and it came up then that Balt was not, 

by contract, a trained miner; therefore, he went to the 

layoff. 

Q. Now, in this meeting or any other time prior to the 

layoff, was the point made that he did have 45 days working 

experience, as required by Article 16? 

A. That he did have? 

Q. That he did have. 

A. No. 

Q. Throughout the period of time up to his layoff, what 

was your understanding as to whether he did or did not have 

experience? 

A. I'd understood that he did not have the underground 

experience. 

CT. 264) 

The record indicates and it is found that Madrid did not 

have the 45 days of underground experience contemplated and 

required by the Wage Agreement and this was Kaiser's basis and 

business justification for laying him off in the October 31 RIF 

and for not realigning him to an underground position at that 

time ahead of others having such experience. 

1088 
Discussion 

In order to establish a prima facie case of prohibited 

discrimination under Section 105(c) of the Act, a complainant 

bears the burden of proving Cl) that he engaged in protected 

activity and (2) that the adverse action complained of was 

motivated in any part by that activity. Secretary on behalf of 

David Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 

(October 1980), rev'd on other grounds sub nom. Consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on 

behalf of Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 817-18 (April 1981). see also Eastern Assoc. Coal Corp. v. 

FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987), Donovan v. Stafford 

Constr. Co., 732 F.2d 954, 958-59 CD.C. Cir. 1984); Boich v. 

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically 

approving Commission's Fasula-Robinette test). Cf. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-413 Cl983) 

(approving nearly identical test under National Labor Relations 

Act.) 

If the complainant does not establish that he engaged in a 

protected activity, the discrimination complaint must fail. The 

insistence of a complainant on the right to be provided training 

is activity protected by the Act. Thus, the question arises 

whether under the Mine Act Complainant Madrid had a protected 

right to the training a~ issue here. 

In Peabody Coal Co., 7 FMSHRC 1357, 1363 (September 1985), 

and Jim Walter Resources, 7 FMSHRC 1348 (September 1985), aff'd 

sub~ Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 

1987), the Commission concluded that mine operator policies to 

bypass for rehire laid-off individuals because those individuals 

lacked current safety and health training required by the Mine 

Act did not constituted discrimination under the Mine Act. The 

Commission determined that Section 115 of the Act grants training 

rights to "new miners" and that laid-off individuals do not 

become entitled to the training rights of Section 115 until they 

are rehired as miners. Thus, since there is no statutory right 

to operator--provided training for those on lay off status, an 

operator's refusal to rehire a laid-off individual due to lack of 

required training does not violate the Mine Act. 

In Peabody and in Jim Walter the Commission stressed that 

the Mine Act is a health and safety statute, not an employment 

statute. The Commission noted that in enacting Section 115 

Congress was concerned with preventing "the presence of miners 

••• in a dangerous mine environment who have not had ••. training 

in self-preservation and safety practices." S. Rep. No. 181, 

95th Cong., 1st Sess. 50 (1977), reprinted in Senate Subcommittee 

1089 
on Labor, Committee on Human Resources, 95th Cong., 2d Sess., 

Legislative History of the Federal Mine Safety and Health Act of 

1977, at 637-38 (1978). The Commission determined that the 

rights of particular laid-off individuals to recall, including 

the extent to which an operator can favor for recall fully 

trained persons over persons with greater length of service, 

properly are within the sphere of collective bargaining and 

arbitration. 7 FMSHRC at 1364; 7 FMSHRC at 1354. 

As noted hereinabove, contrary to the position asserted by 

Complainant Madrid that he enjoyed a statutory or legal right to 

the 40-hour underground training referred to in Section 115 of 

the Act which purportedly would have entitled him to realignment 

to an underground position after the October 31, 1986 layoff, the 

Commission's recent decision in Kitt Energy, supra, emphasizes 

that a mine operator in implementing a reduction-in-force is not 

in violation of the discrimination provisions of the Act by not 

placing surface miners in underground positions where they failed 

to meet the underground experience requirements of Section 115, 

and by placing in such underground positions persons who by 

training or experience fully met Section 115 requirements. Thus, 

in pertinent part the Commission held: 

We recognize that the complainants in the instant case, 

unlike the complainants in Peabody, were "miners" at the 

time the alleged act of discrimination occurred. This 

distinction, however, does not require a different result 

because in the crucial and controlling respect, this case 

and Peabody are the same. In both cases, the operator chose 

for placement in underground mining positions persons who 

by training or experience fully met the training requ1rement 

of Section 115 of the Act and the Secretary's implementing 

regulations. In placing trained miners underground the 

operator did not violate the language of the Mine Act or 

the safety and health objectives of the training requirements. To the contrary, the Act's purpose was fulfilled. 

In addition, no miner was discharged or otherwise discriminated against either because of a refusal to work without 

having the required training or because of a withdrawal 

from the mine pursuant to an order issued by the Secretary 

under Section 104(g) of the Act due to a lack of training. 

See 822 F.2d at 1147. In sum, the Secretary's argument 

that Section 115 of the Mine Act mandates that "training 

neutral" employment decisions be made by mine operators is 

just as wide of the mark in the present situation as it 

was in Peabody, and must be rejected here for the same 

reasons. 

In order to reach the result argued for by the Secretary 

and the UMWA, we would be required to go beyond the Act 

and examine the Wage Agreement. It is not the Commission's 

1090 
province, .however, to in.terpret the rights and obligations 

mandated by the Act through an interpretation of a private 

contractual agreement unless required to do so by the Act 

itself. Peabody, supra, 7 FMSHRC at 1364. In holding that 

the complainants as "miners" had the right to whatever 

training was required to continue their employment, the 

judge misperceived the proper focus of Section 115. To require an operator to train miners for underground work so 

that they, rather than other miners, would have the opportunity for continued employment would transform Section 115 

from a health and safety provision to an employment provision. This type of employment issue is appropriately 

resolved through the collective bargaining and grievance 

and arbitration process. Indeed, the issue of the validity 

of Kitt's experienced miner policy was pursued through the 

contractual grievance process and Kitt's position was 

upheld. 

Kaiser's witnesses, including Roberts who was the member of 

management primarily responsible for realignment and layoff 

decisions in the RIFs, convincingly established that the 

motivation for not placing Madrid in an underground position 

after the October 31 layoff was because of the application of the 

45-day underground experience requirement of the Wage Agreement--

not the Mine Act's 40-hour training requirement. 6/ Mr. Madrid 

was actually assigned underground after the f irst-RIF on October 

22, at which time his objective to remain as a lineman on the 

surface became clear. He immediately filed a grievance and 

raised the question as to his qualifications in terms of 

underground experience to work underground. At this time, .at his 

own instance, he was placed in the tipple utilityman position on 

the surface--bumping another miner from such position. When this 

transaction took place the record is clear that management had no 

knowledge or indication that a second RIF was coming on October 

31. Complainant failed to establish by the preponderance of the 

reliable and substantive evidence of record that Kaiser was 

~/ There is no persuasive or probative evidence in the record 

that Kaiser attempted to avoid the training requirements of 

Section 115. Contrary to Complainant's contention in this regard, i.e., that Kaiser removed Madrid from the timberman 

position to avoid such 40-hour training, when Kaiser realigned 

him to timberman after the October 22 RIF, it clearly planned to 

arrange for Madrid to receive such training CT. 48-49, 56, 104, 

116, 190-192, 197, 229-231, 259-261). There is no evidence of 

Kaiser management being antagonistic to the Mine Act's training 

requirement or that management personnel or other employees were 

advised to avoid or ignore such requirements (Ex. D-4, T. 57, 

172-173, 196-197, 230, 233-234, 260). 

1091 
motivated in its actions vis a vis Madrid from either hostility 

to the Act's training requirements or other discriminatory frame 

of mind. "!_! 

It is concluded that Complainant did not establish a 

violation under Section 105(c) of the Act and that the Complaint 

herein is without merit. 

ORDER 

Complainant having failed to establish Mine Act discrimination en the part of Respondent, his complaint is DISMISSED. 

~~;6 .. c.~ ?I· ~?<'.d;,~ fi. Michael A. Lasher, Jr. 

Administrative Law Judge 

21 Although at the hearing Madrid raised the question that one 

member of management, Pete Palacios, an outside Surface Superintendent, may have seen the layoffs as a means of retaliating 

against Madrid, there was no nexus established between any such 

purported animosity on Palacios' part and any safety activity on 

Madrid's part or connection to the Act's training requirements. 

A}ain, the record is clear that Palacios played no part in the 

personnel decisions (layoffs and realignments) made during the 

subject October RIFs. 

Distribution: 

~r. Baltazar Madrid, P.O. Box 646, East.Carbon City, UT 84520 

(Certified Mail) 

Mr. Dave Maggio, Recording Secretary, United Coal Mine Workers, 

Local 9958, and Mr. Don Huitt, P.O. Box 275, East Carbon City, UT 

84520 (Certified Mail) 

Jathan Janove, Esq., Diane Banks, Esq., Fabian & Clendenin, 215 

So~th State Street, Suite 1200, Salt Lake City, UT 84111 

(Certified Mail) 

/bls 

1092 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

·AUG 191988 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

GARDEN CREEK POCAHONTAS 

COMPANY, 

Res ponde_n t 

Docket No. VA 88-9 

A.C. No. 44-04517-03595 

Docket No. VA 88-10 

A.C. No. 44-04517-03596 

Docket No. VA 88-11 

A.C. No. 44-04517-03598 

Virginia Pocahontas No. 6 Mine 

DECISION 

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia for 

Petitioner; • 

Marshall s. Peace, Esq., Assistant General Counsel, 

Island Creek Corporation, Lexington, Kentucky for 

Respondent. 

Before: Judge Melick 

These cases are before me upon the petitions for civil 

penalties filed by the Secretary of Labor pursuant to section 

l05Cd) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq., the "Act," charging the Garden Creek 

Pocahontas Company (Garden Creek) with 18 violations of the 

regulatory standard at 30 C.F.R § 50.20Ca> for the failure to 

report certain alleged occupational injuries to the Federal Mine 

Safety and Health Administration (MSHA). The general issue before 

me is whether Garden Creek violated the cited regulatory standard 

in any of these cases, and, if so, the appropriate civil penalty to 

be assessed in accordance with section llO(i) of the Act. 

At hearing the Secretary moved for the approval of a 

settlement agreement with respect to four of the citations at bar, 

Citation Nos. 2758998, 2759549, 2759650, and 2759655. She has 

submitted sufficient information to show that the proffered 

settlement is appropriate under the criteria set forth in section 

llO(i) of the Act. Accordingly an order will be incorporated in 

this decision approving the proposed settlement and directing 

payment of $80 in penalties for the cited violations. 

The specific issue before me in the 14 remaining citations is 

whether the injuries suffered by the miners were "occupational 

1093 
injuries" ~hich Garden Creek was required to report to MSHA 

pursuant to the regulatory standard at 30 C.F.R. § 50.20(a). That 

standard provides in relevant part as follows: 

Each operator shall maintain at the mine off ice a supply 

of MSHA mine accident injury and illness report form 

7000-1 ••• each operator shall report each accident, 

occupational injury or occupational illness at the mine 

••• the operator shall mail completed forms to MSHA 

within 10 working days after an accident or occupational 

injury odcurs or an occupational illness is diagnosed. 

The specific facts surrounding the alleged violations are not 

in substantial dispute and are set forth below: 

Citation No. 2758999 

Miner Leonard Mitchell was injured at the No. 6 Mine on 

September 14, 1987. He was attempting to lift a heavy object when 

he strained something in his lower eight side. As a result of this 

injury Mitchell visited a physician who diagnosed abdominal muscle 

strain, prescribed Flexeril 10 mga., Ca muscle relaxer), and 

applied heat to the affected area. 

Citation No. 2759648 

Miner Van E. Smith was injured at the No. 6 Mine on January 8, 

1987. He was apparently beating on a rock dust hose to loosen 

clogged dust, and accidentally got rock dust in his eye. As a 

result of this injury Smith visited a physician who diagnosed 

chemical conjunctivities in the left eye. The physician prescribed 

Poly-Pred for several days. 

Citation No. 2759651 

Miner Jerry L. Barrett was injured at the No. 6 Mine on March 

3, 1987. Barrett had bent over to pick up an object that was 

frozen to the ground and injured his shoulder. As a result of this 

injury Barrett visited a physician who diagnosed right 

intrascapular strain, and prescribed Soma Compound Ca pain reliever 

and muscle relaxer} and Darvocet Ca pain reliever).· 

Citation No. 2759652 

Miner Phillip Keene was injured at the No. 6 Mine on March 10, 

1987. Keene was tightening a bolt using his foot for leverage, and 

sprained his right knee. As a result of this injury Keene visited 

a physician who diagnosed right knee sprain, wrapped the knee in an 

Ace bandage and prescribed Motrin (a pain reliever). 

Citation No. 2759653 

1094 
Miner Kenneth R. Hicks ~as injured at the No. 6 Mine on March 

10, 1987. Hicks was attempting to lift a heavy object when he felt 

a pain in his right chest. As a result of this injury Hicks 

visited a physician who diagnosed musculoskeletal strain of the 

chest wall, took an x-ray, and prescribed Tylenol No. 3 Ca pain 

reliever) and Soma Compound Ca muscle relaxer and pain reliever). 

Citation No. 2759654 

Miner Bobby L. Richardson was injured at the No. 6 Mine on 

March 16, 1987. Richardson was attempting to remove a pipe from 

machinery when the pipe came loose and crushed his left index 

finger. As a result of this injury Richardson visited a physician 

who diagnosed a crushing injury to the left index finger, took an 

x-ray, cleaned and bandaged the finger, applied a cold pack, and 

prescribed Darvocet Ca pain reliever). Richardson had the 

prescription filled and used the medication. 

Citation No. 2759657 

Miner David Crouse was injured on May 5, 1987 at the No. 6 

Mine. Crouse accidently struck the back of his left hand with a 

hammer. As a result of this injury Crouse visited a physician who 

diagnosed a contusion of the left wrist and hand. The physician 

took an x-ray of the hand and prescribed Motrin C a pain reliever). 

Crouse had the prescription. filled and used the medication. 

Citation No. 2759659 

Miner Randall F. Skeens was injured at the No. 6 Mine on June 

24, 1987. As Skeens was exiting a bus he strained his back. As a 

result of this injury Skeens visited a physician who diagnosed 

musculo-skeletal strain. The doctor recommended rest, application 

of a heating pad, and prescribed Flexeril Ca muscle relaxer). 

Citation No. 2759658 

Miner Larry D. Hale was injured at the No. 6 Mine on May 8, 

1987. Hale was attempting to return a rock dust car onto the 

track with a bar when he strained his back. As a result of this 

injury Hale visited a physician who diagnosed acute· lumbosacral 

strain and prescribed Soma Compound Ca pain reliever and muscle 

relaxer). 

Citation No. 2288707 

Miner Linda Lester was injured at the. No. 6 Mine on February 

5, 1987. Lester was lifting cribs overhead to hand them to a miner 

standing on a ladder ana strained her back. Lester visited a 

doctor as a result of this injury. The doctor diagnosed left 

paralumbar muscle strain, recommended a heating pad and rest, and 

prescribed Nalfon 600 mg. C a pain reliever). 

1095 
Citation No. 2288708 

Miner Billy R. Lester was injured at the No. 6 Mine on May 20, 

1987. Lester had lifted a bucket and felt a sharp pain in his left 

shoulder. As a result of this injury Lester visited a doctor who 

diagnosed a sprain of the left shoulder, gave Lester a steroid 

injection and prescribed Motrin Ca pain reliever). Lester had the 

prescription filled and used the medication. 

Citation No. 2288709 

Miner Clarence Auville was injured on May 12, 1987 at the No. 

6 Mine. Auville apparently was lifting a motor when he developed 

pains in his right side. As a result of this injury Auville 

visited a physician who diagnosed acute back strain, x-rayed 

Auville, and prescribed Flexeril Ca muscle relaxer). 

Citation No. 2288711 

Miner Michael J. Lester was injured at the No. 6 Mine on 

September 1, 1987. While Lester was riding in a mine buggy he hit 

his head against the canopy and sustained a neck injury. As a 

result of the injury Lester visited a doctor who diagnosed a 

contusion to the head, severe sprain of the neck, and an axial 

compression injury of the neck. Lester was "given therapy" and was 

also x-rayed and given a prescription for valium Ca medication for 

management of "anxiety disorders" and also for the relief of 

skeletal muscle spasm). 

Citation No. 2759660 

Miner Harvey Keith Keene was injured at the No. 6 Mine on June 

22, 1987. Keene was lifting a bucket and apparently pulled a 

groin muscle. As a result of this injury Keene visited a doctor 

who diagnosed acute right groin muscle strain and applied an ice 

pack compress on the injured area with directions to apply a warm 

compress after 24 hours. The doctor prescribed Valium (a 

medication for management of "anxiety disorders" and for relief of 

skeletal muscle spasms). 

The parties also agreed to the following stipulations: 

With regard to each of the subject citations, the injury 

referred to in the body of the citation was to a miner 

and occurred at a mine, for the purposes of 30 C.F.R. § 

50.2(e). 

With regard to each of the subject citations, the 

medication referred to in the body of the citation was a 

prescription medication; a written prescription for that 

medication was given to the individual by a physician 

during the course of an office visit. 

1096 
With regard to Citation Nos. 2759654 and 2759657 (Docket 

No. VA 88-9), and Citation No. 2288708 (Docket No. VA 

88-11), it is stipulated that the prescription was filled 

and the medication was taken by the individual to whom it 

was prescribed. :r 

The injuries referred to in each citation were not in 

fact reported to MSHA within 10 working days of 

occurrence, pursuant to 30 C.F.R. §§ 50.20 and 50.20-1. 

Respondent abated each violation by completing MSHA Form 

7000-1 entitled "Mine Accident, Injury, and Illness 

Report," and mailing it to MSHA. 

MSHA Guidelines (government Exhibit Nos. 15 and 16) from 

1980 and 1986 constitute MSHA's interpretations of the 

Part 50 regulatory reporting requirements. 

The injuries referred to in the subject citation, if they 

are in fact reportable, would be reportable as a result 

of the use of a prescription medication and not for any 

other medical reason. 

As previously noted, 30 C.F.R. § 50.20(a) requires a mine 

operator to mail a report for each "occupational injury" to MSHA 

within ten days after the injury occurs. The regulation at 

30 C.F.R. § 50.2(e) defines the term "occupational injury" as 

"any injury to a miner which occurs at a mine for which medical 

treatment is administered or which results in death or loss of 

consciousness, inability to perform all job duties on any day after 

injury, temporary assignment to other duties, or transfer to 

another job". 

"Medical treatment" which, if administered, renders an injury 

an "occupational injury" and thus reportable to MSHA, is 

distinguished from "first aid" at 30 C.F.R. § 50.20-3(a): 

Ca) Medical trea~ment includes, but is not limited to, 

the suturing of any wound, treatment of fractures, 

application of a cast or other professional means of 

immobilizing an injured part of the body, treatment of 

infection arising out of an injury, treatment of bruise 

by the drainage of blood, surgical removal of dead or 

damaged skin Cdebridement), amputation or permanent loss 

of use of any part of the body, treatment of second and 

third degree burns. Procedures which are diagnostic in 

nature are not considered. by themselves to constitute 

medical treatment. Visits to a physician, physical 

e~aminations, x-ray examinations and hospitalization for 

observation, where no evidence of injury of illness is 

found and no medical treatment given, do not in 

themselves constitute medical treatment. Procedures 

which are preventive in nature also are not considered by 

1097 
themselves to constitute medical treatment. Tetanus and 

flu shots are considered preventative in nature. First 

aid includes any one time treatment and follow-up visit 

for the purpose of observation of minor injuries such as 

cuts, scratches, first degree burns and splinters. 

Ointments, salves, antiseptic, and dressing to minor 

injuries are considered to be first aid. 

It is not disputed in these cases that the medications noted 

in each of the 14 remaining citations was a medication for which a 

prescription was written during the course of a visit to a 

physician's office. 

The Secretary maintains that she has consistently construed 

the term "medical treatment" to include cases where a prescription 

medication is used, except where "a single dose or application of a 

prescription medication is given on the first visit merely for 

relief of pain or as a preventive treatment for a minor injury." 

According to the Secretary this interpretation was initially 

articulated in a 1980 Information Report on Part 50, of her 

regulations and was reiterated in a 1986 revision of the Report 

(Ex. G-15 and G-16). 

The Secretary observes that section 50.20-3(a) provides that 

medical treatment includes, but is not limited to, the examples 

given. The regulation provides that " .•• [v]isits to a physician, 

physical examinations, x-ray examinations .•. do not in themselves 

constitute medical treatment ••. where no evidence of injury or 

illness is found •.• ". The Secretary notes that the physicians here 

rendered a specific diagnosis of injury and, as a result of the 

injury, prescribed medication. She also observes that none of the 

charges in the citations at bar fall within the "single-dose" 

exception. 

If the Secretary's proffered interpretation of the cited 

standard is applied hereto (i.e. the 1980 Information Report on 

part 50 and the 1986 revision of the report) then the use of the 

prescribed medication would no doubt constitute "medical treatment" 

within the meaning of part 50 and render the injury an 

"occupational injury" reportable to MSHA under the provisions of 30 

C.F.R. § 50.20(a). The Secretary maintains that her-views on this 

interpretation of her regulations are entitled to controlling 

weight unless plainly erroneous or inconsistent with the 

regulation, citing Eula v. Tallman 380 U.S. 1 (1965) and Brock v. 

Cathedral Bluffs ShaTe<5il Co., 796 F.2d 533, (D.C. Cir. 1986), as 

authority. 

Garden Creek argues on the other hand that the Secretary's 

proffered interpretation of the term "medical treatment" is indeed 

inconsistent with her regulations and accordingly should not be 

given any weight. This argument is premised on the fact that the 

regulations, at section 50.20-3, explicitly set forth only one 

situation (in the case of eye injuries) in which the use of 

1098 
prescription medication in itself constitutes "medical treatment". 

According to the Garden Creek argument, it may therefore reasonably · 

be inferred that MSHA considered and rejected the inclusion of the · . ~. :, 

use of other prescription medications alone as sufficient to 

constitute "medical treatment" for any other injury. Garden Creek 

further argues that MSHA has attempted to improperly expand the 

scope of her regulations through the use of an "informational 

report" and, implicitly, the procedural requirements for the 

promulgation of regulations set forth in Section lOlCa) of the Act 

and in sec:tion 553 of the Administrative. Procedure Act·:· 

The Respondent's position is clearly the more persuasive. 

Under the doctrine expressio unius est exclusio alterius, the 

specific mention of one thing in a statute or regulation implies 

the exclusion of other things not mentioned. Public Service Co of 

Colorado v. FERC, 754 F2d 1555 (10th Cir. 1985); Tom v. Sutton, 

533 F2d 1101--c9'th Cir. 1976); See also Sutherland S"t'at Const. § 

47.23 and§ 31.06 (4th Ed). In section 50.20-3(a)(5)(ii) the 

Secretary has stated in plain and unambiguous language that 

treatment of only one specific type oi injury Ci.e. eye injuries) 

by use of a prescription medicine would constitue "medical 

treatment" of that injury within the meaning of Part 50. Thus by 

specifically mentioning in her regulations tha_t the treatment of 

eye injuries by use of a prescription medicine constitutes "medical 

treatment" for purposes of the Part 50 reporting requirements, the 

Secretary has implicitly excluded the treatment of all other 

injuries by use of prescription medicine alone from the term 

"medical treatment" under Part 50. 

The Secretary's attempted amendment.through "informational 

reports" is thus clearly erroneous and inconsistent with her 

regulations. Such an amendment must comport with the procedural 

requirements of section 101Ca> of the Mine Act and Section 553 of 

the Administrative Procedure Act. Since the Secretary has conceded 

that the injuries referred to in the citations would be reportable 

under Part 50 only because of the use of a prescription medication 

and for no other reason it is clear that all of the remaining 14 

citations except Ci tat ion No. 2759 648, must fail. -~ 

Citation No. 2759648 is unique in that it involves an eye 

injury for which a prescription was written. Under section 

50.20-3(a) (5)(ii) "medical treatment" for eye injuries includes 

removal of imbedded foreign objects, the use of prescription 

medications or other professional treatment. In this case the 

evidence shows that a miner, Van Smith, suffered an eye injury at 

the No. 6 Mine on January 8, 1987, while beating on a rock dtist 

hose. As a result of this injury Smith visited a physician who 

diagnosed chemical conjuntivities of the left eye and prescribed 

Poly-Pred. · · · 

Respondent argues however that in accordance with the 

regulatory language the Secretary has the burden of proving that a 

prescription medication was actually used by the miner and that the 

1099 

·.'··1""-
Secretary has failed in her burden in that regard. In support of 

its position, Respondent notes that although it has been stipulated 

that the prescription in this case, Poly-Pred, was written by the 

physician the evidence does not show that the miner actually used 

the medication. Indeed the evidence shows that this miner did not 

seek reimbursement for this prescription pursuant to his insurance 

coverage. 

The Secretary argues that it may nevertheless be inferred that 

the medicine was used on the basis that the prescription was 

written by the physician. However an inference cannot be raised 

from a proven fact unless a rational connection exists between such 

fact and the ultimate fact presumed. Moreover an inference may not 

be drawn from one occurrence to another that is not specifically 

connected merely because the two resemble each other, but must be 

linked by the chain of cause and effect and common experience. See 

29 Am Jur 2d Evidence § 162. There is no such linkage here and the 

proposed inference cannot therefore be made. I therefore conclude 

that the Secretary has not met her burden of proving that the 

prescriptive medicine was actually used in this case. Even 

assuming, arguendo, that the inference were permitted, I find that 

this evidence would in any event be outweighed by the infeience of 

non-use arising from the failure of the miner to have applied for 

reimbursement for purchase of the prescription. Accordingly 

Citation No. 2759648 must in any case be vacated for insufficient 

evidence. 

ORDER 

... 

Citation Nos. 2758998, 2759549, 2759650, and 2759655 are 

affirmed. Garden Creek Pocahontas Company is directed to pay a 

civil penalty of $80 with 30 days of this decision. Citation Nos. 

2758999, 2759648, 2759651, 2759652, 2759653, 2759654, 2759657, 

2759658, 2759659, 2288707, 2288708, 2288709, 88711, and~2759660 

are vacated. 

1 ~ 

! 

t,/ ~ A-\./' I ' Gary Me 1

ick 

Adminis 1rative Judge 

( 703) 7 '6-6261 

Distribution: 

~ary K. S~en~er·, Esq., Office of the Solicitor, 4015 Wilson 

Boulevard, Room 516, Arlingto11, VA 22203 (Certified Mail) 

MarshAll s. ·Peace, Esq., P~O. Box 11430, Lexington, KY 40575 

(Certified Mail) 

nt 

1100 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 221988 

CHARLES H. SISK, 

Complainant . . DISCRIMINATION PROCEEDING 

v. 

E. R. MINING, INC., 

D.B.A. E. R. TRUCKING, CO., 

Respondent 

Docket No. KENT 87-212-D 

: MADI CD-87-3 . . 

. . Charolais No. 1 Mine 

DECISION 

Appearances: Daniel N. Thomas, Esq., Thomas & Ison, P.S.C., 

Hopkinsville, Kentucky for Complainant; 

Pam Corbin, Esq., Little & Corbin, Madisonville, 

Kentucky.for Respondent. 

Before: Judge Melick 

This case is before me upon the complaint by Charles H. Sisk 

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

of 1977, 30 u.s.c. § 801 et seq., the "Act," alleging that he was 

discharged by E. R. Mining, Inc., CE.R.) in September 1986 in 

violation of section 105Cc)(l) of the Act.~/ 

!/section. 105(c)(l) of the Act provides as follows: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in 

any coal or other mine subject to this Act because such 

minar, representative of miners or applicant for 

employment, has filed or made a complaint under or 

related to this Act, including a complaint notifying 

the operator or the operator's agent, or the 

representative of the miners at the coal or other mine 

of an alleged danger or safety or health violation in a 

coal or other mine or because such miner, 

representative of miners or applicant for employment is 

the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 

101 or because such representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceedings under or related to this Act 

or has testified or is about to testify in any such 

proceeding, or because of the exercise by such miner, 

representative of miners or applicant for employment on 

behalf of himself or others of any statutory right 

afforded by this Act. 

1101 
In order to establish a prima facie violation of 

section lOS<c>Cl) Mr. Sisk must prove· by a preponderance of the 

evidence that he engaged in an activity protected by that section 

and that his discharge was motivated in any part by that 

protected activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co. 2 FMSHRC 2786 (1980) rev'd on other 

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

1211 C3rd cir:-1981); Secretary on behalf of Robinette v. United 

castle Coal Co., 3 FMSHRC 803 (1981). A miners "work refusal" 

is protected under section 105Cc) of the Act if the miner has a 

good faith, reasonable belief in the existence of a hazardous 

condition. Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982); 

Robinette, supra. The case law addressing work refusals also 

contemplates some form of conduct or communication manifesting an 

actual refusal to work. See e.g. Sammons v. Mine Services Co., 6 

FMSHRC 1391 (1984). 

In this case the Complainant, Mr. Sisk, alleges that on 

September 23, 1986, at approximately 4:00 p.m. he was fired for 

refusing to operate a truck which he considered unsafe in that it 

purportedly had no brakes. 

The evidence shows that after his arrival at work around 

4:00 p.m., on September 23, 1986, Mr. Sisk asked contract 

mechanic Bill Rider to adjust the brakes on one of the haulage 

trucks. Adjusting the brakes on these trucks is relatively 

aimple, requires only 5 to 10 minutes and is a procedure that 

many of the drivers perform themselves. According to Rider, Sisk 

knew or should have known because of his experience as a truck 

driver, of the simplicity and brevity of the procedure. As Rider 

was nearly finished adjusting the brakes on the one truck Sisk 

reappeared, told Rider that he was working on the wrong truck and 

asked Rider to then adjust the brakes on another truck identified 

as "Uke 51". Rider responded that he would "get to it in a 

minute". According to Rider, Sisk was "loud and abrasive" used 

profanity and was "awfull ill" toward him. Rider completed the 

brake adjustment on truck No. 51 in about 10 minutes but Sisk 

never returned. 

Although Rider believed that the brakes on truck No. 51 

needed no adjustment he nevertheless tightened them to satisfy 

Sisk. He observed that the truck had been driven the previous 

Saturday, Monday and earlier that same day and he received no 

1102 
complaints about the brakes. Rider concluded moreover that Sisk 

could not have known the condition of the brakes that afternoon 

because he had not yet even driven the truck. 

According to the joint stipulations of fact submitted in 

this case, upon being told by Rider that he would complete the 

brake adjustment on the first truck before proceeding to the 

second truck, the Complainant n1ost his temper and began 

complaining to Tommy Beddow [the day shift foreman] in a loud and 

excited voice about working conditions, including the conditions 

of the brakes." Ac~ording to the stipulations the following then 

occurred: 

Claimant left the area in which Mr. Rider was working 

and approached Tommy Beddow, complaining that the 

brakes were bad on the spare truck but instead of 

working on it, Mr. Rider was working on another truck. 

Claimant told Tonuny Beddow that, in the condition that 

the brakes were in, the risk existed that he could run 

the spare truck into a piece of equipment or an 

employee because of his inability to stop it. Claimant 

was loud and abrasive in his speech toward Tommy Beddow 

and as he did not want claimant operating the spare 

truck in the mood that he was in, claimant then went to 

talk to mine superintendent, Jimmy Beddow, and he sent 

claimant home. Claimant asked him if he were to return 

the next day and Mr. Beddow told him that he would be 

contacted. Claimant was discharged on 

September 25, 1986. 

Thomas Beddow testified that he had just emerged from the 

pit area upon completion of the first shift and pulled up to the 

truck area when Sisk began complaining angrily that Rider was 

adjusting the brakes on the wrong truck. Sisk was in a "bad 

mood" and was "pretty upset". Sisk yelled at Beddow that he was 

"going to kill somebody" if he had to run the truck without 

brakes and Beddow yelled oack "well don't get in it and don't run 

it". According to Beddow, Sisk never refused to drive the 

haulage truck but suddenly drove off in his own truck. Beddow 

claims that he neither fired Sisk nor told him to go home. He 

assumed that by driving off the job Sisk just quit. 

Later, Mine Superintendent James Beddow reported that Sisk 

had asked him if he was to return to work the next day as if 

there was no other work for him that day. A day or so later 

there was meeting at which James Beddow told Sisk he was "not 

going to have someone tell him when and how to operate his 

business." According to Thomas Beddow, Sisk had a bad attitude, 

1103 
would drive .the trucks too fast, would "drowse-off" on the job, 

and was frequently "run down and tired" apparently from working 

two jobs. 

James Beddow testified that Sisk was "an average worker" but 

often drove too fast, would sleep on the job and was generally 

worn out. According to Beddow, Sisk did not wait long enough to 

find out what other work was to be done but rather was already 

prepared to leave the job. James Beddow met with Sisk on the 

25th of September and then discharged him primarily because of 

Sisk's "attitude with his employees". Beddow did not want Sisk 

to "get away with" talking to his employees and supervisors in an 

abusive manner. 

Sisk testified that under normal preoperation procedures the 

drivers test the brakes on the way to the pit. If the brakes are 

then working properly management would be asked to adjust them. 

Because of a tire blow-out on his regular truck (No. 56) a week 

earlier, Sisk had been assigned truck No. 51. Sisk claims that 

he had driven truck No. 51 the previous Friday, Saturday and 

Monday, and found that "there weren't any brakes on it". 

According to Sisk, truck No. 51 had on three prior occasions 

backed over the edge of the pit area because of inadequate brakes. 

He purportedly complained of this to both of the Beddow brothers. 

Sisk also claims that on the day before the 23rd the brakes were 

still inadequate. 

On September 23rd, Sisk was at the job site a few minutes 

before his 4:00 p.m. shift. Sisk says that he asked Rider to 

adjust the brakes on one truck nut later realized it was the 

wrong truck. Rider told him he would adjust the brakes on the 

second truck in "just a minute." Sisk nevertheless complained to 

Beddow that the adjustment would not help even though the brakes 

were admittedly out oi adjustment. Sisk maintains that he told 

Beddows that he "really did not want to run the truck until the 

brakes were fixed" but does not claim that he was told to drive 

the truck before the adjustment. Tommy Beddow reportedly then 

told him to get "the hell out of here and don't come back" Sisk 

did not ask for alternative work. When he reappeared for the 

meeting on September 25th, Tommy Beddow said "he could not have 

anybody tell him how to run his business and needed a man who 

would give him 100 percent". 

Sisk testified that he had never been insubordinate but 

admitted talking in a loud voice because he was purportedly 

wearing ear plugs. On cross examination Sisk admitted that it 

was'company policy to note any problems on your vehicle on your 

time card or tell management of the problem. He claims that he 

1104 
did not follow this procedure on September 22nd because no action 

had been taken on his reporting a defective tire on truck No. 56 

and he did not believe it would do any good. He also claims that 

management was told about the defective brakes so there was no 

reason to write it down. Sisk explained that on September 23rd he 

thought an adjustment of the brakes on truck 51 would however 

correct the problem. 

According to Roy Poole, Sisk's supervisor on the second 

shift, truck No. 51 was to be checked out by Sisk before it was 

operated and if any problems developed the procedure would be 

to report them to Poole. Sisk never did report any brake 

problems to Poole nor to anyone else between September 20 and 

September 23. Poole denied that Sisk had had any problems 

backing into soft ground at the pit area around this time but 

rather those problems had occured when he first started on the 

job months earlier. 

Poole was also at the job site on Tuesday, September 23rd, 

before the shift began. He directed Sisk to drive truck No. 51 

and Sisk asked if he could drive one of the other trucks. Poole 

advised Sisk that "just because you are a senior man you don't 

get to drive somebody elses truck." According to Poole, Sisk was 

cursing and preceded to the area where Rider was working. Poole 

later again talked to Sisk and Sisk again requested to drive 

another truck. Poole acknowledged that truck No. 56 was a better 

truck with better brakes and a better engine but that it was then 

being repaired. Poole testified that Sisk never complained 

about truck No. 51 being unsafe but complained that it was "a 

damn pile of junk". Poole had had problems with Sisk sleeping on 

the job and noted that he was often completely exhausted. On 

occasion he had to remind Sisk to slow down. 

Within this framework it is apparent that there is not even 

sufficient evidence to show that the Complainant engaged in a 

work refusal. According to the credible testimony of the day 

shift foreman, Thomas Beddow, Sisk angrily approached him as the 

second shift was about to begin on September 23rd, and complained 

that the mechanic was adjusting the brakes on the wrong truck. 

At one point Sisk, yelled at Beddow that he was going kill 

somebody if he drove the truck and Beddow responded--"well don't 

get in it and don't run it". Shortly thereafter and without 

determining whether the brakes on his assigned truck had been 

adjusted Sisk just drove off the premises in his own truck. 

In any event, even assuming, arguendo, that Sisk did refuse 

to drive the subject truck it is clear that he could not have 

then entertained either a reasonable or a good faith belief that 

1105 
it would have been hazardous to do so. Sisk admitted that it was 

standard company procedure for the drivers to test the brakes on 

any vehicle on the way to the pit and at that point if they were 

not working properly management would be asked to correct the 

problem. It is undisputed in this case that not only had Sisk 

not yet driven the truck that day in accordance with normal 

brake test procedures but that he had not checked the subject 

brakes in any way. 

Moreover Sisk had asked the mechanic to adjust those brakes 

and the mechanic had agreed to do so. Rather than wait until the 

brakes had been adjusted and tested, Sisk prematurely confronted 

Thomas Beddow with his complaints. This led to a heated exchange 

and Sisk's voluntary departure from the mine site. Sisk could 

not, however, have then entertained either a good faith or a 

reasonable belief that the truck would have been hazardous to 

drive since he had not tested the brakes and the brake adjustment 

had not been completed at the time of his alleged work refusal. 

Under the circumstances Sisk has not established a prima 

facie violation of section 105(c)(l) of the Act and this case 

must therefore be dismissed. 

ORDER \ 

Docket No. KENT 87-212-D is he eby dismissed. 

Distribution 

\1 

ary Melick 

Admini~trative 

(703) \56-6261 

Judge 

\ Daniel N. Thomas, Esq., Thomas and Ison, P.S.C., 1302 South Main 

Street, P.O. Box 675, Hopkinsville, KY 42240 (Certified Mail) 

Pam Corbin, Esq., Little & Corbin, 161 Sugg Street, Madisonville, 

KY 42431 ccertified Mail> 

nt 

1106 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

TROY W. CONWAY, SR., 

Complainant 

v • 

PEABODY COAL COMPANY, 

Respondent 

Before: Judge Merlin 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

August 22, 1988 

DISCRIMINATION PROCEEDI~G 

Docket No. KENT 88-128-D 

MADI CD 88-03 

ORDER OF DISMISSAL 

On May 4, 1988, you filed with this Commission a complaint 

of discrimination under section 105{c) of the Federal Mine Safety 

and Health Act of 1977. On June 15, 1988 a show cause order was 

issued directing you to provide information regarding your 

complaint or show good reason for your failure to do so. The 

show cause was mailed to you certified mail, return receipt requested and the file contains the signed receipt card ·showing 

you received the show cause order. You have however, not 

responded and complied with the show cause order. 

Accordingly, this case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Mr. Troy W. Conway, Sr., Route 3, Sturgis, KY 42459 (Certified 

Mai 1 ) 

Peabody Coal Company, 68-H, R.R. #1, Waverly, KY 42462 

(Certified Mail) 

I g 1 

1107 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 261988 

SECRE'rARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

MICHAEL L. PRICE AND 

JOE JOHN V.l\CHA, 

Complainants 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA ( UMWA), 

Intervenor 

Docket No. SE 87-128-D 

No• 4 Mine 

SUPPLEMENTAL DECISION 

Appearances: Frederick W. Moncrief, Esq., and Tho~as A. 

Mascolino, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

the Secretary of Labor and Complainants; 

Robert K. Spotswood, Esq., and John W. Hargrove, 

Esq., Bradley, Arant, Rose & White, Birmingham, 

Alabama, for Respondent; Robert H. Stropp, Esq., 

and Patrick Nakamura, Esq., Stropp & Nakamura, 

Birmingham, Alabama, for Intervenor, and 

Complainants. 

Before: Judge Broderick 

On July 13, 1988, I issued a decision on the merits in this 

case in which I concluded that comolainants Michael L. Price and 

Joe John Vacha were discharged by Jim Walter Resources Inc. (JWR) 

in violation of section 105(c) of the Federal Mine Safety and 

Health Act of 1977. I ordered the reinstatement of Price and 

Vacha t6 the positions from which they were discharged on 

March 2, 1987. I also ordered JWR to pay back wages and other 

benefits to Price and Vacha fro1n March 3, 1987, until the date of 

their reinstatement with interest. I directed counsel to attempt 

to agree upon the amounts due complainants under this order. 

On August 19, 1988, the parties filed a joint submission in 

which they agreed on the amounts due under my order as back pay 

1108 
and miscellaneous expenses to each of the claimants. The parties 

disagree as to whether complainants are entitled to one hour's 

pay for the time spent after the completion of their shift on 

March 2, 1987, when JWR ordered them to provide a urine sample. 

Vacha claims and JWR denies-reimbursement for costs and -

attorneys' fees assessed in a lawsuit filed againstnim on an 

overdue account. 

When a violation of section 105(c) is found, the statute 

directs the Commission to require such affirmative action to 

abate the violation as it deans appropriate. Appropriate 

affirmative action may include back pay, interest, reimbursement 

for damages or expenditures related to the unlawful discharge, a 

cease and desist order and a civil penalty for the violation of 

the Act. 

Respecting the claim for one hour's pay for part of the time 

complainants spent on company property after being ordered to 

provide a urine specimen, the Secretary and JWR each relies on a 

different arbitrator opinion. In one opinion, the arbitrator 

held that employees who were tested under the program during 

nonworking hours were entitled to up to one hour's pay at 

overtime rates. In a later opinion, the arbitrator held that 

Price and Vacha were not entitled to pay for the time spent 

(4-1/2 hours) on company property after they were directed to 

provide urine specimens on March 2, 1987. It is not my function 

to interpret the collective bargaining contract or to reconcile 

arbitrator opinions. I must decide whether the claim is related 

to the discriminatory discharge. No wages were lost; no money 

was expended. The unlawful discharge did not occur until after 

the time for which the claim is made expired. I conclude that 

reimbursement for one hour of that time is not related to the 

unlawful discharge, and I deny that portion of the claim. 

There is no evidence in the record to show that the expenses 

incurred by Vacha in connection with his lawsuit were related to 

the discriminatory discharge, and I deny that portion of his 

claim. 

ORDER 

1. The findings, conclusions and order incorporated in illY 

decision of July 13, 1988, are REAFFIRMED. 

2. Respondent is ORDERED to pay complainant Price within 30 

days of the date of this order the sum of $8, 411. 8 6 as back pay 

and expenses, with interest thereon in accordance with the Bailey 

v. Arkansas Carbona formula, calculated proximate to the time 

payment is actually made. 

1109 
3. Respondent is ORDERED to restore to Price the three days 

of graduated vacation pay he took to attend the hearing. 

4. Respondent is ORDERED to pay complainant Vacha wiJ:hin 30 

days of the date of this order. the sum of $68 81.4 7 as back pay_ 

and expenses, with interest thereoh in accordahce-wfth- the Bailey 

v. Arkansas Carbona formula, calculated proximate to the time 

payment is actually made. 

5. Respondent is ORDERED to pay to the Secretary within 30 

days of the date of this order the sum of $500 as a civil penalty 

for the violation found herein. Because I concluded that the 

substance abuse program was facially in violation of the Act, I 

treat ic as a single violation. Because I concluded that JWR did 

not intend to diminish the rights and responsibilities of miners' 

representatives, I have reduced the amount of the penalty. (The 

Secretary requested a $2000 penalty for each of two violations.) 

Distribution: 

·'7 • 

' /hes /I -c1,· -?,/'j, //7~ /t ...... l , ... ~//._, c.. c......:<- .. , ... e A:.,. 

James A. Broderick 

Administrative Law Judge 

Frederick W. Moncrief, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

James P. Alexander, Esq., Robert K. Spotswood, Esq., John H. 

Hargrove, Esq., Bradley, Arant, Rose & White, 1400 Park Place 

Tower, Birmingham, AL 35203 (Certified Mail) 

Robert H. Stropp, Esq., Patrick K. Nakamura, Esq., Stropp & 

Nakamura, 2101 City Federal Bldg., Birmingham, AL 35203 

(Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

St., ~.w., Washington, D.C. 20005 (Certified Mail) 

slk 

1110 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 31 \988 

DAVID LEE JACK, 

Complainant . . 

. . DISCRIMINATION PROCEEDING 

v. . . 

. . Docket No. PENN 88-138-D 

THE HELEN MINING COMPANY, 

Respondent 

. . PITT CD 87-15 

Appearances: 

Before: 

. . 

. . 

DECISION 

Homer City Mine 

Marvin Stein, Esq., Kuhn, Engle & Stein, 

Pittsburgh, Pennsylvania, for the Complainant: 

Henry J. Wallace, Jr., Esq., Reed, Smith, Shaw 

& Mcclay, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Weisberger 

Statement of the Case 

On February 22, 1988, Complainant filed a complaint with the 

Commission under section 105(c) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 815(c) (the Act) alleging, in 

essence, that the Respondent took a discriminatory disciplinary 

action towards him, 11 ••• as a result of my work-related 

accident, absences from work, and need for ear surgery in order 

not to loose my hearing." An Answer was filed on March 28, 1988. 

Pursuant to notice, the case was scheduled and heard in 

Pittsburgh, Pennsylvania, on June 22, 1988. At the hearing 

David L. Jack, Ronald H. Rhoades, and Layton Thrower testified 

for the Complainant. W. Duane Landacre and Clark McElhoes 

testified for the Respondent. Complainant filed its posthearing 

Proposed Findings of Fact and Memorandum of Law on August 10, 

1988, and Respondent filed its Proposed Findings of Fact and 

Memorandum of Law August 12, 1988. Each Party filed a Reply on 

August 22, 1988. 

Issues 

1. Whether the complainant has established that he was 

engaged in an activity protected by the Act. 

1111 
2. If so, whether the Complainant's suffered adverse action 

as the result of the protected activity. 

3. If so, to what relief is he entitled. 

Findings of Fact 

Stipulated Facts: 

Prior to the hearing the Parties stipulated with regard to 

the following facts as set forth in their Prehearing Stipulation: 

1. Complainant David Lee Jack (nJackn) is an adult 

individual residing at 431 Oak Street, Indiana, 

Pennsylvania, and was employed by The Helen Mining 

Company as a miner, as that term is defined under 

30 u.s.c.A. § 802Cg>. 

2. Respondent, The Helen Mining Company C"Helenn) 

is a Pennsylvania corporation, a wholly owned 

subsidiary of the Valley Camp Coal Company and an 

employer in an industry affecting commerce as 

defined by Section 2(7) of the LMRA, 29 U.S.C.A. 

§ 802(h)Cl). Its principal place of business is in 

Homer City, Indiana County, Pennsylvania. 

3. Jack was employed by Helen as a miner from 

October 10, 1978 until July 24, 1987, when he was 

discharged pursuant to Helen's Chronic and Excessive 

Absence Control Prograi~. 

4. In December 1985, Jack suffered a serious injury 

to his hand while at work, and was off work for the 

first 6 months of 1986. 

5. During the latter part of 1986, Jack was injured 

in a shuttle car accident in the mine and missed 

more than 2 weeks of work. 

6. In January 19 1987, Helen implemented a Chronic 

and Excessive Absence Control Program (the "Program") for hourly employees at the Helen Mine. 

7. On January 14, 1987, Jack received a warning 

under the Program because he exceeded the 10 percent 

and six occurrence standard set forth in the Program. 

8. On April 14, 1987, Jack received a Last and 

Final warning under the Program. 

1112 
9. On May 1, 1987, Jack underwent an ear operation. 

10. Jack was absent from work approximately 11 days 

after his ear surgery. 

11. In the 3 months following issuance of the Last 

and F.inal Warning, Jack was absent 22 percent of his 

scheduled workdays. 

12. On July 24, 1987, Jack was discharged on the 

basis that he failed to correct his high rate of 

absenteeism under Helen's Chronic and Excessive 

Absentee Program. 

13. On July 28, 1987, a grievance was filed on 

Jack's behalf protesting his termination, which 

grievance was submitted for resolution to Arbitrator 

Edward J. Sedlmeier. 

14. On August 15, 1987, Arbitrator Sedlmeier issued 

a Decision and Award upholding Jack's termination. 

15. On September 4, 1987, District 2, United Mine 

Workers of America, and Local 1619, United Mine 

Workers of America, filed a Complaint in the United 

States District Court for the western District of 

Pennsylvania at Civil Action No. 87-1880 seeking to 

set aside Arbitrator Sedlmeier's Decision and Award 

on the grounds, inter alia, that the Decision and 

Award does not draw its-eBsence from the labor agreement and is contrary to public policy. 

16. On April 29, 1988, United States District Judge 

Alan N. Bloch issued an Order granting Helen's 

Motion for Summary Judgment, dismissing the 

Complaint and finding that Arbitrator Sedlmeier's 

Decision and Award draws its essence from the collective bargaining agreement and is in the bounds of 

established public policy. 

I adopt the above stipulated facts. 

Findings of Fact 

During the course of his employment with the Respondent, 

David L. Jack worked underground as an indoor laborer operating a 

shuttle car which exposed him to coal dust at the face. 'He also 

ran a bolter and had to shovel to keep the belt line free of coal. 

He also performed construction work which was not generally at 

the face. In general, each work day ne would be assigned by his 

foreman to perform any of the above tasks. 

1113 
Jack, for approximately 2 years prior to May 7, had suffered 

from a perforated right tympanic membrane with a resulting 

hearing lost of 25 to 45 decibels in the right ear. In March 

1987, his physician, Doctor Minoa Karanjia recommended surgery. 

Jack, subsequently in March 1987, informed Clark McElhoes, 

Respondent's Superintendent, of the pending operation and inquired 

whether he would be discharged if he would take off 3 days in May 

for an operation, and McElhoes indicated that it would not. (Jack 

had testified that, when informing McElhoes in March 1987, of the 

pending operation, he did not specify that he would need 3 days off. 

I have adopted the version testified to by McElhoes due to my 

observations of his demeanor, and due to the fact w. Duane 

Landacre, Respondent's Personnel Manager, testified that, in an 

arbitration hearing, Jack had said that he told McElhoes that he 

would not be taking for off more than 3 days. In this connection, 

I note that in the Arbitration Decision, the Arbitrator indicated 

that Jack, when he scheduled the operation, expected to be out of 

work for 3 or 4 days. (RX 7, page 14)). 

As a consequence of the right tympanoplasty performed on 

May 1, 1987, Jack was provided with a graft in his ear. According to Jack, 2 days after the operation, he returned to the 

office of Doctor Karanjia and at that time the latter asked him 

what kind of work he did and Jack said that he worked in a coal 

mine. Jack indicated at that time there was no discussion with 

regard to Jack's returning to work. Jack further said, that at 

that time he obtained a slip from Doctor Karanjia, that he would 

be off from work and turned it in to the mine clerk, a Mr. Rooke, 

who did not have any supervisory functions. However, Jack 

indicated that he did not read the contents of the note. A note 

entitled "Certificate to return to work or school" dated 

April 29, 1987, signed by Doctor Karanjia and stamped by the 

Respondent on what appears to be May 1, indicates that Jack has 

been under the latter's care and contains the following remarks: 

"for surg 5/1/87 - will be off work until further notice." 

(RX 11). 

Doctor Karanjia, in his deposition, stated, in essence, 

that, on April 29, 1987, Jack indicated his occupation to him. 

He further stated that he first saw Jack after the operation on 

May 6 (Deposition page 33), and then saw him again on May 13. He 

said that he told Jack, in essence, that he could not go and work 

in the mines and "it will be up to you." (Deposition 17 - 18). 

He explained, in essence, that the postoperative ear condition, 

" ... is going to be effected by a lot of dust, coal dust that 

might go in and things might happen." (Tr. 17). He also 

1114 
indicated that. there is a very high possibility that a postoperative ear condition can be infected if a person goes in mines and 

works with dust. He provided his opinion that the postoperative 

condition is unsafe and Jack should have been off work for at 

least 3 months. 

However, there is nothing in the record to establish exactly 

when Doctor Karanjia told Jack not to go back to work at the 

mines. Jack testified that, when he saw Doctor Karanjia the 

second time after the operation, he was examined and given a slip 

"to return to work" which he gave to Rooke the following day and 

that he continued working that day and continued working for 

2 weeks. (Tr. 20, 21) Rooke, to whom Jack testified that he had 

given the slip from Doctor Karanjia 2 days after the operation, 

did not testify. According to McElhoes he did not have any 

contact with Jack between the time Jack had asked him if he could 

take time off for an operation in March or April 1987, until the 

arbitration proceedings subsequent to Jack's discharge. Based on 

the above I find that, prior to Jack's return to work after his 

operation on May 18, 1987, he did not notify Respondent prior to 

the Arbitration Proceedings, that he refused to return to work as 

directed by his Physician in order to avoid infection and 

possible lost of hearing as a consequence of exposure to dust and 

coal dust. 

Jack testified that on July 24, he was called into 

Respondent's office and McElhoes informed him that he was being 

discharged pursuant to the chronic absentee program as his 

absenteeism had exceeded 10 percent. Pursuant to the procedure 

in this program, Jack requested a meeting with Respondent's 

agents which was held on July 28. At that time Jack indicated 

that he had returned to work 11 days after the surgery under his 

doctor's instructions as the latter had wanted his surgery to 

heal properly, had given him a slip 2 days after the surgery, and 

intended to keep him off work. 

Discussion and Conclusions of Law 

Complainant and Respondent are protected by, and subject to, 

the provisions of the Mine Safety Act, and specifically section 

lOSCc) of the Act. I have jurisdiction to decide this case. 

The Commission, in a recent decision, Goff v. Youghiogheny & 

Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the 

legal standards to be applied in a case where a miner has alleged 

acts of discrimination. The Commission, Goff, supra, at 1863, 

stated as follows: 

A complaining miner establishes a prima facie case 

of prohibited discrimination under the Mine Act by 

proving that he engaged in protected activity and that 

1115 
the adverse action complained of was motivated in any 

part by that activity. Pasula, 2 FMSHRC at 2797-2800; 

Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1991). The operator 

may rebut the prima facie case by showing either that 

no protected activity occurred or that the adverse 

action was not motivated in any part by protected activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 

(D.C. Cir 1984); Baich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the 

Commission's Fasula-Robinette test). 

It has been further held by the Commission that, a miner's 

refusal to perform work is protected under section 105(c) of the 

Mine Act if it is based on a reasonable, good faith believe that 

the work involves a hazard. Pasula, supra, Robinette, 3 FMSHRC, 

803 at 812; Secretary v. Metric Constructors, Inc., 6 FMSHRC 226, 

229-31 (February 1984), Aff 'd sub nom. Brock v. Metric 

Constructors, Inc., 766 F.2d 469, 471-72 Cllth Cir. 1985). 

Perando v. Mettiki Coal Corp., 4 FMSHRC 491 (1988). 

In essence, it is Complainant's position that from the time 

of his operation until his return to work, he had refused to work 

as directed by his physician in order to avoid infection and 

possible lost of hearing. Doctor Karanjia testified, in his 

deposition, that he told Jack, in essence, not to go back to work 

in the mines, because the postoperative condition would be 

effected by a lot of dust and coal dust, and that Jack should 

have been off from work for a minimum of 6 weeks. Accordingly to 

Jack, when he saw Doctor Karanjia for the first time, 2 days 

after the operation, there was no discussion with regard with his 

return to work. Also, accordingly to Jack, although Doctor 

Karanjia gave him a slip at that time which he took to Rooke, 

Jack did not read the contents of the slip. Further, the record 

is not clear as to exactly when Doctor Karanjia told Jack not to 

return to work in the mines. Also, Jack's duties entitled a wide 

range of work, including construction work which was not in the 

area of the face. Further, Jack was aware that Respondent 

provided its employees with ear muffs which covers the ear 

entirely and Jack agreed that to obtain such a pair all he had to 

do was go to the supply room and ask for them. I find, based 

upon this evidence, that Complainant has not established that 

during the time he was off from work after his operation, he had 

ref used to perform work based upon a reasonable belief that the 

work involved a hazard. 

Even assuming arguendo that the Complainant herein engaged 

in a protected activity in not working for 11 days subsequent to 

his operation, his case must fail, as Jack has not met his burden 

1116 
in establishing that he communicated to Respondent his refusal to 

work. As stated by the Commission in Secretary on behalf of 

Sedgmer, et al v. Consolidation Coal Company, 8 FMSHRC 303, at 

307 (March 1986), "The case law addressing work refusals contemplates some form of contact or communication manifesting an 

actual refusal to work." 

Jack asserts that his absence for 11 days subsequent to his 

operation on May 1, 1987, was a protected work refusal, and his 

discharge on June 24, was a violation of the Act. However, the 

record is devoid o~ any evidence that Jack, prior to his meeting 

with Respondent's agents on July 28, 1987, had communicated an 

actual refusal to work based on a belief that his working 

involved a hazard. According to Jack, when he met with McElhose 

some time in March 1987, prior to surgery, he merely informed him 

of the need of surgery and was told to go and have it. There is 

no testimony from Jack that at that time he communicated any 

refusal to work subsequent to the operation based upon a perception of any hazard. According to Jack's testimony, the only 

contact he had with Respondent's agents between his last day of 

work prior to the operation and his return to work on May 18, 

consisted of his presenting a slip to Rooke 2 days after the 

surgery. Jack did not testify to any.conversation that he had 

with Rooke, nor did he testify with regard to the contents of the 

note that he presented to Rooke, as Jack had indicated that he 

did not read it. The note itself was not offered in evidence. 

Also, although a note dated April 29, 1987, from Doctor Karanjia, 

was in Respondent's possession indicating, in essence, that Jack 

will undergo surgery on May 1, 1987, and "will be off work until 

further notice," (RX 11), there is nothing in that note communicating specifically that Jack's contemplated absence would be to 

avoid exposure to hazardous aspects of his job. Further, had 

Jack clearly communicated to Respondent his refusal to work due 

to a fear of exposure to the hazards of dust and coal dust, it is 

likely that he would have been provided with ear muffs which 

would have alleviated the hazard of infection. 

Therefore, for all the above reasons, it is concluded that 

the Complainant has not engaged in a pro~ected activity under 

section 105(c) of the Act, and as such, has not established a 

prima facie case. Accordingly, Respondent's Motion for Summary 

Decision, made at the Hearing, is presently GRANTED and the 

Complaint is DISMISSED. 

1117 
ORDER 

Based on the above Findings of Fact and Conclusions of Law, 

it is ORDERED that this proceeding be DISMISSED. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Melvin Stein, Esq., Kuhn, Engle & Stein, 1307 Manor Building, 

564 Forbes Avenue, Pittsburgh, PA 15219 CCertif ied Mail) 

Henry J. Wallace, Jr., Esq., Reed, Smith, Shaw & Mcclay, Mellon 

Square, 435 Sixth Avenue, Pittsburgh, PA 15219-1886 (Certified 

Mail) 

dcp 

1118 
FEDERAL MINE SAF,ETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

August 26, 1988 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

contestant 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

. 

. 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. PENN 88-243-R 

Safeguard Notice 2885431: 5/18/88 

Greenwich Collieries No. 2 Mine 

Mine ID 36-02404 

PARTIAL DECISION AND 

STAY ORDER 

Before: Judge Melick 

On May 18, 1988, a notice to provide safeguard was 

issued by the Secretary under section 314Cb) of the Federal 

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

the "Act," to the Rochester and Pittsburgh Coal Company (the 

Company). On June 16, 1988, the Company attempted to contest 

that safeguard notice. 

Thereafter, on July 1, 1988, the secretary filed a 

Motion to Dismiss on the grounds that Contestant failed to 

state a claim for which relief may be granted under section 

105 of the Act. Under section 105(d) a mine operator may 

contest an order issued under section 104, a citation or a 

penalty assessment issued under section 105(a) or section 

105(b), or the reasonableness of the length of abatement time 

fixed in a citation. However the safeguard notice here 

challenged is not within any of these categories. 

Accordingly the Secretary's Motion to Dismiss the Contest 

Proceeding is granted and the attempted contest of Safeguard 

No. 2575910 is dismissed. 

1119 
On June 27, 1988, the contestant moved to amend its 

pleadings to also request a declaratory judgement holding 

that the subject safeguard is invalid. The proposed 

amendment is unopposed and ·comports with the procedural 

rules. The issue of whether a Commission Administrative Law 

Judge has the jurisdictional authority to grant declaratory 

relief is however presently before the Commission in the case 

of Kaiser Coal Corp. v. Secretary and UMWA, Docket No. 

WEST 88-131-R. Accordingly further procee ings in this case 

concerning the issue of declaratory relief are hereby stayed 

pending a decision by the Comm·ssion in th. ~~c· 

Judge 

Distribution: 

Gary M ick 

Adminis\rative 

(703) 7 6-6261 

Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal Company, 

P.O. Box 367, Ebensburg, PA 15931 (Certified Mail) 

B. Ann Gwynn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Mr. William N. Shaner, Chairman, UMWA Safety Committee, P.O. 

Box 367, Ebensburg, PA 15931 (Certified Mail) 

nt 

1120 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6232 

August 29, 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

Docket No. CENT 88-56-M 

A.C. No. 41-03018-05513 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

BOORHEM-FIELDS, INCORPORATED, 

Respondent 

McDaniel Pit 

ORDER REJECTING PROPOSED SETTLEMENT 

By letter and attachment received August 22, 1988, the 

petitioner filed a motion seeking approval of a proposed 

settlement by the parties for section 104(a) "S&S" Citation 

No. 3061374, September 10, 1987, 30 C.F.R. § 56.9073. The 

citation was assessed at $276, and the petitioner seeks approval 

of a payment of $20 by the respondent in settlement of the 

violation. 

A review of the pleadings reflects that the inspector 

issued the citation after finding a back hoe with bad brakes 

and a broken tie rod broken away from the frame on the left side 

of the vehicle, parked at the shop area of the mine. The 

inspector found that the vehicle had not been tagged to prevent 

anyone from operating it, as required by the cited standard. 

Abatement was achieved within approximately 3 hours of the 

issuance of the citation, and this was accomplished by the mine 

superintendent removing the key from the vehicle. 

The inspector's gravity findings, as shown on the face of 

the citation, reflect that an injury was reasonably likely, with 

permanently disabling results, and that one person would be 

exposed to such an injury. In support of the reduction of the 

initial penalty assessment for the violation, petitioner makes 

the following argument at page two of its motion: 

Probability of injury was overevaluated since 

very few employees were exposed to the risk, these 

employees were not, during the normal course of 

1121 
their_ work, exposed to the risk with any great 

frequency, or were not in the zone of danger, and 

the employees were not working under stress or 

where their attention would be distracted. 

I fail to understand the relationship between an untagged 

parked vehicle with bad brakes and a broken tie-rod, and the 

petitioner's statements that few employees were exposed to a 

risk, that they would not in the normal course of their work 

be exposed to the risk with any great frequency, were not in 

the zone of dahger, and were not working under stress or where 

their attention would be distracted. Such unexplained statements 

raise an inference that the untagged vehicle posed a hazard, and 

that employees may have been exposed to such a hazard. 

Although the respondent's answer suggests that the cited 

vehicle was parked at the shop for repairs, and makes reference 

to a "repurt" prepared by the inspector stating that the vehicle 

was parked at the shop for repairs, petitioner's motion does not 

include any such information. Further, the fact that abatement 

was achieved by the removal of the ignition key some 3 hours 

after the citation was issued, raises a question as to why the 

key was not immediately removed from the vehicle when it was 

parked if in fact it was removed from service for repairs. 

ORDER 

In view of the foregoing, the proposed settlement IS 

REJECTED. The petitioner is directed to re-submit it within 

ten(lO) days of the receipt of this Order with a clarification 

or explanation of its previously submitted argument in support 

of the civil penalty reduction in question. 

~KfuZ~ Administrative Law Judge 

Distribution: 

Michael H. Olvera, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Joe Mcclendon, Safety Director, Boorhem-Fields, Inc., 

P.O. Box 1177, Paris, TX 75460 (Certified Mail) 

/fb 

1122