August 1983 

Commission Decisions 

8-04-83 

8-05-83 

8-08-83 

8-10-83 

8-11-83 

8-12-83 

Earth Coal Co., Inc. 

Inverness Mining Co. 

LAKE 83-32 Pg. 1383 

LAKE 81-45-M Pg. 1384 

MSHA ex rel. Bennett, Cox, et al. UMWA WEST 80-489-D(A) Pg. 1391 

v. Emery Mining Corp. 

Monterey Coal Co. 

Emery Mining Corp. 

Local 1889 UMWA, MSHA v. 

LAKE 80-413-R 

WEST 81-400-R 

Westmoreland Coal WEVA 81-256-C 

Pg. 1399 

Pg. 1400 

Pg. 1406 

Administrative Law Judge Decisions 

8-02-83 

8-08-83 

8-09-83 

8-12-83 

8-16-83 

8-17-83 

8-18-83 

8-19-83 

8-22-83 

8-23-83 

8-29-83 

8-30-83 

8-30-83 

8-30-83 

8-31-83 

8-31-83 

Consolidation Coal Co. 

Nugent Sand Co., Inc. 

Richard Klppstein & W.O. Pickett, Jr. 

Richard D. Clemens v. Anaconda Minerals 

Co.,(Atlantic Richfield Co.) 

Calvin Black Enterprises 

Old Ben Coal Co. 

Old Ben Coal Co. 

Riverside Clay Co. 

Consolidation Coal Co. 

Emery Mining Corp. 

Yakima Cement Products Co., Inc. 

Consolidation Coal Co. 

U.S. Steel Mining Co., Inc. 

Joseph D. Burns v. Asarco, Inc. 

Nugent Sand Co., Inc. 

Medusa Cement Co. 

PENN 82-133 

LAKE 83-57-M 

WEST 81-383 

WEST 81-298-DM 

WEST 80-6-M 

LAKE 82-79 

LAKE 82-75-R 

SE 81-62-M 

WEVA 83-32 

WEST 82-48 

WEST 83-37-M 

PENN 82-323-D 

WEVA 82-387 

YORK 82-19-DM 

LAKE 83-57-M 

LAKE 83-80-M 

Pg. 1416 

Pg. 1421 

Pg. 1424 

Pg. 1434 

Pg. 1440 

Pg. 1448 

Pg. 1454 

Pg. 1457 

Pg. 1463 

Pg. 1465 

Pg. 1468 

Pg. 1469 

Pg. 1474 

Pg. 1497 

Pg. 1512 

Pg. 1514 

Commission Decisions 

AUGUST 

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

Secretary of Labor, MSHA v. Southwestern Illinois Coal Corporation, Docket 

No. LAKE 82-38. (Judge Broderick, June 30, 1983) 

Secretary of Labor, MSHA v. Earth Coal Company, Docket No. LAKE 83-32. (Judge 

Merlin, Default Decision, June 28, 1983) 

James Eldridge v. Sunfire Coal Company, Docket No. KENT 82-41-D. (Judge Koutras, 

July 11, 1983) 

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

Secretary of Labor, MSHA v. Monterey Coal Company, Docket Nos. LAKE 80-413-R, 

LAKE 81-59. (Petition for Reconsideration of Commission Decision, June 13, 1983) 

Secretary of Labor, MSHA v. Monterey Coal Company, Docket Nos. LAKE 82-82-R, 

LAKE 82-97. (Judge Koutras, June 6, 1983) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 4, 1983 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA) 

v. Docket No. LAKE 83-32 

EARTH COAL COMPANY, INC. 

DIRECTION FOR REVIEW AND ORDER 

The petition for discretionary review filed by the operator on July 27, 

1983 is granted. We find the order of default entered by the chief 

administrative law judge to have been appropriate under the circumstances 

then before him. However, the operator, who is ~ se in this matter, 

has made statements in the petition for review which the judge has not 

had an opportunity to evaluate. Accordingly, the case is remanded to 

the chief administrative law judge for such proceedings as he may deem 

appropriate, including but not limited to actions to ascertain and 

evaluate the operator's reasons for failing to respond to the judge's 

April 26, 1983 Order to Show Cause. 

Richard ~= V. Backley, Commissioner 

A. E. Lawson, Commissioner 

138~3 83-8-2 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

INVERNESS MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 5, 1983 

Docket No. LAKE 81-45-M 

DECISION 

This civil penalty case, arising under the Federal Mine Safety and 

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

presents the question of whether a Connnission administrative law judge 

appropriately approved the parties' settlement motion. 1/ The operator, 

Inverness Mining Company, filed a petition for discreti~nary review 

complaining of various statements in the judge's decision. For the 

reasons that follow, we affirm the judge's settlement approval as hereinafter modified. 

Inverness operates an underground fluorspar mine in Illinois. On 

August 4, 1980, a non-fatal roof fall accident occurred towards the end 

of the second shift at the mine. A miner received injuries when a slab 

of shale fell from the back or· face of the drift in which he was working. 

It appears that during the preceding shift, the back and ribs of the 

drift had been scaled or barred down--that is, loose shale had been 

scraped away. The back was bolted up to the working face. It is not 

clear whether the miners on the second shift engaged in any testing, 

barring, or scaling in the drift, although they did visually examine 

ground conditions. Conflicting pretrial statements were submitted 

concerning the condition of the back and the face during the second 

shift. 

The day following the accident, an inspector from the Department of 

Labor's Mine Safety and Health Administration (MSHA) arrived to conduct 

an accident investigation. At the conclusion of his investigation, the 

MSHA inspector issued to Inverness a section 104(a) citation, alleging a 

violation of 30 C.F.R. § 57.3-22, a ground control standard, in 

!/ The judge's decision is reported at 3 FMSHRC 2576 (November 1981) 

(ALJ). 

1384 

83-8-3 
connection with the accident. !:_/ The citation states in part, "The back 

of the drift was not tested before the beginning of the work shift or 

any time during the work shift." During his investigation the inspector 

obtained oral statements from the victim, his co-worker, and the second 

shift foreman. The gist of these statements was that no barring or 

scaling had been done during the second shift, that the shale looked 

pretty good, but that it was always hard to tell whether shale was in 

fact as good as it looked. 

During the close-out conference at the conclusion of the investigation, the inspector informed Inverness management officials of his 

intention to issue a citation for failure to test the back during the 

second shift. According to the inspector's field notes memorandum, the 

mine manager and the mine superintendent exchanged words with the inspector concerning the citation. The inspector's memorandum states in 

part: 

At the close out confer[e]nce ••• [the mine manager] 

said that I was out of line and that he was going to 

take this to court and that he was going to call my 

superviso[r]. I told him that it was all right with 

me if he took the citation to court. He ask[ed] me 

if I had ever worked around shale. I told him that 

I had worked around shale a lot and that [is] why I 

knew that you can not tell if the top is good just 

by looking at it. [The mine superintendent] said 

that the roof was checked by the foreman before the 

shift started. I told him that the foreman by his 

own statement said that he checked the roof by 

looking at it, not testing it. [The superintendent] 

said that he did not think it was right for me to 

give them a citation and looked and sounded mad •••• 

The inspector's subsequent formal accident report notes, however, that 

the "cooperation of company officials and employees during this investigation is gratefully acknowledged." 

On January 5, 1981, MSHA filed with the Commission its proposal for 

a penalty, seeking a penalty of $2,500 for the~alleged violation. The 

narrative findings for a special assessment, attached to the proposal, 

allege that the gravity of the violation was serious and that the 

violation resulted from the operator's negligence. Inverness filed an 

answer, denying that it had violated the standard. 

!:_/ Section 57.3-22 provides: 

Mandatory. Miners shall examine and test the back, face, and 

rib of their working places at the beginning of each shift and 

frequently thereafter. Supervisors shall examine the ground 

conditions during daily visits to insure that proper testing and 

ground control practices are being followed. Loose ground shall be 

taken down or adequately supported before any other work is done. 

Ground conditions along haulageways and travelways shall be examined 

periodically and scaled or supported as necessary. 

1385 
On February 6, 1981, the Commission administrative law judge issued 

a notice of hearing and pretrial order which required the-parties to 

make extensive submissions of information relevant to the case. In its 

first response, Inverness contended that the back, ribs, and face of the 

drift 'had been examined, tested, and scaled down prior to the accident. 

The operator submitted a number of signed and notarized statements from 

its employees obtained by Inverness' safety director. 

' In his statement, the victim claimed that there "was no loose stuff 

on the walls whatsoever," that he and a co-worker made "a visual inspection of everything" when they started work, and that "you could tell 

definitely that [the area] had been scaled down, and there was no loose 

shale or rock hanging anywhere ••• that you could see." A statement 

from the foreman on the preceding shift indicated that during that 

shift, scaling and barring were done in the drift. In his statement, 

the second shift foreman stated he "inspect[ed]" the drift at the start 

of his shift, that the drift "was bolted right up to the working face," 

and that there "was no loose material hanging anywhere." Finally, 

Inverness submitted the daily work inspection log, which includes 

notations that preshif t and onshif t inspections were made in the drift 

in question. 

On October 13, 1981, following the various submissions summarized 

above, the parties filed a jointly signed motion to dismiss and approve 

settlement. The motion proposed an "agreed penalty" of $1,000. The 

parties also stipulated that respondent demonstrated "ordinary or low 

negligence." The parties made the following representations: 

The company inspected the mine on a preshift inspection 

and on a shift inspection as evidenced by the company 

records presented in response to the Court's pretrial 

order. This page was copied from the Work Inspection 

Log of Inverness •••• 

The statements ascertained by both [MSHA] and Inverness 

are replete with contradictions. The Accident 

Investigative Report concludes the cause of the accident was the failure of the miners to examine and test 

the back and face of the drift and the failure of the 

operator to insure that this was done. A reading of 

the transcriptions of the tapes [of oral statements] 

indicates that the face looked "pretty good, and the 

injury occurred when [the victim's co-worker] scratched 

the rock in one of the holes." 

Every statement submitted by respondent conflicts with 

the original statements made at the time of or near 

the day of the accident. Each statement received from 

the employees indicates that the drift had been scaled 

down with the heading roofbolted .•• up to the working 

face which is contradictory to the citation itself 

which states that the back of the drift was not tested 

before the beginning of the work shift. 

138G 
After the judge received the parties' motion, he engaged in telephone conversations with counsel for Inverness. In those conversations, 

he indicated that he would not approve a $1,000 penalty and suggested a 

$1,500 penalty instead. On October 31, 1981, Inverness' counsel sent 

the judge a letter in which he stated: 

Pursuant to our previous telephone conversation, I 

am hereby confirming that the Inverness Mining 

Compqny agrees to settle this matter by payment 

of a $1,500 penalty rather than the $1,000 mentioned 

in the Motion to Dismiss •••• 

The judge granted the settlement motion, approved a $1,500 penalty, 

and dismissed the case. In the course of granting the relief sought and 

agreed to by the parties, the judge expressed certain opinions that are 

the subject of Inverness' petition for review. First, the judge attributed the accident mainly to managerial production pressure and a lax 

attitude towards safety: 

The accident investigation established that at the 

beginning and throughout the shift the miners and 

their supervisor were at all times aware of the 

fact that there was questionable shale at the back of 

the drift, but tha~ due to the pressure to catch up 

with production the miners and their supervisor decided to take a chance that it could be worked without testing. That this was in accord with the policy 

of top management was established by the angry reaction 

of the plant manager ••• and the superintendent ••• 

to the inspector's decision to issue the citation. 

It is just this "take a chance" attitude toward safety 

that leads to so many fatal and disabling accidents •••. 

Here experienced miners were encouraged to ignore 

sound safety practices because the top management of 

a new operation was pushing for production. 

3 FMSHRC at 2576. 

Second, the judge accused the operator of questionable litigation 

tactics: 

Top management's attitude alone justified the penalty 

of $2,500 originally proposed. Because of the effort 

made to muddy the waters, MSHA proposed a settlement 

of $1,000 or 40% of the amount initially proposed. 

The trial judge rejected this and suggested $1,500. 

This proposal was accepted by counsel for the operator 

on October 31, 1981. 

[I]t is my opinion that this operation bears close 

scrutiny and that unless top management's attitude 

changes serious violations will continue to occur. 

I will expect that the next time around the Solicitor 

will recognize that miners who are induced to contradict their contemporaneous statements are still 

1387 
reliable witnesses of what actually transpired and 

that little weight is to be accorded self-serving 

afterthought statements elicited under pressure from 

the operator. 

3 FMSHRC at 2576-77. 

Inverness ultimately asks the Commission on review "to set aside 

the decision and order entered by the [judge] insofar as his conclusions 

are inconsis·tent with the motion to dismiss and approve settlement." 

Petition at 9 (emphasis added). Inverness does not request the Commission to reduce or to vacate the $1,500 penalty. l_/ 

We have examined the record, the salient portions of which are 

summarized above, and fail to find evidentiary support for the judge's 

critical comments. No statement lends support to his observation that 

this particular operator had a "take a chance" attitude towards safety 

out of its desire or policy to increase production. The "angry" 

reaction of company officials to the citation seems nothing more than 

the exchange of disagreements to be expected at many close-out conferences. Certainly, operators have the right to take MSHA "to court." 

The inspector himself in his accident report expressly thanked Inverness 

officials for their cooperation with his investigation. Similarly, 

there is nothing in the record that indicates Inverness' employees were 

"pressured" to change their statements in an effort "to muddy the 

waters." The statements do conflict, but only trial and cross-examination could have revealed the credibility of the employees and the 

veracity of their various statements. Accordingly, we disapprove and 

strike, for lack of record foundation, the judge's criticisms of the 

operator's safety attitudes and litigation tactics contained in the 

passages from the three paragraphs of his decision quoted above. 

3/ The operator states that "it is interesting to note the circumS-tances under which [the] $1,500 [penalty] was arrived at." Petition at 

2. Inverness points to its request that the hearing be held in Indiana, 

and then refers to the judge's telephone calls on the subject of settlement. The operator alleges that the judge "suggested" a $1,500 penalty 

"or else a prehearing conference would be held in Washington, D.c.,· and 

thereafter a hearing would be held in Washington, D.C. The Inverness 

Mining Company, recognizing the economics of the 'choice' that [the 

judge] 'suggested,' reluctantly consented to a $1,500 settlement figure." 

Petition at 2-3. After review was granted, the judge filed with the 

Commission his own affidavit, in which he denied pressuring Inverness to 

settle. Inverness does not present any due process argument in connection with this incident. While we need not address this matter in 

detail, it illustrates the risk of possible misunderstandings, conflicting interpretations, and differing recollections, resulting from a 

judge's telephonic communications on such matters with one party off the 

formal record. Such a practice is not condoned or approved by this 

Commission. See generally Knox County Stone Co., Inc., 3 FMSHRC 2478 

(November 1981). 

1388 
No party objects to the remainder of the judge's decision, and it 

is supported by the record. The parties agreed to a $1,500 penalty and, 

among other things, stipulated to the operator's negligence. The mine 

did not have a significant prior history of violations. Based on our 

review of the record, we conclude that the penalty is consistent with 

the six statutory penalty criteria. 30 U.S.C. § 820(i)(Supp. V 1981). 

Therefore, we affirm the judge's settlement approval on the narrow 

grounds on which it actually rests. 

For the foregoing reasons, we affirm the judge's approval of the 

$1,500 penalty in settlement of this case as modified. 

A. E. Lawson, Commissioner 

L. 'J-~11.u~ Clair Nelson, Commissioner 

1389 
· Distribution 

Linda Leasure 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Gordon E. Maag, Esq. 

Walker and Williams 

4343 West Main Street 

Belleville, Illinois 62223 

John Mcclurg, President 

Seaforth Mineral & Ore Co., Inc. 

P.O. Box 22290 

Cleveland, Ohio 44122 

Administrative Law Judge Joseph Kennedy 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1380 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND·HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 8, 1983 

EX REL. BENNETT,. COX, ET AL. 

Docket No. WEST 80-489-D(A) 

UNITED MINE WORKERS OF AMERICA, 

Intervenor 

v. 

EMERY MINING CORPORATION 

DECISION 

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

1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981), and involves the 

interpretation of sections _115 and 105(c) of the Act. An administrative 

law judge of this Commission determined that section 115(b) imposed an 

obligation on operators to provide and pay for new miner training and, 

as a corollary, granted miners a statutorily protected right to receive 

training. He concluded that Emery's policy of requiring job applicants 

to have 32.hours of miner training as a qualification for employment 

denied them their right to receive such training, and discriminated 

against them in violation of section 105(c) of the Act. ];./ 

For the reasons that follow, we affirm the judge's conclusion that 

Emery violated the Mine Act, but do not agree with his determination 

that Emery's hiring qualifications policy constituted a per se violation 

of the Act. Rather, we hold that Emery violated the Act by refusing to 

reimburse the complainants for wages for the time spent in training and 

the cost of their training, while relying on that training, following 

their employment by Emery, to fulfill the requirements of section 115. 

The facts in this case are uncontroverted. The twelve complainants 

are employed as underground miners by Emery Mining Corporation. 

1/ The judge's decision is reported at 3 FMSHRC 2648 (November 1981) 

(ALJ). After the hearing before the judge, the Secretary was granted 

leave to amend his complaint to add 127 complainants. The judge then 

severed the amended complaint from the present case and assigned it 

docket number WEST 80-489-D(B). 3 FMSHRC at 2659-60. That case is now 

pending before the administrative law judge. 

1391 83-8-4 
As a pre-condition for employment, Emery required completion of 32 hours 

of safety ~raining for underground miners at an MSHA-approv~d miners' 

training course. 3 FMSHRC at 2650. 2/ Emery did not reimburse those 

hired either for the cost of the training or pay wages for the hours 

spent in training. Emery did, however, rely on the training tha~ new 

hires had acquired, at their own expense, to satisfy the training 

requirements of the Mine Act. 

Emery's policy 6f accepting applications only from those who had 

completed a training course began Jpnuary 1, 1980. Prior to that time, 

Emery sent newly hired miners to the College of Eastern Utah for training, 

and gave the requisite further training at Emery's facilities. 3 FMSHRC 

at 2653. The judge found, "The new policy was that no person would be 

hired unless he had completed a new miner orientation program through an 

MSHA approved institution (Tr. 82)." 3 FMSHRC at 2654. 3/ The judge 

further found; "The reason for Emery's change in personnel policy was 

to screen out those persons who weren't interested in a mining career 

and thereby reduce the turnover rate (Tr. 89, 96)." Id. 

The complainants in this cas~ successfully completed the training 

courses at their own expense. The record shows the costs to eight of 

the complainants for tuition as well as estimates of their transportation 

expenses to and from the courses. 3 FMSHRC at 2651-54. For two of the 

twelve complainants, the cost of motel rooms and meals is in the record, 

and another of the complainants testified to the cost of four lunches. 

3 FMSHRC at 2652. Upon completion of training, Emery checked the 

complainants' references and, after physical examinations, they were 

hired. 3 FMSHRC at 2650. The starting wage for each complainant is 

in the record. 

The judge first examined section 115 of the Mine Act and the legislative history relating to miner training in order to determine the 

statutory rights granted to miners by that section, and whether Emery's 

policy was in violation thereof. !:!:../ He concluded that section 115 places 

2/ In addition to notifying applicants for employment who came directly 

to the mine of its policy, Emery also notified the State of Utah's Job 

Service which often referred job applicants to Emery. Of the complainants 

in this case, five went to Emery and were informed of its policy, and 

three went to Job Service and were told there that 32 hours of miner 

training was required. There is no information on this point concerning the four remaining complainants. 

3/ Emery had experienced a high turnover rate of 48% during 1979 among 

its inexperienced miners. Emery hired 450 miners and 190 terminated in 

the first 3 months. The judge found that the turnover rate was reduc~d . . 

to 25% after January 1980, but also found that the evidence did not reveal 

the exact cause of the reduction. 

!±_/ Section 115 states in part: 

(a) Each operator of a coal or other mine shall .have a 

health and safety training program which shall be 

approved by the Secretary •••• Each training program 

approved by the Secretary shall provide as a minimum 

that - · 

(Foot~ote continued) 
the responsibility for, and the cost of, training miners on the operator. The section also requires that new miners be provided with 40 hours 

of training. The judge held that by requiring its prospective miners to 

obtain 32 hours of pre-employment training, Emery left itself responsible 

for only eight hours of training, and improperly shifted the burden of 

those 32 hours of training to the complainants. 3 FMSHRC at 2654-55, 2659. 

The judge further held that the requirements of section 115(b) were not 

satisfied by Emery because the complainants did not receive any compensation while they attended their training courses, and were not reimbursed 

for costs of attending the training. 3 FMSHRC at 2655. The judge found 

that the legislative history of the Mine Act supported his interpretation 

of section 115. He held that Emery's policy "clearly violate[d] section 

115 of the Act." 3 FMSHRC at 2659. 

The judge next considered whether the company's policy "constitute[d] 

a discriminatory practice under Section 105(c) of the Act." 3 FMSHRC 

at 2656. 5/ The judge held that the complainants were "applicants 

Fn. 4/ continued 

(1) new miners having no underground mining 

experience shall receive no less than 40 hours 

of training if they are to work underground. 

(b) Any health and safety training provided under subsection {a) shall be provided during normal working 

hours. Miners shall be paid at their normal rate of 

compensation while they take such training, and new 

miners shall be paid at their starting wage rate 

when they take the new miner training. If such 

training shall be given at a location other than the 

normal place of work, miners shall also be compensated 

for the additional costs they may incur in attending 

such training sessions. 

5/ Section 105(c)(l) provides in part: 

No person shall discharge or in any manner discriminate 

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, ••• or 

because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer ••• 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 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. 

139J 
for employment" under section 105(c). 3 FMSHRC at 2656-57. He noted the 

broad scope of the discrimination section and its express ·inclusion of 

"applicants for employment" in its coverage. The judge held that the 

statutory right to safety training and compensation is therefore protected from interference by section 105(c) of the Act, and Emery 

discriminated against the complainants by requiring them to secure 

training on their time at their expense. 3 FMSHRC at 2657. 

The judge awarded each miner compensation at his starting rate 

for the four days of training, the amount of tuition paid, and the 

expenses incur.red in taking the training course plus 12.5% interest. 

A penalty of $1,000 for the violation of section 105(c) was assessed 

also. 6/ 

We granted Emery's petition for review, and allowed the United Mine 

Workers of America to intervene. Oral argument was heard before us on 

October 20, 1982. The questions on review are: What rights are granted 

to miners by section 115 of the Act; whether Emery interfered with those 

rights in violation of the Act; and, if interference is shown, what 

remedy is due the complainants. We turn to examination of the first two 

issues, and will address the remedy separately. 

Section 115 sets forth miner training requirements under the Mine 

Act. It neither dictates whom an operator should hire, nor refers 

to qualifications for hire. Indeed, the parties and the judge agree 

than an operator could hire only experienced miners and not run afoul 

of section 115. In this case, however, we are concerned specifically 

with section 115's requirements for training "new miners." 

Section 115(a) requires operators to have an approved health and 

safety program that provides 40 hours of training to "new miners" who 

will work underground. It also mandates that an operator who hires 

new miners. pay them at their "starting wage rate" while they are being 

trained, and compensate them for "additional costs" incurred in receiving training away from the mine. Section 115(b). Section 115 does not 

refer to a new miner's duty to obtain training but rather to an 

operator's responsibility to provide it. 2/ The legislative history 

of this section also demonstrates that the responsibility to ensure 

that new miners are trained unquestionably is imposed by statute upon 

the operator. See S. Rep. No. 181, 95th Cong., 1st Sess. 50 (1977), 

reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 

95th Cong.-,-2d Sess., Legislative History of the Federal Mine Safety 

and Health Act of 1977, at 638 (1978)("Legis. Hist"); S. Conf. Rep. 461, 

95th Cong., 1st Sess., 61-63 (1977), reprinted in Legis. Hist. 1339-41. 

Further, this section imposes a duty on the operator to see that new 

miners are trained before they begin their mining tasks. See National 

Indus. Sand Ass'n. v. Marshall, 601 F.2d 689, 710 (3d Cir.-:l979). 

6/ No issues concerning the rate of interest assessed on the awards 

or the penalty are presented on review. 

7/ Similarly, section 104(g) of the Mine Act protects from retaliation 

miners who are discovered working without the required training; it also 

requires an operator to pay a miner removed from the mine under 104(g) 

while that miner receives the necessary training. 

13~4 
We conclude that section 115 grants two separate, related rights 

to new miners: To receive 40 hours of safety training before working 

underground and to be compensated for the time and expenses of that 

training by the mine operator. The right to training is assured by 

section 115(a). The right to compensation for the time and expenses 

of training is specifically provided in section 115(b). As we discuss 

more fully below, failure to compensate miners for the time and costs 

of training relied upon by an operator to fulfill its statutory obligations interferes with the new miners' rights. Here the complainants 

had been hired by Emery and worked in Emery's mine. They were all 

inexperienced miners when they took the training course and Emery was 

their first employer after they received safety training. Thus, once 

hired, they became new miners under the Act entitled to the rights 

granted by section 115(a) and (b). 

Section 105(c)(l) of the Mine Act prohibits interference with rights 

provided by the Act, including rights provided under section 115. The 

Senate Committee on Human Resources, which largely drafted the bill that 

became the Mine Act, specifically mentioned safety training in discussing 

the discrimination section of that bill: 

The Committee also intends to cover within the ambit of 

this protection any discrimination against a miner which 

is the result of the safety training provisions of section 

11[5] or the enforcement of those provisions under section 

10 [ 4] [ g] • 

Legis. Hist. 624. Further, as we noted in Moses v. Whitley Development, 

4 FMSHRC 1475, 1478 (August 1982), Congress expressed in the same passage 

of legislative history its intention that section 105 protect miners "not 

only against the common forms of discrimination, such as discharge, 

suspension, demotion ••• , but also against the more subtle forms of 

interference •••• " Id. Thus, section 105(c) prohibits denial of or 

interference with the right to receive safety training. We next 

consider the specific question of whether Emery interfered with these 

complainants' rights by requiring them to obtain training prior to 

applying for employment, and by relying on, and refusing to reimburse 

them for, their training after hiring them. 

Initially we note our divergence from the judge's conclusion that 

Emery's policy of requiring the training prior to employment violated 

the Mine Act. An employer has the right to choose its employees. See 

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45-46 (1937). This 

principle has been stated succinctly as follows: "[A]n employer may 

exercise its right to refuse to hire for any reason or no reason at all 

as long as statutory or constitutional provisions are not violated." 

Carter v. Seaboard Coast Line Railroad Co., 392 F. Supp. 494, 499 (S.D. 

Ga. 1974). Further, statutes that potentially limit an employer's right 

to select its employees, for example Title VII, are not violated when an 

employer refuses to hire an applicant protected by such an Act because 

the applicant lacks bona fide occupational qualifications. See,~·· 

Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971). We believe that in 
the Mine Act Congress did not restrict a mine operator's prerogative of 

setting pre-employment qualifications based on experience or training. 

Thus, Emery's policy of requiring inexperienced job applicants to obtain 

32 hours of MSHA-approved training prior to hire does not violate the 

Mine Act. 

Emery did, however, violate section 105(c) when, after hiring the 

complainants as new miners, it refused to compensate the miners for 

their 32 hours of training and yet relied on that training to satisfy 

its training obligations to them under section 115. Emery provided 

only eight of the forty hours of training required by section 115(a); 

the operator relied on the prehire 32 hours of training for which the 

complainants themselves had paid to comply with the full requirements 

of the Act. (Emery supplied the 8 hours of mine-specific training 

required by section 115(a)(5) and 30 C.F.R. § 48.5.) Emery thus 

attempted to discharge its statutory obligations by obtaining the 

"benefit" of the new miners' prehire MSHA training without reimbursing them for the cost of that training. This action circumvented the 

statutory mandate that operators provide and pay for new miners' 

training, and thus interfered with the new miners' rights under section 

115 in violation of section 105(c)(l). If Emery's approach to compliance 

with section 115 were adopted throughout the mining industry, section 115 

would effectively be read out of the Act and the cost of training would 

be shifted from operators to miners. In short, if Emery wished to rely 

on the prehire training to satisfy its statutory obligation to provide 

training for new miners, it must compensate the new miners for that 

training. 

We emphasize that our decision is limited to the facts of this case: 

Emery was the first operator for whom these new miners worked upon completing their 32 hours of training; they undertook the prehire training because 

of Emery's hiring policies; the complainants were not reimbursed for their 

training after hire; and Emery took advantage of that unreimbursed training 

to attempt. to comply with section 115. Emery, in effect, "provided" that 

training under section 115. Therefore, under section 115(b), Emery must 

reimburse the complainants for the cost of their training, and the equivalent of wages for four days, at their starting pay rate, for the time 

spent in training. 

We also emphasize that none of the Secretary's otherwise extensive 

training regulations at 30 C.F.R. Part 48 addresses the situation encountered 

in this case. Our decision therefore is based on the statute; there simply 

is no relevant training regulation bearing directly on the issue. 

We now turn to the remedial aspects of the judge's decision. The 

judge awarded each miner the amount of tuition paid for the training 

course which that person attended and four day's wages at the starting 

wage rate. He also awarded some miners the expenses incurred in attending 

the courses, including an allowance for mileage for six miners, the cost 

of meals and a motel for two miners, and the cost of meals alone for one 

miner. Emery does not challenge the amount of tuition or back pay awarded, 

but rather argues in its petition for review and accompanying briefs 

that the judge erred in calculating the amount of other expenses to be 
reimbursed to ·the complainants. Emery urges that, under section llS(b), 

the miners are entitled only to those expenses "above and beyond that 

which an individual would have incurred had he taken the training at 

the mine." Emery br. at 13. 

At the hearing, counsel for the Secretary introduced evidence on 

the distance each miner traveled, the tuition fee paid, and incidental 

expenses. This was received into the record without objection and was 

before the judge when he made his findings. The issue now raised was 

not first presented to the judge below. The question of appropriate 

remedy, therefore, is not properly before us in this case. See section 

113(d)(2)(A)(iii) of the Mine Act. Accordingly, we do not disturb the 

judge's award of damages, and leave for another day discussion of the 

correct measure of relief for similar violations of section 105(c) 

and/or 115 of the Mine Act. 

On the bases explained above, we affirm the decision of the 

administrative law judge. 

y I 

139/ 
Distribution 

Linda Leasure 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Mary Lu Jordan 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

333 West Colfax, Suite 400 

Denver, Colorado 80204 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MONTEREY COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 10, 1983 

ORDER 

Docket Nos. LAKE 80-413-R 

LAKE 81-59 

Upon consideration of the petition for reconsideration of the 

Commission's June 13, 1983, decision in this matter, and the opposition 

thereto, the petition is denied. The request for reconsideration 

identifies no material factual or legal issue that was not fully 

considered, addressed, and resolved by the Commission. Therefore, 

further consideration by us is not warranted. 

1 

! 

Rosemary: 

[~J,.d~u-- Collyer, Gairman 

L. Clair Nelson, Commissioner 

1398 83-8-5 
FEDERAL MINE SAFETY AND HEALTH REVIEW 'COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION,,, {MSHA) , 

v. 

EMERY MINING CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 11, 19.83 

DECISION 

Docket Nos. WEST 81-400-R 

WEST 82-48 

WEST 82-80 

This consolidated proceeding under the 1977 Mine Act, 30 U.S.C. 

§ 801 et~· (1976 & Supp. V 1981), involves the interpretation and 

application of 30 C.F.R. § 48.8(a). The cited mandatory standard 

provides that: 

Each miner shall receive a minimum of 8 hours of 

annual refresher training as prescribed in this 

section. 

The administrative law judge concluded that the regulation requires that 

refresher training be given once every calendar year, and dismissed the 

proceeding because the calendar year in question had not ended when the 

Secretary of Labor issued the withdrawal order that initiated the case. 

4 FMSHRC 1450 (July 1982)(ALJ). For the reasons set forth below, we 

reverse and hold that the key language, "annual refresher training," 

means that refresher training is to occur within twelve months of the 

last received training. 

The essential facts are not in dispute. On September 9, 1981, a 

Mine Safety and Health Administration ("MSHA") inspector issued Emery 

Mining Corporation a withdrawal order under section 104(g)(l) of the 

Mine.Act. 1/ The order stated that five of Emery's miners at one of its 

underground mines had not received the minimum 8 hours of annual refresher 

training. The five miners had all received refresher training in June 

1980. Thus, at the time of the withdrawal order, fifteen months had 

elapsed since their last training. 

!/ Section 104(g)(l)(30 U.S.C. § 814(g)(l)) directs the Secretary to 

issue a withdrawal order withdrawing miners from a mine if the Secretary 

finds that the miners have not received their requisite training under 

section 115 of the Act (30 U.S.C. § 825). 

83-8-6 
The administrative law judge concluded that complianc~ with section 

48.8(a) is achieved if retraining occurs by December 31 of the calendar 

year following the calendar year in which the last training had been 

given. Tde judge acknowledged that Congress may have intended that refresher training be given within twelve months of the previous training. 

However, he determined that section 48.8(a) controlled and that the 

regulation mandates only calendar-year training. In reaching this conclusion, the judge relied upon language in some of the Secretary's other 

regulations dealing with the training of miners as well as on Emery's 

training plan app:;.:oved by MSHA. He specifically found that Emery had 

notified MSHA that training would be given "By December 31st Annually" 

on the MSHA form asking "PREDICTED TIME WHEN REGULARLY SCHEDULED REFRESHER TRAINING WILL BE GIVEN." Since this response was approved by 

MSHA, the judge concluded that only calendar year retraining was mandated. 

He then applied these findings and conclusions to the sequence of 

training dates for the five miners involved and held that Emery had not 

violated section 48.8(a) as to any of the miners. We disagree. 

The regulation must be interpreted in light of the statutory provisions that it implements. Section 115(a)(3) of the Mine Act states in 

relevant part: 

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--

(3) all miners shall receive no less than eight 

hours of refresher training no less frequently than 

once each 12 months, except that miners already employed on the effective date of the Federal Mine 

Safety and Health Amendments Act of 1977 shall receive 

this refresher training no more than 90 days after 

the date of approval of the training plan required by 

this section •..• 

30 U.S.C. § 825(a)(3)(emphasis added.) We first construe the meaning of 

the statutory words, "no less frequently than once each 12 months." 

1401 
The overall scheme of section.115 is one of sequential, periodic 

training. A new mirier receives 40 hours of training if he is to work 

underground, or 24 hours if he is to wor_k on the surface. Sections 

115(a)(l) & (2). J:/ All miners thereafter must receive at least 8 hours 

of refre~her training, in accordance with the requirement stated in 

section 115 (a) (3), supra. To determine the timing for refres_her training 

"no less frequently than once each twelve months," an operator necessarily 

must determine when the previous training session occurred. Thus, the 

scheduling of refresher training is dependent upon a sp~cific event or 

date -- that is, a miner receives refresher training "no less frequently 

than once each t\;elve months" from the completion of the previous training 

session. This interpretation of the statutory words accords with well 

established principles of construction that periods of time associated 

with an event or contingency ordinarily imply an anniversary connotation. 

See, for example, Matter of PRS Products, Inc., 574 F.2d 414, 419 (8th 

Cir. 1978). More important, a twelve-month interval between training 

sessions far better accomplishes the safety objectives of section 115 

and the Mine Act as a whole than a calendar-year approach, which could 

permit almost twenty-four month intervals between training. 

Because the regulation in issue was promulgated to effectuate the 

statute, we therefore apply to the regulation the same anniversary 

interpretation given its statutory counterpart. The operator contends 

that the Secretary's choice of "annual" as a "catchword for the corresponding statutory phrase" (Sec'y Br. at 6) renders the regulation 

unclear on its face. Although "annual" could refer to twelve-month 

2/ Sections 115(a)(l) & (2) provide: 

••• Each training program approved by the Secretary shall provide 

as a minimum that--

(1) 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, 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; 

(2) new miners having no surf ace mining experience shall receive no less than 24 hours of training if they are to work 

on the surface. Such training shall include instruction in 

the statutory rights of miners and their representatives under 

this Act, use of the self-rescue device where appropriate, hazard 

recognition, emergency procedure electrical hazards, first aid, 

walk around training and the health and safety aspects of the 

task to which he will be assigned •..• 

30 U.S.C. §§ 825(a)(l) & (2). 

1 ~ 'l ') '1 \.; {',, 
intervals, it might also be construed to connote a calendar year beginning 

January 1 and ending December 31. However, when "annual"· is read, as it 

must be, in conjunction with the clear statutory mandate for refresher 

training at twelve-month intervals, any possible facial ambiguity is 

dissipated. We therefore hold that 30 C.F.R. § 48.8(a), implementing 

section 115 of the Act, requires refresher training to be given within 

twelve months of the last received training. In view of our decision, 

the Secretary may wish to consider clarifying the regulation through 

amendment. 

We also rej~ct Emery's argument that MSHA's approval of its training 

plan constituted a "contemporaneous construction" of the regulation in 

favor of a calendar year interpretation. The judge found that MSHA's 

approval of Emery's insertion of the words, "By December 31st Annually", 

in provision number 6 of the plan was tantamount to approval of refresher 

training on a calendar-year basis. Substantial evidence does not 

support the conclusion that MSHA knowingly agreed to a retraining plan 

on a calendar-year basis. Emery and MSHA officials appear to have read 

provision number 6 to mean the date when Emery would notify MSHA of the 

specific dates that its miners would undergo refresher training, rather 

than a date specifying when each miner's refresher training was to 

occur. ]_/ One Emery witness testified that an MSHA representative at a 

joint meeting of MSHA and Emery officials envisioned that there would be 

a number of notifications coming out throughout the year as refresher 

training for miners arose. Tr. 76-77. Moreover, the simple act of 

)_/ For example, Emery's assistant training director testified: 

Q. [B]ut putting one date in there that just happened to be the 

last date of the year did not resolve that, did it? 

A. Resolve what? 

Q. The agency's problem. That plan does not put them on notice 

when a refresher training is going to take place, does it? 

A. No, it does not. Not the December 31st date. 

* * * * 

Q. [A]nd the fact that the agency was concerned about when they 

would be notified of a refresher training does not even touch 

on the subject of the period in between the refresher training 

does it? 

A. No, it doesn't. 

Tr. 63, 64. 

140 .. ~ 
approving one operator's training plan would not constitute a dispositive or consistently-applied national pronouncement by the administrative agency that would amount to a "contemporaneous construction" of 

the regulation. See Florence Mining Co., 5 FMSHRC 189, 196 (February 

1983), petition for review filed, 3rd Cir., March 15, 1983; King Knob 

Coal Co., 3 FMSHRC 1417, 1420-21 (June 1981). 

Emery's "contemporaneous construction" claim could also be read as 

an estoppel defense, in that MSHA's approval of Emery's training plan, 

assuming it provided for calendar year retraining, estopped the Secretary 

from enforcing section 48.8(a) against Emery. We adhere to our position 

in King Knob Coal Company, supra, that under Federal Crop Insurance Corp. 

v. Merrill, 332 U.S. 381 (1947), estoppel does not run against the 

federal government. 3 FMSHRC at 1421-22. We note, however, that some 

confusion did surround MSHA's approval of Emery's training plan, and the 

government appears partly responsible for the situation. In King Knob, 

we held that confusing governmental enforcement mitigated the degree of 

an operator's negligence in the assessment of civil penalty. 3 FMSHRC 

at 1422-23. On remand, the judge can apply this mitigating principle 

in assessing Emery's negligence. 

For the foregoing reasons, we reverse the judge's decision. The 

stipulated facts show a violation of section 48.8(a) as to the five 

miners in question. We remand for a determination of penalty in light 

of our decision in King Knob. 

L. Clair Nelson, Commissioner 
Distribution 

Linda Leasure 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 

Mary Lu Jordan 

UMWA 

900 15th St., NW 

Washington, D.C. 20005 

Administrative Law Judge Charles C. Moore 

Federal Mine Safety and Health Review Connnission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22043 

1400 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 12, 1983 

LOCAL UNION 1889, DISTRICT 17, 

UNITED MINE WORKERS OF AMERICA 

v. Docket No. WEVA 81-256-C 

WESTMORELAND COAL COMPANY 

DECISION 

This is a compensation proceeding arising under section 111 of the 

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

(1976 & Supp. V 1981). The United Mine Workers of America ("Union") 

sought, in part, one week's compensation based on an imminent danger 

withdrawal order issued under section 107(a) of the Mine Act to 

Westmoreland Coal Company following an explosion at one of the 

company's mines. The Union requested in the alternative that if the 

judge were not prepared to resolve that claim, he reserve a final 

decision until the Department of Labor's Mine Safety and Health 

Administration ("MSHA") completed its investigation of the cause of 

the explosion. The Union believed that MSHA would then terminate 

the order either with or without modifying it to allege a violation 

of a mandatory health or safety standard. J:./ 

The judge denied the Union's claim for a week's compensation 

because the language of the order, as it currently stands, does not 

contain an allegation that the operator failed to comply with any 

mandatory health or safety standard. He also declined to retain jurisdiction and dismissed the claim without prejudice. The Union's petition 

for discretionary review raises the issue of whether the judge should 

have retained jurisdiction over the proceeding. For the reasons that 

follow, we vacate the judge's order dismissing the claim for one week's 

compensation without prejudice and remand for further proceedings. II 

The facts were stipulated by the parties. 2./ In the early morning 

hours of November 7, 1980, an explosion occurred inside Westmoreland's 

1/ Section 111 provides for miners' compensation for up to one week only 

if the miners are idled by a section 104 or section 107 order issued "for 

a failure of the operator to comply with any mandatory health or safety 

standards." See full text of section 111, note 7, infra. 

2/ The Secretary of Labor was not a party below but has filed an amicus 

brief before the Commission. 

3/ The parties filed a set of joint stipulations on February 5, 1982, 

which are incorporated in the judge's decision at 4 FMSHRC 773, 774-75 

(April 1982)(ALJ). 

1408 

83-8-9 
Ferrell No. 17 mine, an underground coal mine located in West Virginia. 

When management became aware th.at an explosion occurred, it withdrew the 

miners working on the 12:01 a.m. to 8:00 a.m. shift from the mine. At 

7:30 a.m. an MSHA inspector issued withdrawal order No. 0668337 pursuant 

to section 103(j) of the Mine Act. 4/ The order applied to .all areas of 

the mine, and provided in part: 

An ignition has occurred in 2 South off 

1 East. Th.is was established by a power 

failure at 3:30 a.m. and while searching 

for the cause of the power failure, smoke 

was encountered in the 2-South section. 

Five employees in the mine could not be 

accounted for. [The area or equipment 

involved is] the entire mine •••• 

At 8:00 a.m. on November 7th, one half hour after the 103(j) order 

had been issued, an MSHA inspector issued Order No. 0668338 pursuant to 

section 107(a) of the Mine Act. }_/ This imminent danger withdrawal order, 

which also applied to all areas of the mine, did not allege a violation 

of any mandatory health or safety standard. The order stated: 

All evidence indicates that an ignition of 

unknown sources has occurred and five 

employees cannot be accounted for. 

4/ Section 103(j) provides: 

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

mine, the operator shall notify the Secretary thereof and shall 

take appropriate measures to prevent the destruction of any 

evidence which would assist in investigating the cause or causes 

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

mine; where rescue and recovery work is necessary, the Secretary or 

an authorized representative of the Secretary shall take whatever 

action he deems appropriate to protect the life of any person, and 

he may, if he deems it appropriate, supervise and direct the rescue 

and recovery activities in such mine. 

30 u.s.c. § 813(j). 

}_/ Section 107(a) provides: 

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

mine which is subject to this Act, an authorized representative of 

the Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an order requiring 

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

referred to in section 104(c), to be withdrawn from, and to be 

prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and 

the conditions or practices which caused such imminent danger no 

longer exist. The issuance of an order under this subsection shall 

not preclude the issuance of a citation under section 104 or the 

proposing of a penalty under section 110. 

30 U.S.C. § 817(a). 

140'( 
The bodies of all five miners were recovered on November 8, 1980. 

Subsequently, the 2-South area of the mine was sealed off. On 

December 10, 1980, both orders were modified to show that the area of 

the mine affected by the orders was limited to the seals and the area 

inby the seals. Neither of the orders has been terminated so that they 

both remain in effect. 

The miners who were withdrawn from the mine during the 12:01 a.m. to 

8:00 a.m. shift on November 7, were paid for their entire shift. Seventysix miners were expected to work the November 7 day shift (8:00 a.m. to 

4:00 p.m.) at the mine. Eight of these miners reported for work, remained 

at the mine, worked for eight hours, and were fully paid for that work. 

At least some of the remaining sixty-eight miners, however, were prevented 

from entering the mine property by state police, who had erected a roadblock at the entrance to Westmoreland's property. Westmoreland later paid 

all sixty-eight miners four hours of compensation. ~/ 

On February 5, 1981, the Union filed its original complaint for compensation under section 111 of the Mine Act. 7/ The complaint alleged 

that "the imminent danger that existed on November 7, 1980, and which led 

to the issuance of Order Nos. [0668337] and [0668338] was caused by the 

operator's failure to comply with mandatory safety and health standards." 

Complaint at 4. Thus, under the third sentence of section 111, the Union 

claimed that each miner was entitled to up to one week's compensation 

based on the imminent danger order. The Union subsequently filed an 

amended complaint on November 9, 1981, seeking limited compensation for 

both the 103(j) and 107(a) orders under the first two sentences of 

section 111. The Union also repeated its original claim for a week's 

compensation under the third sentence of section 111. 

6/ Westmoreland broadly characterized the payment of 4 hours to the 

day shift as "compensation." It argued that the payment of 4 hours 

compensation fulfilled both the "reporting pay" obligations under its 

collective bargaining agreement with the Union and section 111 of the 

Mine Act. The judge found the miners were entitled to four hours 

reporting pay under the contract and four hours under section 111. 4 

FMSHRC 776-79. This issue is not raised on review. 

7/ The first three sentences of section 111 provide: 

- [l] If a coal or other mine or area of such mine is closed by 

an order issued under section 103, section 104, or section 107, all 

miners working during the shift when such order was issued who are 

idled by such order shall be entitled, regardless of the result of 

any review of such order, to full compensation by the operator at 

their regular rates of pay for the period they are idled, but for 

not more than the balance of such shift. [2] If such order is not 

terminated prior to the next working shift, all miners on that 

shift who are idled by such order shall be entitled to full compensation by the operator at their regular rates of pay for the 

period they are idled, but for not more than four hours of such 

shift. [3] If a coal or other mine or area of such mine is closed 

(Footnote continued) 

140() 
Thereafter on February 19, 1982 the Union filed a motion for partial 

summary decision. In discussing its claim for a week's compensation, the 

Union acknowledged that the judge may feel "unable to grant this part of 

the UMWA' s motion on the basis of the current record." Motion at 11. If 

this occurred, the Union requested the judge to reserve final decision until 

MSHA completes its investigation. 

sumably be terminated either with 

a violation of a mandatory health 

answered by filing a cross-motion 

Id. At that time the order would preor-without modifying the order to allege 

or safety standard. §_/ Westmoreland 

for summary decision. 

The judge issued a summary decision on April 28, 1982. He granted the 

Union's request for fpur hours of compensation for the day shift based on 

the section 103(j) order and the second sentence of section 111. The judge 

denied the Union's concurrent claims for limited compensation under the 

first two sentences of section 111 based on the section 107(a) order. 

Regarding the· Union's claim for one week's compensation under the third 

sentence of section 111, the judge concluded, "Inasmuch as imminent danger 

Order No. 668338, here involved, does not cite Westmoreland for failure to 

comply with any mandatory health or safety standard ••• the obvious conclusion is that the miners cannot claim compensation for 1 week of pay under 

section 111 of the Act." 4 FMSHRC at 785 (emphasis in original). The Union 

had also sought permission to introduce evidence at a hearing to show that 

the ignition was the result of Westmoreland's failure to comply with one or 

more mandatory health or safety standards. The judge refused to permit the 

Union to present such evidence. He believed it would result in the Union's 

usurping the Secretary's prosecutorial role. 4 FMSHRC at 785-86. 

Finally, the judge declined to reserve ruling on the Union's request 

for one week's compensation based on legal and practical reasons. First, 

the judge referred to the fact that he was reversed by the Commission in 

Council of Southern Mountains v. Martin County Coal Corp., 2 FMSHRC 3216 

(November 1980), for issuing a decision that failed to dispose of all 

Fn. 7/ continued 

by an order issued under section 104 or section 107 of this title 

for a failure of the operator to comply with any mandatory health 

or safety standards, all miners who are idled due to such order 

shall be fully compensated after all interested parties are given 

an opportunity for a public hearing, which shall be expedited in 

such cases, and after such order is final, by the operator for lost 

time at their regular rates of pay for such time as the miners are 

idled by such closing, or for one week, whichever is the lesser •••• 

30 u. s. c. § 821. 

8/ As noted earlier, the 2-South section of the mine was sealed after the 

explosion. MSHA will not complete its investigation until the section is 

reopened. Westmoreland expected to unseal the area in approximately July, 

1983. 4 FMSHRC at 785. The Union believes that once MSHA completes its 

investigation the Union will be able to establish that the 107(a) order 

was issued for Westmoreland's failure to comply with a mandatory health 

or safety standard. 

1409 
pending issues. He also relied on section 113(d)(2)(C), which requires that 

when a decision is ready for issuanc~, the judge must forward the record to 

the Commission. Then, if a petition for discretionary review is filed, the 

Commission has the complete record. The judge's last reason for denying 

the Union's request was that: 

[T]here is nothing to prevent UMWA from 

filing a complaint for a week of compensation under the third sentence of 

section 111 if and when MSHA does modify 

outstanding imminent danger Order No. 

668338 to allege one or more violations 

of the mandatory health or safety standards by Westmoreland. 

4 FMSHRC at 789. Accordingly, the judge denied the Union's request for 

deferral of his decision and dismissed the claim without prejudice. 

We hold that the judge erred in not retaining jurisdiction over the 

one week's compensation claim. First, Council of Southern Mountains does 

not require dismissal of the Union's claim; that case is distinguishable 

from the facts presented here. It involved a single claim of discrimination under section lOS(c) of the Mine Act. The judge issued a decision 

finding that the operator had discriminated against the Council and ordered 

the operator to reimburse the Council for expenses and attorneys' fees 

pursuant to section 10S(c)(3) of the Act. The judge's decision did not 

specify the amount of this award. We held that section 113(d)(l) of the 

Act and Commission Rule 6S(a), 29 C.F.R. § 2700.65(a), require that the 

judge's decision finally dispose of the proceedings. The judge could 

have obtained an accounting of the expenses and attorneys' fees tied to 

the discrimination claim and specified the amount in his decision. 

Because the judge failed to resolve the amount of fees and expenses in 

that case; his decision did not finally dispose of the one claim. 

In contrast, here the Union has made three separate claims for 

compensation. The judge finally disposed of all issues relating to the 

first two claims. At the time of his decision, however, MSHA had not 

completed its investigation of the cause of the mine explosion and, 

accordingly, the judge was not prepared to issue a decision on the 

merits of the claim for a week's compensation. Council of Southern 

Mountains does not mandate that a judge resolve all claims when he is 

not ready to do so. It is limited to cases where the judge could 

resolve all claims but fails to do so. 

Second, dismissal without prejudice could cause possible time 

limitation problems under Commission Rule 35, 29 C.F.R. § 2700.35. 

That rule provides: 

A complaint for compensation under section 111 of the 

Act, 30 U.S.C. § 821, shall be filed within 90 days 

after the commencement of the period the complainants 

are idled or would have been idled as a result of the 

order which gives rise to the claim. 

1110 
The Union timely filed its claim for a week's compensation within 90 days 

from the time the miners were idled by the orders. Had the Union later 

refiled its claim following the judge's dismissal, the operator could have 

opposed the complaint on the ground that it was not timely filed. We 

need not resolve in this case whether Rule 35 would have barred later 

refiling. We hold, however, that retention of the Union's claim was the 

preferable procedural course because it prevented, rather than created, 

possible time limitation problems. 2_/ 

We also emphasize that compliance with Rule 35 enhances judicial 

administration of compensation claims. Records needed to identify the 

complainants as well as their rates of pay are easily accessible within 

90 days of idlement. In the event a mine is closed for some length of 

time, as here, it is preferable to have a claim remain on a judge's 

docket than to have the parties establish or defend a claim several 

months or years later. In short, retention of the Union's compensation 

claim during the pendency of the MSHA investigation would have provided the miners with more certain protection of their interests under 

section 111 than dismissal without prejudice. Cf. Eastern Assoc. Coal 

Corp., 2 FMSHRC 2774, 2775-78 (October 1980)(stay of a notice of 

contest preferable to dismissal without prejudice.) 

In addition, there is procedural authority for separate adjudication 

of multiple claims. The Commission's rules do not expressly address the 

issuance of decisions in cases involving multiple claims. 10/ Therefore, 

we apply Commission Rule l(b), 29 C.F.R. § 2700.l(b), whici:i-states: 

Applicability of other rules. On any 

procedural question not regulated by the 

Act, these Procedural Rules, or the 

Administrative Procedure Act (particularly 

5 U.S.C. §§ 554 and 556), the Commission 

-0r any judge shall be guided so far as 

practicable by any pertinent provisions of 

the Federal Rules of Civil Procedure as 

appropriate. 

Under Rule l(b), it is thus appropriate to turn for guidance to the 

Federal Rules, which provide for separate adjudication of multiple 

claims. 

Rule 54(b), Fed. R. Civ. P. permits adjudication of fewer than all 

claims presented in an action. 11/ Had the judge applied Rule 54(b), he 

9/ Cases may arise in the future involving the issue of whether, under 

~ertain circumstances, the 90-day time limitation in Rule 35 may be 

waived. We intimate no view at this time as to the resolution of such 

questions. 

10/ Commission Rule 65, which deals with judge's decisions, is silent 

on the issuance of decisions involving multiple claims. 

_!l/ Rule 54(b) provides: 

Judgment Upon Multiple Claims or Involving Multiple Parties. When 

more than one claim for relief is presented in an action, whether 

(Footnote continued) 

1411 
could have resolved the Union's first two claims while retaining jurisdiction 

of the third claim. See Curtis-Wright Corp. v. General Electric Co., 446 U.S. 

1 (1980), and Sears Roebuck and Co. v. Mackay, 351 U.S. 427 (1956). The judge 

was prepared to issue a decision resolving the first two claims, and there 

was "no just reason to delay" that decision. Under theRule, his adjudication 

of the first two claims would have been a final decision, subject to the review 

procedures of the Mine Act. Utilizing Rule 54(b) would also have been in 

harmony with Commission Rule 64(a), 29 C.F.R. § 2700.64(a), which provides: 

At any time after commencement of a proceeding 

and before the scheduling of a hearing on the 

merits, a party to the proceeding may move the 

judge to render summary decision disposing of 

all or part of the proceeding. 

29 C.F.R. § 2700.64(a)(emphasis added). Indeed, the Union had filed a motion 

under Commission Rule 64(a) for "partial" summary decision seeking resolution of its first two claims. 

In general, the question of separate adjudication of claims belongs 

within the informed discretion of the judge. He is in the best position 

to evaluate the various procedural alternatives available "to secure the 

just, speedy and inexpensive determination of all proceedings." Commission 

Rule l(c), 29 C.F.R. § 2700.l(c). In this instance, however, the judge 

apparently did not consider applying Federal Rule 54(b), nor was such a 

course suggested by either party below. We find that in this particular 

factual situation of a pending MSHA investigation, the judge should have 

applied Federal Rule 54(b) "so far as practicable" and "appropriate," and 

separately adjudicated the claims. This action would have secured the 

"just, speedy and inexpensive determination" of all the proceedings. The 

claims for limited compensation, which were ripe for decision, could have 

been adjudicated. This would be in harmony with Congressional intent for 

expedited ·compensation proceedings. And, as we have indicated above, 

retention of the remaining claim would have avoided time limitation 

problems and better protected the miners' interests. 

There is also an important practical aspect to our decision to remand. 

The status of the case has changed. The Union repeatedly advised the judge 

that MSHA would be taking enforcement action against Westmoreland. On Ju.Ly 15, 

1982, MSHA issued thirteen section 104(d)(2) orders to Westmoreland. The 

Fn. 11/ continued 

as a claim, counterclaim, cross-claim, or third-party claim, or 

when multiple parties are involved, the court may direct the entry 

of a final judgment as to one or more but fewer than all of the 

claims or parties only upon an express determination that there is 

no just reason for delay and upon an express direction for the 

entry of judgment. In the absence of such determination and 

direction, any order or other form of decision, however designated, 

which adjudicates fewer than all the claims or the rights and 

liabilities of fewer than all the parties shall not terminate the 

action as to any of the claims or parties, and the order or other 

form of decision is subject to revision at any time before the 

entry of judgment adjudicating all the claims and the rights and 

liabilities of all the parties. 
orders are based on statements taken during MSHA's investigation into the 

ignition. Westmoreland filed notices of contest of all thirteen orders and 

MSHA has initiated civil penalty proceedings. ll:_/ These cases are currently 

pending before the same judge who adjudicated these compensation claims. The 

question of whether the order litigated here was issued "for a failure of the 

operator to comply with any mandatory" standard may be resolved in the context 

of the notices of contest and penalty proceedings currently pending before the 

judge. In the alternative, because Westmoreland apparently plans to unseal the 

2-South section during the summer of 1983, it may be feasible to proceed after 

MSHA completes its investigation. 

We express no view about whether these thirteen 104(d)(2) orders or any 

later modification of the 107(a) Order No. 668338, may provide the basis for a 

week's compensation under the third sentence of section 111. We also do not 

reach the legal arguments raised by Westmoreland concerning whether the imminent 

danger order as issued must contain an allegation of a violation for purposes of 

section 111 compensation. All of these questions on the merits of the Union's 

claim are appropriate for resolution in the first instance by the judge. 

We commend the judge's conscientious efforts to resolve this complicated 

litigation but, for the reasons discussed above, vacate his order dismissing 

without prejudice the Union's claim for a week's compensation. The case is 

remanded to the judge with instructions to hold the record open as to the 

Union's claim for a week's compensation. The parties are free to submit any 

appropriate motions or showings. If the Union fails to make appropriate 

showings upon the completion of MSHA's investigation, Westmoreland may file 

an application for a show cause order to determine if the claim should be 

dismissed. The judge's resolutions of the Union's other claims are final, 

since no review was taken as to those aspects of his decision. 

12/ The notices of contest are contained in docket numbers WEVA 82-340-R 

through WEVA 82-352-R. The judge has consolidated these cases with the 

related civil penalty cases, docket numbers WEVA 83-73 and WEVA 83-143. 

1413 
Distribution 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D .C.. 20036 

Mary Lu Jordan 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Debra L. Feuer 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Richard C. Steffey 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22043 

111. <1 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 2, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 82-133 

A.C. No. 36-00807-03110 

Renton Mine 

This is a petition for the assessment of a civil penalty 

for a violation of 30 C.F.R. § 75.1702. 

The parties have filed motions for summary decision 

together with supporting affidavits and briefs. Since there 

is no genuine ~ssue of material fact and judgment can be 

rendered as a matter of law, summary decision is appropriate. 

29 C.F.R. § 2700. 64 (b). 

30 C.F.R. §§ 75.1702 and 75.1702-1 provide as follows: 

§ 75.1702 Smoking; prohibition. 

No person shall smoke, carry smoking 

materials, matches, or lighters underground, 

or smoke in or around oil houses, explosives 

magazines, or other surface areas where such 

practice may cause a fire or explosion. The 

operator shall institute a program, approved 

by the Secretary, to insure that any person 

entering the underground area of the mine 

does not carry smoking materials, matches, or 

lighters. 

§ 75.1702-1 Smoking programs. 

Programs required under § 75.1702 shall 

be submitted to the Coal Mine Safety District 

Manager for approval on or before May 30, 1970. 

1 A t ., 1

.Llb 
Citation No. 1143766, dated January 5, 1982, cites a 

violation of § 75.1702 as follows: 

The mines [sic] program for the searching 

of smoking articles was not being followed in 

that the week of Dec~mber 21 to 25 the "A" 

and "C" crews were not reportedly examined, 

and the week of December 27 to January 1 the 

"C" crew was not reportedly examined. All 

crews are to be systematically searched 

weekly. 

In his sworn affidavit the operator's superintendent 

admits that the facts described in the "Condition or Practice" 

are true. He further advises that the operator's program 

for searching miners for smoking materials involves one 

search per week for each crew. 

The parties agree that the issue presented for resolution 

is whether this.violation is significant and substantial. 

In National Gypsum Company, 3 FMSHRC 822 (1981), the 

Commission considered at length what would constitute a 

violation which "could significantly and substantially 

contribute to the cause and effect of a coal or other mine 

safety or health hazard." The Commission held that a 

violation was of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine 

safety or health hazard if, based upon the particular facts 

surrounding that violation, there existed a reasonable 

likelihood that the hazard contributed to would result in an 

injury or illness of a reasonably serious nature. 3 FMSHRC 

at 825. In addition, the Commission expressed its understanding that the word "hazard" denoted a measure of danger 

to safety or health, and that a violation significantly and 

substantially contributed to the cause and effect of a 

hazard if the violation could be a major cause of danger to 

safety or health. 3 FMSHRC at 827. 

The operator's position that the violation is not 

significant and substantial relies upon the facts that 

during the two week period involved work was not performed 

every day and that on the shifts in question all of the 

miners did not work. The superintendent's affidavit states 

in part: 

141·1 
4. For the period December 21 through 

December 25, the Renton Mine worked a total 

of three days, during which period the "A" 

and "C" crews were not searched for smoking 

materials. During that period, of the 

normally scheduled workforce on the "A" crew 

approximately twenty-five percent of the 

miners did not work. During that period, of 

the normally scheduled workforce on the "C" 

crew approximately one-third of the miners 

did not work; 

5. For the period December 27 through 

January 1, the Renton Mine worked a total of 

five days, during which period the "C" crew 

was not searched for smoking materials. 

During that period, of the normally scheduled 

workforce on the "C" crew approximately 

twenty-eight percent of the miners did not 

work [.] 

The superintendent's affidavit further reports that 

searches for smoking materials involve a pat-down of the 

miner and an inquiry to him whether or not he has such 

materials in his lunch pail. 

After careful consideration I do not find the circumstances as described by the superintendent and as interpreted 

by operator's counsel persuasive on the issue of "significant 

and substantial." Moreover the factors relied upon by the 

operator are greatly outweighed by the fact this mine is 

extremely gassy. The affidavit of the MSHA sub-district 

office manager recites in part that: 

4. Renton Mine is a particularly gassy 

mine that, due to its liberation of high 

quantities of methane, is subject to statutorilymandated spot inspections under § 103(i) of 

the Act. Specifically, between the inception 

of the 1977 Mine Safety and Health Act and 

July 1, 1982, Renton Mine liberated between 

500,000 and 999,999 cubic feet of methane 

every 24 hours. As such, it was subject to 

spot inspections under § 103(i) every ten 

working days at irregular intervals. Beginning July 1, 1982, Renton Mine was determined to be liberating quantities of methane 
in excess of 1 million cubic feet per 24 

hours and is accordingly now subject to spot 

inspections every five working days under 

§ 10 3 ( i) . 

It is clear from the affidavit that in this mine a 

methane liberation can occur at any time and at any place. 

Under such circumstances, the fact that the work crews which 

were not examined were two-thirds or three-fourths of their 

total personnel strength does not render the violation 

insignificant and insubstantial. Nor does the fact that 

full weeks were not worked or that only a limited period of 

time was involved make any difference. In a mine like this 

every moment is fraught with peril from a methane explosion. 

As some of the exhibits submitted by the Solicitor demonstrate, 

smoking and smoking materials underground may cause or 

contribute to a mine explosion. Where so much methane can 

be liberated at any time the great danger created or con~ 

tributed to by this violation, is ever-present. Under such 

circumstances there exists the reasonable likelihood that 

the hazard contributed to will result in an injury of a 

reasonably serious nature. 

The operator argues that the violation is not significant 

and substantial because the search is a mere pat-down and an 

inquiry to the miner regarding his lunch pail whereas a 

daily strip search would be necessary to eliminate the 

possibility of miners taking smoking materials into the 

mine. The operator's approach appears based upon the faulty 

premise that because the operator cannot do everything, it 

really is not important for it to do anything. Such a 

rationale would all but nullify the mandatory standard and 

its underlying purpose. I am persuaded by the Solicitor 

that searches such as should have been performed here have a 

deterrent effect. I agree with her assertion that without 

the required inspections, miners may either inadvertently or 

purposefully carry smoking materials underground. The 

operator inconsistently points to the deterrent effect its 

own work rules and Pennsylvania law would have upon a miner 

who is found taking smoking materials underground but 

apparently would accord no such effect to Federal law. 

The operator argues that the circumstances peculiar to 

this mine should be determinative, not what has happened at 

other mines. I agree. That is why I decide this case 

on the basis of the factor peculiar to this mine which 

141U 
eclipses all other considerationsi i.e., its extremely gassy 

nature. The fact that this mine liberates so much methane 

renders continuously crucial the deterrent effect of the 

search for smoking materials. 

In light of the foregoing, I conclude that the violation 

was significant and substantial. 

Finally, the operator alleges that the proposed penalty 

of $210 is excessive. Whether a cited violation is significant 

and substantial is irrelevant to the determination of the 

appropriate penalty amount to be assessed. Penalty proceedings 

before the Commission are de nova and the amount of the 

penalty to be assessed is based upon the six statutory 

criteria specified in section llO(i) of the Act and the 

information relevant thereto developed in the course of the 

adjudicative proceeding. As already pointed out, the 

violation was serious. I find the operator was guilty of 

ordinary negligence. The mine is large, assessment of the 

penalty will not affect the operator's ability to continue 

in business and there was good faith abatement. Based on 

the record there is no history of prior violations of this 

standard. After consideration of all the statutory factors, 

I conclude the proposed penalty is appropriate. 

It is ORDERED that the operator pay $210 within 30 days 

from the date of this decision. 

-

c 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Janine c. Gismondi, Esq., Office of the Solicitor, U. S. 

Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Robert M. Vukas; Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

/ln 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 8, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

NUGENT SAND COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-57-M 

A.C. No. 20-00801-05501 

Nugent Sand Mine 

PARTIAL APPROVAL AND PARTIAL DISAPPROVAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlements 

for the six 1/ violations involved in this matter. The proposed settlements are for the originally assessed amounts. 

Three violations were assessed at $20 apiece and the others 

were assessed at $91, $126 and $136, respectively. The 

operator has already tendered payment of $413. 

One citation was issued for failure to properly maintain 

a guard at the head pulley. The violation was serious and 

negligence was low. This violation was originally assessed 

for $91. A second citation was issued because a grinding 

machine did not have an adjustable tool rest. The violation 

was serious and negligence was moderate. This violation was 

originally assessed for $126. A third citation was issued 

because miners were working on the drive gear of a dryer 

machine without the power control box being locked out. 

The violation was serious and negligence was moderate. This 

violation was originally assessed for $136. The Solicitor 

proposes to settle these citations for the originally 

assessed amounts. On the basis of the foregoing, I conclude 

these settlement amounts are appropriate. 

l/ The Solicitor's motion mistakenly states that there are 

eight citations. The record, including the assessment 

sheet shows that only six citations are involved. 

1421 
There is insufficient information, however, regarding 

the three $20 violations. In my opinion, $20 denotes a lack 

of gravity. However, the $20 violations are for lack of a 

fire extinguisher on a front-end loader, lack of a guard on 

a take-up pulley and lack of a guard on a head pulley. I do 

not know whether these conditions are serious or not but I 

could not find a lack of gravity on the face of the subject 

violations. 

It appears from the assessment sheet that the three 

violations which are assessed at $20 each were done so as 

the result of the so-called "single penalty assessment" 

set forth in section 100.4 of the regulations of the Mine 

Safety and Health Administration, 30 C.F.R. § 100.4. This 

regulation provides for the assessment of a $20 single 

penalty for a violation MSHA believes is not reasonably 

likely to result in a reasonably serious injury or illness. 

This regulation is not binding upon the Commission and is 

not a basis upon which I could approve a settlement. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

The fact that MSHA may have determined that these 

violations are not "significant and substantial" as that 

term presently is defined by the Commission, is not determinative or even relevant in this proceeding. I agree with 

Administrative Law Judge Broderick that whether a cited 

violation is checked as significant and substantial is 

per se irrelevant to the determination of the appropriate 

penalty to be assessed. United States Steel Mining Co., 

Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 
Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfull and discharge. This can only be 

done on the basis of an adequate record. 

I will not order that this case be dismissed with 

respect to the $91, $126 and $136 proposed settlements 

pending final disposition of the three $20 proposed settlements. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the three proposed $20 penalties are 

justified and if not, what settlement amounts the parties 

believe are warranted. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department 

of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Mr. Glenn Adams, General Manager, Nugent Sand Company, Inc., 

2875 Lincoln, P. O. Box 506, Muskegon, MI 49443 (Certified 

Mail) 

/ln 1423 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RICHARD KLIPPSTEIN and 

W. 0. PICKETT, JR., 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO .80204 AUG 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 81-383 

A.C. No. 05-03648-03001 

Big 3 Mine 

DECISION 

o um v l\.IVV 

Appearances: James H. Barkley, Esq., Office of the Solicitor 

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

for Petitioner; 

Mr. Richard Klippstein, Rifle, Colorado 

Pro Se. 

Before: Judge Carlson 

This civil penalty proceeding arises out of respondents' alleged 

operation of a coal mine near Rifle, Colorado. The matter is before me under 

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

seq. (the "Act"). The five alleged violations for which the Secretary nowseeks civil penalties were cited in a federal mine inspector's imminent 

danger withdrawal order under section 107(a) of the Act. Although given 

notice, respondents failed to appear at the hearing scheduled for 8:30 a.m. 

on October 8, 1982. I personally contacted respondent Klippstein to remind 

him of the time and date. He then appeared, and the hearing began two and 

one half hours late. 

Petitioner filed a post-trial brief, to which respondent Klippstein 

replied. 

Issues 

1) Was W.O. Pickett, Jr. properly named as co-respondent in this 

proceeding? 
2) Was a MSHA inspector's entry and inspection of the Big 3 Mine 

proper? 

3) Were exploration activities at the Big 3 Mine sufficient to mandate 

compliance with the Act and its safety regulations, and if so, did the 

alleged violations occur and were .the assessed penalties appropriate? 

General Background 

SUMMARY AND DISCUSSION OF THE 

EVIDENCE 

The undisputed evidence shows that the Big 3 coal mine was first worked 

in the 1920's, and was operated a second time during the 1940's. The mine 

consisted of a single drift some 1300 feet in length, contained several coal 

seams, and ended at a 40 foot seam of unmined coal. 

The evidence shows that in 1980 Klippstein purchased the lana upon which 

the mine was located. His intent, he testified, was to build and sell houses 

on the new property, which was adjacent to the rural acreage upon which his 

own home was located. The building project appeared promising at the time 

because of the proximity of the mine to a large public reservoir. Statements 

by Klippstein in his written pleadings and at the hearing showed that he 

re-opened the mine drift for a dual purpose: to develop a water right to 

spring water in the mine and to assess the coal deposits. A confirmed water 

source was necessary to provide water to the proposed housing project. In 

re-opening the drift, respondent, with the occasional help of his two sons, 

did drilling and blasting, and used a front-end loader to remove debris. 

In January 1981, MSHA inspector Villegos and a supervisor learned of 

apparent mining-related activities on Klippstein's property, and entered the 

land to further investigate. Once there, they observed an independent 

contractor and two crew members using a front-end loader and dump trucks to 

remove piles of mine tailings. The inspector was told that two men had been 

seen on another day going up to the mine to remove coal. 

When Villegas approached the mine portal, he observed a front-end loader 

near the mine. The machine was covered with coal dust and its tracks led 

into the mine. Since no mine representative could be found, Villegos entered 

the mine without one. Inside, he testified, he discovered signs of recent 

activity; electrical wiring for lighting, blasting caps, and signs of 

drilling were noted. In addition, two piles of coal (each about 250 to 300 

pounds) lay beneath a coal seam. 

After testing air movement in the drift, Villegos issued a withdrawal 

order based upon violation of five mandatory standards. The order specified 

1425 
that it was issued pursuant to sections 107(a) and 104(a) of the Act. l; 

The order was issued to both Richard Kiippstein and W.O. Pickett, Jr.,-

believed by the inspector to be co-owners and operators of the mine. 

Klippstein succeeded in acquiring a conditional water right to the 

mine's spring water by decree of a Colorado Water Judge on June 18, 1982 

(exhibit R-1). He had closed the mine around October, 1981. 

Status of Co-respondent Pickett 

Undisputed testimony at the hearing indicated that respondent Pickett 

had no financial interest in the mine, nor any surface or mineral rights to 

the property. I therefore conclude that Pickett should not have been named 

as co-respondent, and should suffer no liability for the charges involved in 

this proceeding. All further discussion in this case will concern respondent 

Klippstein. The proceeding will be dismissed as to Pickett. 

Unauthorized Entry and Inspection of Mine 

Respondent denies operating a mine, and maintains that while an access 

road was open on the day of the inspection, his property was well posted 

against trespassing. He therefore contends that Inspector Villegas' unauthorized entry onto his property, and inspection of the Big 3 mine, were 

improper. 

1/ Section 107(a) provides: 

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

is subject to this Act, an authorized representative of the Secretary finds 

that an imminent danger exists, such representative shall determine the 

extent of the area of such mine throughout which the danger exists, and issue 

an order requiring the operator of such mine to cause all persons, except 

those referred to in section 104(c), to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the 

Secretary determines that such irrnninent danger and the conditions or 

practices which caused such imminent danger no longer exist. The issuance of 

an order under this subsection shall not preclude the issuance of a citation 

under section 104 or the proposing of a penalty under section 110. 

Section 104(a) provides in pertinent part: 

If, upon inspection or investigation, the Secretary or his authorized 

representative believes that an operator of a coal or other mine subject to 

this Act has violated this Act, or any mandatory health or safety standard, 

rule, order, or regulation promulgated pursuant to this Act, he shall, with 

reasonable promptness, issue a citation to the operator. Each citation shall 

be in writing and shall describe with particularity the nature of the 

violation, including a reference to the provision of the Act, standard, rule, 

regulation, or order alleged to have been violated. In addition, the 

citation shall fix a reasonable time for the abatement of the violation. 
In contrast, petitioner contends that the entry and inspection were 

proper. There was no expectation of privacy, no guard at the mine, nor any 

mine representative present (Tr. 88). 

I accept petitioner's arguments and find Villegos' entry onto 

Klippstein's property and the mine inspection to be reasonable under the 

circumstances. Section 103(a) of the Act provides MSHA inspectors with the 

right of entry to, upon, or through any mine. No advance notice of an 

inspection need be given. Furthermore, the Supreme Court has ruled that 

warrantless inspections authorized under section 103(a) do not violate the 

Fourth Amendment; the certainty and regularity of the Act's inspection 

program provide a constitutionally adequate substitute for a warrant. 

Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534 (1981). 

The propriety of inspections turns, then, on a MSHA inspector's reasonable belief in the existence of a mine and associated mining activities. 

Inspector Villegas had such a belief when he entered respondent's property 

and inspected the mine. Removal of mine tailings provided a prima facie 

indication of mining operations. Furthermore, Villegas was informed (whether 

correctly or not) that coal was being removed from the mine. The condition 

of the mine itself gave additional indication of present mining activity: the 

portal was open, signs of drilling and blasting were evident, and a frontend loader was parked near-by. 

Therefore, under the Act's provisions and based upon the evidence, I 

find the inspection to be proper. I next turn to the issue of MSHA's 

jurisdiction in the issuance of a withdrawal order, based upon the violation 

of mandatory standards, and the proposed penalties. 

MSHA Jurisdiction 

Respondent claims that the Big 3 Mine was not being operated for 

purposes of mineral extraction at the time of the inspection. He therefore 

contends that issuance of a withdrawal order and citations was not within 

MSHA's jurisdiction. 

On the other hand, petitioner argues that Klippstein's operation is a 

mine as defined by the Act, and comes within the Act's coverage by virtue of 

its affect on commerce. I agree with petitioner, and find that respondent's 

exploratory activities in the mine were sufficient to invoke MSHA's 

jurisdiction and mandate compliance with the Act's safety regulations. 

Section 3(h)(l) of the Act defines a mine as "underground passageways 

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

[minerals] from their natural deposits." Mines subject to the Act are those 

whose products enter commerce, or "the operations or products of which affect 

142."i 
commerce •••• " 30 U.h.C. § 803. The legislative history of the Act 2;, 

and court decisions encourage a liberal reading of such provisions in order 

to achieve the Act's purpose of protecting miners' safety. Westmoreland 

Coal Co. v. Federal Mine Safety and Health Review Commission, 606 F. 2d 417 

(4th Cir. 1979). 

Accordingly, the Connni.ssion has not limited mining activities covered by 

the Act to operations involving actual mineral extraction, Instead, attempts 

to drive a shaft and establish a portal, merely to evaluate a mineral deposit 

and mining feasibility, have been ruled sufficient activity to involve 

hazards intended to be regulated by the Act. Cyprus Industrial Minerals 

Corp., 3 FMSHRC 1 (January 1981), aff'd, 664 F. 2d 1116 (6th Cir. 1981). 

I find respondent's activities to involve similar motives of mineral 

exploration with associated hazards. As admitted in an answer to the 

Secretary's proposal for penalties, Klippstein re-opened the Big 3 Mine "for 

two reasons, to secure a water right to the water in the mine and to see if 

there was any coal in it." Had valuable amounts of coal been discovered, 

Klippstein testified that he would have sought someone to mine the deposits 

(Tr. 88). By re-opening the mine to determine the feasibility of mining its 

coal ~eposits, Klippstein brought himself within the coverage of the 

Act. _/ 

Respondent cannot avoid MSHA's jurisdiction by claiming to individually 

perform all work in the mine. The provisions of the Act are applicable even 

where an owner-operator works a mine. Marshall v. Conway, 491 F. Supp. 1123 

(D.C. Pa 1980). 

Finally, respondent can not avoid the jurisdiction of the Act by 

claiming that his activities failed to affect commerce. Unsafe working 

conditions of one operation, even if in initial and preparatory stages, 

influence all other operations similarly situated, and consequently affect 

interstate connnerce. Godwin v. Occupational Safety and Health Review Comm., 

540 F. 2d 1013 (9th Cir. 1976). 

2/ S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate 

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

Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 

(1978). 

3/ The removal of tailings by an independent contractor was relevant to the 

issue of the propriety of the inspection. Klippstein testified, in essence, 

that the contractor approached him and offered a price for the tailings as 

salvage. There was no evidence linking the tailings salvage to the reestablishment of the drift, Thus, while the tailings activity was among 

those facts which gave the inspector good cause to suspect that mining was in 

progress, I must agree with Klippstein that it quite likely may not have 

constituted mining. The finding on jurisdiction is based on Klippstein's own 

activities and those of his two sons within the drift. 
In the present case, Klippstein's exploratory act1v1t1es involved working conditions governed by the Act, and therefore affected interstate 

commerce as it relates to the mining industry. The mere fact that the exploratory activity also included development of a water right does not allow 

respondent to deny an affect on commerce or escape the Act's regulatory 

powers as they affect mineral development. 

Citations and Proposed Penalties 

The citations 4 / issued for violations of regulations promulgated 

under the Act, and proposed penalties are as follows: 

Citation No. 

1127905 A 

1127905 B 

1127905 c 

1127905 D 

1127905 E 

Violation 

Charged 

No mechanical 

ventilation 

Impermissible 

power connection 

units 

No notice given 

of mine reopening 

No books or recording of mine 

tests 

No notice given 

of legal identity 

of operator 

Applicable 

30 C.F.R. § 

75.300 

75.507 

75.1721 

75.1800 

41.ll(a) 

Proposed 

Penalty 

$ 240 

$ 56 

$ 24 

$ 24 

$ 24 

Total $ 368 

The first citation charges respondent with failure to provide mechanical 

ventilation in the mine. The standard allegedly violated, 30 C.F.R. 

§ 75.300, provides as follows: 

All coal mines shall be ventilated by mechanical ventilation 

equipment installed and operated in a manner approved by an 

authorized representative of the Secretary and such equipment 

shall be examined daily and a record shall be kept of such 

examination. 

4/ The withdrawal order specified that it was issued under both 107(a) and 

l04(a) (as is the Secretary's connnon practice where a 107(a) order is based 

upon alleged violations of mandatory standards). Thus, MSHA denominated the 

five violations a "citation" for penalty purposes, and divided it into a 

sub-part for each standard cited. In the interest of consistency the term 

"citation" shall be used through the remainder of this decision. 

1428 
Villegos testified that at the time of his inspection, no ventilation 

machinery was in place at the mine. M~chanical ventilation would have been 

indicated by the presence of fans on the ground's surface. 

A second citation was issued for the us.e of impermissible electrical 

wiring in the mine. Respondent allegedly failed to supply a proper ground 

wire when providing electric lighting inside the tunnel. The standard allegedly violated, 30 C.F.R. § 75.507, provides: 

Except where permissible power connection units are used, 

all power connection points outby the last open crosscut 

shall be in intake air. 

Due to the presence of some detectable methane as well as some coal dust 

in the mine, and respondent's failure to provide proper ventilation and 

electrical wiring, Villegas felt that an imminent danger of explosion 

existed. He therefore issued a withdrawal order. 

Villegos charged three additional violations because of respondent's 

alleged failure to comply with certain administrative requirements. Under 

the Act's regulations, an operator must notify the Coal Mine gealth and 

Safety District Manager before opening an inactive coal mine, and must submit 

preliminary mining plans for approval before commencing with mine development. 30 C.F.R. § 75.1721. The legal identity of the operator must also be 

filed with MSHA. 30 C.F.R. § 41.ll(a). Furthermore, certain tests and 

examinations must be conducted in underground coal mines, and results are to 

be recorded in books approved by MSHA. 30 C.F.R. § 75.1800. 

Petitioner shows that respondent failed to satisfy these regulatory 

requirements. No notice of mine reopening was given, the legal identity of 

the mine operator was not filed, and no records of mandatory mine tests were 

kept (Tr. 25-27). 

Respondent's defense in this case rested solely on the issue of whether 

the operation was a mine regulated under the Act. During the hearing, 

Klippstein did not directly dispute the evidence of the violations, or the 

appropriateness of the penalties. 

In his reply to petitioner's post-trial brief, however, respondent 

suggests that he was misled into thinking that the purpose of the hearing was 

to decide only if MSHA did have jurisdiction over the matter. He claims to 

have believed that specific charges would be dealt with after the jurisdictional decision was made. 

I find such beliefs to be unfounded. Klippstein was afforded the opportunity to challenge the citations and penalty assessments at two different 

points during the hearing - after I informed him that it might be wise to do 

so in the event that I ruled against him on the jurisdictional issue (Tr. 56, 

70). Respondent's later dissatisfaction with his failure to dispute such 

charges therefore has no bearing on the outcome of this case. 
Since the -uncontroverted evidence shows that respondent conducted his 

exploratory operations in a manner contrary to the Act's regulations, I find 

that the violations were properly charged. 

Penalties 

We now turn to the matter of appropriate penalties. Section llO(i) of 

the Act sets forth six criteria to be considered in determining a reasonable 

penalty. It provides: 

In assessing civil monetary penalties, the Connnission shall 

consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of 

the operator charged, whether the operator was negligent, the 

effect on the operator's ability to continue in business, the 

gravity of the violation, and the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after 

notification of a violation. 

Respondent's mine had no history of previous violations, and would be 

considered a small operation. Klippstein testified at the hearing that he 

was unemployed, and owned only the property involved in this ~ase. These 

facts suggest imposition of even a modest penalty would have a significant 

deterrent effect. 

Respondent's failure to comply with the Act's regulations was negligent. 

Under the facts of this case, respondent failed to exercise reasonable care 

in complying with regulatory requirements in the operation of his mine. 

Nevertheless, the respondent's inexperience with federal mine safety 

regu~ation, and seemingly honest belief that his operations were lawful and 

did not fall within MSHA jurisdiction are mitigating factors in the finding 

of negligence, 

In determining the gravity of the violations, consideration must include 

the probability of injury, seriousness of potential injury, and the number of 

workers exposed to such hazard. Lack of proper mechanical ventilation and 

the possible presence of methane could have resulted in a serious or fatal 

injury. However, work in the mine was limited in extent and duration, and 

typically involved only one worker. Consequently, I consider the gravity to 

be less than originally determined by the Secretary. 

There is no indication that respondent abated the hazardous conditions 

upon notification of the violations and order of withdrawal. Instead, at a 

chance meeting several months after the citations and order were issued, 

respondent informed the inspector that he and his sons were still working the 

mine (Tr. 21). Such factors weigh against respondent. 

On balance, however, I conclude that the $368 total of proposed 

penalties is excessive. Based upon the criteria for assessing civil 

penalties as set forth in the Act, and the evidence of record, I conclude 

that the civil penalties for violations should be reduced and assessed as 

follows: 

1431 
Citation No. 

1127905 A 

1127905 B 

1127905 c 

1127905 D 

1127905 E 

Reduced Penalty 

CONCLUSIONS OF LAW 

$ 70.00 

28.00 

12.00 

12.00 

12.00 

$134.00 

Based upon the findings made in the narrative portion of this decision 

the following conclusions of law are entered: 

1. W. O. Pickett, Jr. should not have been named co-respondent and 

shall sμffer no liability for the charges involved in this proceeding. 

2. The mine and exploratory activities of respondent Klippstein were 

under the jurisdiction of the Act. 

3. Respondent violated the standard published at 30 C.F.R. § 75.300 as 

charged in citation 1127905 A. 

4. Respondent violated the standard published at 30 C.F.R. § 75.507 as 

charged in citation 1127905 B. 

5. Respondent violated the standard published at 30 C.F.R. § 75.1721 as 

charged in citation 1127905 c. 

6. Respondent violated the standard published at 30 C.F.R. § 75.1800 as 

charged in citation 1127905 D. 

7. Respondent violated the standard published at 30 C.F.R. § 41.ll(a) 

as charged in citation 1127905 E. 

8. The appropriate civil penalties total $134.00 

ORDER 

Accordingly, the Secretary's pet1t1on proposing penalties, as modified 

by this decision, is affirmed, and respondent Klippstein is ORDERED to pay 

the above assessed penalties, totaling $134.00, within 30 days of issuance of 

this order. 

.J ~~ John A. Carlson 

/:? Administrative Law Judge 
Distribution:· 

James H. Barkley, Esq. [Certified Mail] 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Mr. Richard Klippstein [Certified Mail] 

P.O. Box 1391 

Rifle, Colorado 81650 

/blc 

1433 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW· JUDGES 

333 W. COLFAX AVENUE, SUITE 400 AUG J ~~ 19fS 

DENVER, COLORADO 80204 

RICHARD D. CLEMENS, DISCRIMINATION PROCEEDING 

Complainant Docket No. WEST 81-298-DM 

v. MSHA Case No. MD 80-176 

ANACONDA MINERALS COMPANY, 

Division of ATLANTIC 

RICHFIELD COMPANY, 

Carr Fork Mine 

Appearances: 

Before: 

Respondent 

DECISION 

James E. Hawkes, Esq., King and Hawkes 

Salt Lake City, Utah, 

for Complainant; 

Leslie M. Lawson, Esq., Anaconda Minerals Company, 

Denver, Colorado, 

for Respondent. 

Judge Vail 

Procedural History 

This case is before me upon the complaint of Richarq Clemens under 

section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (the "Act"). Clemens alleges that Anaconda Minerals 

Company (Anaconda)""reduced his pay following a job transfer made within the 

Carr Fork copper mine for health reasons, and that such pay reduction 

constitutes a discriminatory action prohibited by section lOS(c)(l) of the 

Act. 

Anaconda filed a moti.on for summary decision, claiming no genuine issue 

of fact and that Clemens' allegations did not constitute a violation of the 

Act or any federal regulations promulgated thereunder. Clemens responded, 

and the matter was set for hearing on October 26, 1982 at Salt Lake City, 

Utah. At the hearing, the parties submitted stipulated facts, and elected to 

argue all further legal issues in post trial briefs. 

Stipulated Facts 

In summary, the stipulated facts establish that Clemens was employed by 

Anaconda on April 17, 1978 as a miner first-class. Clemens had been a miner 

for over thirty years, including fifteen years working underground. Prior to 

June 1980, he went to his own private physician due to illness and was told 

that he suffered from "Restrictive Pulmonary Disease with hypoxemia." 

Clemens provided Anaconda with the medical diagnosis, and consequently was 

transferred from underground duties to the job of toplander. The toplander 

job normally carries a lower pay-grade. Clemens claims that he accepted the 
job transfer believing that his pay would not be lowered, while Anaconda 

claims that Clemens understood that his pay-grade would be changed upon 

transfer. Clemens' salary was reduced on September 2, 1980 (approximately 

three months after his transfer). 

Issues 

1) Did Clemens' reduction in pay following his job trans£er constitute 

a discriminatory act in violation of section lOS(c)(l) of the Act? 

2) If so, what is the appropriate relief to be awarded Clemens and what 

are the proper civil penalties to be assessed against Anaconda for such 

discrimination? 

Discussion 

Section lOS(c)(l) provides in pertinent part as follows: 

No person shall .•• in any manner discriminate against ••• or 

cause discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner ••• in any coal 

or other mine subject to this Act because such miner ••• is the 

subject of medical evaluations and potential transfer under a 

standard published pursuant to§ 101 ..• or because of the exercise by such miner •.. on behalf of himself or others of any 

statutory right afforded by this Act. 

To establish a prima facie case showing violation of section lOS(c)(l), 

a complainant must introduce evidence of a connection between an adverse 

action and exercise by a miner of a protected activity. Two protected 

activities recognized by the Commission are 1) the filing or making of a 

complaint under or related to the Acti !_! and 2) the exercise of any 

statutory right afforded by the Act. / Clemens alleges that he 

exercised both forms of protected activity, and therefore claims that his pay 

reduction upon job transfer constitutes unlawful discrimination under section 

lOS(c)(l) of the Act. 

Protected activity of making a complaint. 

Clemens contends that he engaged in a protected activity when he 

complained to Anaconda's personnel manager of unsafe and hazardous mine 

conditions. His good faith belief in the existence of such conditions is 

said to be supported by his doctor's report, urging Clemens' transfer from 

underground work due to work related respiratory problems. Such factors 

1/ Sec. ex rel. Long v. Island Creek Coal Company, 2 FMSHRC 1529 (June 1980) 

(ALJ); aff'd., No. 80-1799 (4th Cir. September 14, 1981). 

2/ United Mine Workers of America on behalf of Beaver v. North American Coal 

Corp., 3 FMSHRC 1428 (June 198l)(ALJ). 

143~ 
are claimed to establish existence of a protected activity under the 

criteria of Sec. ex rel. Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 

(October 1980), rev'd on other grounds sub. nom., Consolidation Coal Company 

v. Marshall, 663 F. 2d 1211 (3rd Cir. 1981), and Sec. ex rel. Robinette v. 

United Castle Coal Company, 3 FMSHRC 803 (April 1981). 

Clemens accuses Anaconda of granting his transfer merely to prevent 

further complaints. Reduction of his pay upon transfer is therefore claimed 

to be an unlawful, discriminatory act. The fact that such pay reduction was 

delayed for three months is said to do nothing to alleviate the discriminatory impact of Anaconda's action. Anaconda, on the other hand, fails to 

acknowledge Clemens' exercise of such a protected activity and rejects his 

claim that the delay in reducing his pay upon transfer to a toplander job was 

an attempt to mask a discriminatory act. Instead, it claims that the delay 

was due only to an oversight. 

Upon review of the stipulated facts, I find Clemens fails to substantiate his claimed exercise of a protected activity under the- .criteria of 

Pasula and related cases. In addressing the protected activity of filing or 

making a complaint, the Commission recognized in Pasula that the scope of 

protected activities under the Act included a miner's right to refuse to work 

where the miner had a reasonable good faith belief of a sufficiently severe 

safety hazard. However, for a miner to claim the protection of section 105 

(c)(l), he must, at the time he refuses to work, expressly ground his refusal 

on an unsafe condition. Sec. ex rel. Duncan v. T. K. Jessup,. Inc., 3 FMSHRC 

1880 (July 198l)(ALJ); Kaestner v. Colorado Westmoreland Inc., 3 FMSHRC 1994 

(August 198l)(ALJ). 

Clemens fails to satisfy such conditions as there is no indication in 

the stipulated facts that he indeed refused to work underground due to his 

belief that mine conditions presented a safety hazard. Instead, the evidence 

shows Clemens requested a transfer based upon his physician's advice that it 

might be wise to do so due to his respiratory problems. Furthermore, Clemens 

failed to establish that he expressly based his request for transfer on a 

complaint of unsafe mine conditions. The stipulated facts show no evidence 

of any such complaint being made, nor existence of any health or safety 

violations in the mine. 

Therefore, I reject Clemens' claim of unlawful discrimination provoked 

by the protected activity of expressing a mine safety complaint. As such, I 

find it unnecessary to address the reason for Anaconda's delay in reducing 

Clemens' pay. 

Protected activity of exercising a statutory right. 

Clemens further contends that unlawful discrimination occurred following 

his exercise of a statutory right, where such statutory right constitutes a 

second form of protected activity under section 105(c)(l) of the Act. 

Clemens claims that mandatory standard 30 C.F.R. § 57.18-2 affords a basic 

right of transfer upon discovery of health or safety hazards in non-coal 

mines. Such a standard, he argues, triggers the language of section 
10l(a)(7) of the Act, which provides in pertinent part as follows: 

Where. appropriate, the mandatory standard shall provide that 

where a determination is made that a miner may suffer material 

impairment of health or functional capacity by reason of exposure to the hazard covered by such mandatory standard, that 

miner shall be removed from such exposure and reassigned. Any 

miner transferred as a result of such exposure shall continue to 

receive compensation for such work at no less than the regular 

rate of pay for miners in the classification such miner held 

inunediately prior to his transfer. 

Anaconda dismisses Clemens' arguments by pointing to the actual 

provisions of the Act and its health and safety regulations. Anaconda claims 

that Clemens' pay reduction would constitute discrimination under section 

lOS(c)(l) only if he had been the subject of medical evaluations and 

potential transfer or actually transferred under the authority of a standard 

published pursuant to section 10l(a)(7) of the Act. Anaconda contends that 

provisions of section 10l(a)(7), regarding maintenance of pay upon transfer, 

cannot be read as creating an independent statutory right, but instead are to 

take effect only upon promulgation of related health and safety regulations. 

However, such mandatory health and safety regulations have only been 

promulgated for coal mines, under 30 C.F.R. 90 ("Health Standards for Coal 

Miners with Evidence of Pneumoconiosis"). Since no similar regulations 

(allowing transfer for medical reasons with no reduction of pay) have been 

promulgated for non-coal mines, Anaconda argues that there is no legal 

requirement to pay Clemens a wage other than that normally paid for the job 

into which he was transferred. Therefore, Anaconda denies that discrimination under section lOS(c)(l) of the Act has occurred. 

Upon careful examination of the Act and its regulatory provisions, I 

concur with Anaconda's arguments and conclude that no statutory right to 

medical evaluation, and resulting transfer with maintenance of pay, exists 

for non-coal mines. Section 101 of the Act provides guidelines for the 

development and promulgation of mandatory health and safety standards. 

Within that section, the Secretary is given the discretionary power to issue 

standards providing for the transfer of a miner upon a medical determination 

that exposure to hazards "covered by such mandatory standards" may result in 

health impairment. Further, any miner transferred under mandatory standards 

and as a result of exposure to such hazards shall not suffer a reduction in 

pay. 30 U.S.C. § 8ll(a)(7). 

Under these provisions, the key to the right of transfer with maintenance of pay is the promulgation of regulations where deemed appropriate by 

the Secretary. The Secretary has exercised such discretionary rule-making 

power by affording coal miners having evidence of mine-related lung disease 

the option of transfer while retaining their regular rate of pay. 30 C.F.R. 

§§ 90.3, 90.102-103. However, no similar rule pertaining to non-coal mines 

has been promulgated. Clemens therefore fails in his attempt to establish 

discrimination based upon his alleged exercise of a second form of protected 

activity at the Carr Fork copper mine. 

143'1 
Clemens argues that existence of specific regulations (including medical 

examination procedures, optional transfer and pay-maintenance provisions) is 

not necessary to guarantee the maintenance o'f pay as provided in section 

10l(a)(7) of the Act. Instead, Clemens claims that the provisions of 

standard 30 C.F.R. § 57.18-2 afford a general right of transfer, thereby 

triggering pay-maintenance provisions of se~tion 10l(a)(7) of the Act. 

I find this argument to be based on a misinterpretation of the Act and 

30 C.F.R. § 57.18-2. The regulation provides in 57.18-2(a) that each working 

place shall be examined at least once each shift_ (by a person designated by 

the operator) for conditions which may adversely affect safety or health. 

Furthermore, 57.18-2(c) provides in pertinent part as follows: 

Conditions that may present an imminent danger which are 

noted by the person conducting the examination shall be 

brought to the immediate attention of the operator who 

shall withdraw all persons from the area affected •••• 

Such regulatory provision does not afford automatic rights of transfer 

upon a finding of conditions that may affect health or safety. Instead the 

operator is required to withdraw miners from an area presenting potential 

imminent danger. The Act defines imminent danger as a "condition or practice 

in a coal or other mine which could reasonably be expected to cause death or 

serious physical harm before such condition or practice can be abated." 30 

u.s.c. § 802(j). 

No evidence of such imminent danger was presented in this case. 

Therefore, Clemens incorrectly claims that the pay maintenance provisions of 

section 101(a)(7) of the Act are triggered through application of standard 

57.18-2. Nor should the provisions of 10l(a)(7) be read as creating an 

independent right to continued pay levels upon transfer, as the provision is 

applicable only where specific regulations regarding the right to transfer 

have been promulgated. Accordingly, I find that Anaconda had no duty to 

withdraw or transfer Clemens, and hence no duty to maintain Clemens' salary 

upon voluntarily granting his request for a transfer. 

Swnmary 

I find Clemens' claims of protected activities to be unsubstantiated. 

Therefore, I conclude that Clemens' pay reduction, following his transfer 

made for health reasons, does not constitute a prima facie case of discrimination in violation of section 105(c)(l) of the Act. Accordingly, a discussion of appropriate relief for the alleged discrimination is unnecessary. 

1 , ,. -- 'l ~i () 
ORDER 

Anaconda's motion, heretofore reserved, is therefore granted and the 

complaint is dismissed. 

Distribution: 

C~d?~. vi;f:f: Vail 

Administrative Law Judge 

James E. Hawkes, Esq., King and Hawkes, (Certified Mail) 

301 Gump & Ayers Building, 2120 South 1300 East, Salt Lake City, Utah 84106 

Leslie M. Lawson, Esq., Anaconda Minerals Company (Certified Mafl) 

555 Seventeenth Street, Denver, Colorado 80202 

/blc 

143~ 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX A VENUE, SUITE 400 

DENVER, COLORADO 80204 AUG 1. 0 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket NO. WEST 80-6-M 

A.C. No. 42-00784-05001 

Docket No. WEST 80-81-M 

A.C. No. 42-00550-05001 R 

Docket No. WEST 80-82-M 

A.C. No. 42-00784-05002 R 

v. 

CALVIN BLACK ENTERPRISES, 

Respondent 

Appearances: 

Before: 

Blue Lizard and Markey Mines 

DECISION 

James H. Barkley, Esq., Office of the Solicitor 

U. S. Department of Labor, Denver, Colorado 

for Petitioner; 

Calvin Black, Blanding, Utah, 

for Respondent. 

Judge Vail 

PROCEDURAL HISTORY 

In these cases, petitioner seeks to have citations affirmed and civil 

penalties assessed against respondent Calvin Black Enterprises. Respondent 

is charged with mine safety violations, and refusal to allow unrestricted 

MSHA mine inspections. Pursuant to agreement by the parties, the cases were 

consolidated for hearing and decision. Upon notice to the parties, a hearing 

on the merits was held on February 9, 1982 in Salt Lake City, Utah under the 

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

(the "Act"). Subsequent to the hearing, the parties filed letter memoranda. 

ISSUES 

1) Was respondent properly charged with safety violations in the Markey 

Mine, and if so, what civil penalties are appropriate? 

2) Were representatives of the Secretary unlawfully barred by 

respondent from conducting an inspection of respondent's Blue Lizard and 

Markey Mines, and if so, what civil penalties should be assessed? 

Docket No. WEST 80-6-M· 

Citation Nos. 336808 and 336809 were issued on May 17, 1979, when MSHA 

inspector Ronald Beason visited respondent's Markey uranium mine near 

1'1·10 
Blanding, Utah. During the inspection, Beason noted employees of an independent contractor (Sanders Exploration Co.) working underground in 

conditions allegedly violating mandatory safety standards promulgated under 

the Act. 

Citation No. 336808 charges respondent with violation of mandatory 

safety standard 30 C.F.R. § 57.15-30 which provides as follows: 

A 1-hour self-rescue device approved by the Mine 

Safety and Health Administration shall be made 

available by the operator to all personnel underground. 

Each operator shall maintain self-rescue devices in 

good condition. 

Beason testified that at the time of his inspection, he observed a geologist 

and two helpers (all employees of Sanders Exploration Co.) working underground in a return air area without self-rescue devices. The geologist had 

been issued a self-rescuer, but left it in a jeep approximately 750 feet 

away. His two helpers had not been issued self-rescuers, nor had they been 

instructed in the use and need for such devices (Tr. 36, 37, 56). Inspector 

Beason testified that self-rescuers filter contaminated air, and in the event 

of a fire, smoke and fumes could overcome employees not equipped with these 

devices (Tr. 20). 

Citation No. 336809 charges respondent with failure to provide adequate 

escape routes before allowing use of a gasoline-powered jeep underground in 

the mine. Petitioner contends that such a situation violates mandatory 

safety standard 30 C.F.R. § 57.4-52, which provides as follows: 

Gasoline shall not be stored underground, but may 

be used only to power internal combustion engines 

in non-gassy mines that have multiple horizontal 

or inclined roadways from the surface large enough 

to accommodate vehicular traffic. Roadways and 

other openings shall not be supported or lined with 

combustible material. All roadways and other openings 

shall be connected with another opening every 100 feet 

by a passage large enough to accommodate any vehicle 

in the mine. 

Beason testified that during his mine inspection he observed the geologist 

and his crew using a jeep approximately 3,000 to 4,000 feet underground, in 

the fresh air side of a drift. Mine supervisory personnel informed him that 

the jeep's engine was gasoline-powered. The mine did not have cross-cuts 

every 100 feet. Such cross-cuts, Beason contends, are necessary to allow 

workers to bypass an area in the event of fire or air contamination 

(including that caused by gasoline engine exhaust) (Tr. 40-42). 

While respondent does not specifically deny the alleged violations, the 

citations are contested on several other grounds. First, the geologist and 

his crew are said to be employees not of the mine, but of an independent 

1441 
contractor. In addition, respondent claims that on the day of the 

inspection,. the geologists and two helpers arrived at the mine and began 

working before mine personnel could supervise their activities. Accordingly, 

respondent suggests that it should not be held responsible for the workers' 

failure to comply with safety standards. Secondly, respondent's owner 

maintains that he knows of no fires having e~er occurred in uranitnn mines, 

and contends that the safety violations are insignificant (Tr. 105). 

Furthermore, he characterizes the citations in general as being "nit-picky," 

and suggests that the safety violations were issued by MSHA in an attempt to 

create a confrontational situation, and set an example in the community (Tr. 

106' 112). 

I find that respondent's arguments are without merit. It is well 

established that an owner-operator of a mine can be held responsible without 

fault for a violation of the Act committed by an independent contractor. In 

reviewing the Secretary's decision to proceed against an operator for a 

contractor's violation, the Commission must determine if such choice was made 

for reasons consistent with the purposes and policies of the Act. Old Ben 

Coal Co., 1 FMSHRC 1480 (October 1979), aff'd., No. 79-2367 (D.C. Cir. 

(January 6, 1981); Cyprus Industrial Minerals Company, 3 FMSHRC 1 (January 

1981), aff'd, 664 F. 2d 1116 (6th Cir. 1981); Phillips Uranium Corp., 4 

FMSHRC 549 (April 1982). Part of such a determination includes an evaluation 

of the degree of control retained by an operator, and whether the operator's 

miners are exposed to the hazard. 

In this case, the independent contractor was hired by the respondent to 

conduct geological surveys in an operating mine. The activities involved 

workers untrained in mine safety, and extended over the period of one year 

(Tr. 105). Safety violations occurring during the course of such activities 

endangered not only the employees of the independent contractor, but also 

employees of the mine. It was therefore the operator's duty to monitor and 

control the independent contractor's workers and their activities as they 

affected general mine safety considerations. Accordingly, I find that 

respondent is liable for the safety violations at issue. 

Furthermore, I reject respondent's contention that the citations should 

be dismissed because they involved "insignificant" safety violations, and 

represented improper motives on the part of MSHA. The fact that respondent 

knows of no accidents in uranium mines caused by the safety violations involved in this case does not excuse his non-compliance with mandatory safety 

regulations. Nor does the evidence show that the inspector had other than 

proper motives in issuing citations for violations of mandatory safety 

regulations in this case. I therefore conclude that respondent should be 

held responsible for violation of the Act's safety standards, and that 

citation Nos. 336808 and 336809 were properly issued. 

Docket Nos. WEST 80-81-M and 80-82-M. 

Citation Nos. 336695 and 336696 were issued for respondent's alleged 

refusal to allow entry by representatives of the Secretary into the Blue 

Lizard and Markey Mines for the purpose of conducting mine inspections. 

Respondent is charged with violating section 103(a) of the Act, which 

1 ,r. 1 > i l. '- ,.·.:.., 
requires that underground mines be inspected at least four times a year, and 

provides MSHA inspectors with the right of entry to, upon, or through any_ 

mine. Advance· notice of an inspection is not required. 

Ronald Beason (MSHA inspector) and Benjamin Johnson (special investigator for MSHA) testified that on July 2, 1979 they arrived at respondent's 

Blue Lizard Mine for the purpose of conducting a safety inspection. Johnson 

had been instructed to accompany Beason following a telephone call from 

Calvin Black (owner of the Blue Lizard and Markey Mines) to the MSHA area 

office made shortly after the Markey Mine inspection of May 17, 1979, which 

resulted in the issuance of two safety violation citations. During the call, 

Black allegedly stated that he did not intend to allow any further inspections of his mine properties (Tr. 76). 

Beason testified that upon arrival at the Blue Lizard Mine, two of 

respondent's representatives informed Beason and Johnson that they were 

trespassing, and denied them entry into the mine. The mine representatives 

claimed that they had neither the authority nor the permission of the owner, 

Calvin Black, to allow such entry. In addition, they produced a notice 

issued by Black, stating that no person was to be permitted on the property 

without specific written permission from the owner. Beason and Johnson were 

then asked by mine personnel to fill out a form. Although the inspectors 

orally provided the requested information, they refused to sign the 

form. 1; Following further heated discussion, during which the mine 

representatives were read applicable portions of Section 103(.a) of the Act 

and informed of MSHA's legal right to inspect, Beason and Johnson abandoned 

their attempt to gain entry to the mine. They had not been specifically 

informed that they would be prevented from conducting an inspection, but due 

to the hostile and emotional confrontation, believed that they would be 

physically restrained from doing so (Tr. 59, 83). Accordingly, citation and 

withdrawal order No. 336695 was issued. 

A second citation No. 336696, with associated withdrawal order, was 

issued on the same day at the Markey Mine. A similar confrontation and 

denial of entry allegedly prevented Beason and Johnson from conducting an 

inspection of that mine (Tr. 28-30, 79). 

Respondent, on the other hand, claims that Beason and Johnson were not 

prevented from conducting an investigation. Instead, under the express 

orders of respondent's owner, they were given notice that they were trespassing, as anyone else entering the mine property without permission would 

be (Tr. 108). Such notice, respondent contends, was necessary due to general 

liability concerns and because the owner "didn't want the MSHA inspectors to 

1/ At the hearing, however, respondent admitted that Beason's "signature" 

had been added to the form by the mine personnel (Tr. 63-65). 
go there without notice and without permission" (Tr. 106, 107). However, 

respondent's owner testified that mine personnel were given specific instructions not to use force in preventing "trespassers" from entering the 

mine properties (Tr. 108). Respondent further denies informing MSHA by 

telephone that inspections subsequent to the one at the Markey Mine would not 

be allowed. Rather, respondent maintains that the call was made merely to 

give notice to MSHA of the owner's intent to see an attorney and take 

appropriate action against people (both MSHA inspectors and others) entering 

his property without permission (Tr. 107). 

Despite respondent's claims that Beason and Johnson were not expressly 

prohibited from conducting mine inspections, I find that the mine personnel 

(acting under the owner's express instructions) effectively prevented access 

to the mines by demanding that notice and permission precede entry onto 

respondent's property. A mandatory inspection, as provided in section l03(a) 

of the Act, was therefore obs.tructed. 

Section 103(a) of the Act requires no advance notice beforaAn inspection. Furthermore, although the language of the Act makes no reference 

to obtaining search warrants or owner permission prior to a mine inspection, 

courts have recognized a Congressional intent to provide an absolute right of 

entry to conduct legitimate inspections of mines covered by the Act, without 

need for a search warrant. Such a mine inspection program has been justified 

as necessary to protect miners from unusually severe occupational health and 

safety hazards. Marshall v. Nolichuckey Sand Co., Inc., 606 F. 2d 693 (6th 

Cir. 1979). In addition, warrantless inspections have been held by the 

United States·supreme Court to satisfy the constitutional constraints of the 

Fourth Amendment, since the certainty and regularity of the Act's inspection 

program provide an adequate substitute to a warrant. Donovan v. Dewey, 452 

U.S. 594, 101 S.Ct. 2534 (1981). Failure of an operator to permit an 

inspection has been held by the Commission to be a violation of the Act, for 

which a penalty must be imposed. Waukesha Lime and Stone Company, 3 FMSHRC 

1702 (July 1981). 

In accord with the Act and the above cases, a MSHA inspector's right to 

inspect a mine is not dependent upon first obtaining permission of entry from 

an owner. Furthermore, an owner's denial of entry without such permission 

may reasonably be interpreted as obstructing the exercise of mandatory mine 

inspections under the Act. Upon encountering such denial of access to a 

mine, a MSHA inspector need not test his or her need to force entry to conduct an inspection. Upon a careful review of the evidence in this case, I 

find that respondent's owner required his permission for entry to the Blue 

Lizard and Markey Mines, and therefore effectively prevented a lawful, 

warrantless inspection of the premises by representatives of the Secretary. 

Beason and Johnson identified themselves and their purpose at the mines, and 

yet were notified by mine personnel that their presence, without permission 

granted by the mine owner, constituted a trespass (Tr. 13, 29, 94). The mine 

personnel's statements were authorized by the mine owner, and reflected the 

owner's admitted desire to prevent MSHA inspectors from entering the property 

without notice and permission (Tr. 107). 

1 JJ " • l_t ':i .J 
Since the provisions of section 103(a) of the Act and case law do not 

require notice and permission to precede an inspection, I conclude that 

Beason and Johnson were effectively denied free and ready access to 

respondent's mines. The MSHA inspectors were not required to force entry to 

conduct a mine inspection. Therefore, Beason rightly issued citations based 

upon respondent's failure to provide unconstrained entry to the mines for the 

purpose of conducting an inspection mandated by the Act. Accordingly, 

citation Nos. 336695 and 336696 are affirmed. 

PENALTIES 

Upon determining that the four citations described above were properly 

issued, the next issue is determining the appropriate civil penalties to be 

assessed for each violation. Section llO(i) of the Act sets forth six 

criteria to be considered in determining the amount of civil penalty: 

In assessing civil monetary penalties, the Commission shall 

consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business 

of the operator charged, whether the operator was negligent, 

the effect on the operator's ability to continue in business, 

the gravity of the violation, and the demonstrated good faith 

of the person charged in attempting to achieve rapid compliance 

after notification of a violation. 

The Secretary's proposed civil penalties for each of respondent's 

violations are as follows: 

Citation No. Violation Charged Amount 

336808 30 C.F.R. § 57.15-30 $ 8.00 

336809 30 C.F.R. § 57.4-52 10.00 

336695 30 u.s.c. § 813(a) 100.00 

336696 30 u.s.c. § 813(a) 100.00 

Mine History, Size, Financial Status. 

At the hearing, no evidence of previous violations was introduced. 

Eight miners were employed at the Markey Mine, while three worked at the Blue 

Lizard Mine (Tr. 99, 100). Respondent's owner, Calvin Black, stipulated that 

payment of the proposed penalties would not impair the company's ability to 

continue in business (Tr. 45). 

Negligence. 

Respondent's failure to comply with regulatory requirements involving 

self-rescuing devices and the operation of gasoline-powered engines underground constitutes ordinary negligence. Under the Act, the mine operator is 

required to be on the alert for, and correct, conditions representing hazards 

to the health and safety of people working in the mine. Under the facts of 

this case, respondent failed to exercise reasonable care in ensuring that all 

workers in his mine Cir.eluding employees of an independent contractor) 

complied with mandatory regulatory requirements. 

144~ 
On the other hand, respondent's violation of section 103(a) of the Act 

was intentional and thus the equivalent of gross negligence. Following an 

inspection of the Markey Mine, which resulted in the issuance of citations 

termed by respondent's personnel as "nit-picky and asinine" (Tr. 56, 111), 

respondent enforced a policy designed to prevent further inspections without 

notice or permission, and denied free mine entry for MSHA inspections. I 

find that such factors support petitioner's request that the associated 

proposed penalties be increased. 

Gravity. 

The gravity involved in respondent's violation of mandatory safety 

standards is moderate. Only two workers were not equipped with self-rescuing 

devices, and their use of a gasoline-powered jeep would end with the 

completion of their temporary surveying assignment. In contrast, I conclude 

that respondent's violation of section 103(a) of the Act was serious. 

Respondent's desire to restrict MSHA inspections, and its disdainful attitude 

toward citations that had already been issued, indicates disregard for the 

Act and the enforcement of its provisions. Again, such factors indicate that 

the associated proposed penalties should properly be increased. 

Good Faith. 

While respondent demonstrated good faith in rapidly abating the 

conditions violating mandatory safety standards, such good faith was not 

shown in the situation involving respondent's refusal to admit MSHA inspectors without notice or permission. Upon issuance of citations and 

withdrawal orders, respondent ignored the withdrawal orders and continued 

mine operations (Tr. 26, 32, 79). Respondent's attempt to introduce into 

evidence a document in which the inspector's "signature" had been filled in 

by mine personnel seems to indicate a further lack of good faith. 

CONCLUSION 

Accordingly, based upon the testimony introduced at the hearing and the 

contentions of the parties, and considering the criteria of section llO(i) of 

the Act, I conclude that the proposed penalties for respondent's violation of 

the mandatory safety standards stated in Citation Nos. 336808 and 336809 are 

appropriate and should be affirmed. 

The Secretary originally proposed penalties of $200 each for citation 

Nos. 336695 and 336696. That amount was subsequently reduced to $100 each by 

a compliance officer following the operator's assertion that there was a 

personality conflict involved in the issuance of the citations (Tr. 110). 

Based upon a careful review of all the evidence of record in this case, I am 

persuaded that the penalty of $100 each for these two citations is too low. 

The credible evidence of record shows that respondent deliberately 

attempted to prevent MSHA inspections conducted without notice by requiring 

owner permission prior to entry onto mine property. I find that respondent's 

11·1G 
representatives, in their continued demands for such permission, attempted to 

discourage and .intimidate the MSHA inspectors. I accept as most credible the 

inspectors' testimony that they believed the mine inspections could not be 

conducted without continued altercation and the possibility of encountering 

physical restraint. In addition, respondent's continuation of mining 

operations following issuance of withdrawal orders reinforces my conclusion 

that respondent deliberately disregarded MSHA's authority in this matter. 

Accordingly, I find the penalty as originally assessed at $200 for each 

violation to be fair under the circumstances. My determination to assess 

penalties in this case is consistent with Commission decisions, stating that 

the assessment of penalties during penalty proceedings involves a de novo 

determination based upon the criteria of section llO(i) of the Act-,-a~ 

information developed in the course of the adjudicatory proceeding. 

Sellersburg Stone Company, 5 FMSHRC 287 (March 1983); Eastover Mining 

Company, FMSHRC (July 1983) (ALJ). 

I therefore assess the following penalties for respondent's violation of 

a provision of the Act, and its mandatory safety standards: 

Citation No. 

336808 

336809 

336695 

336696 

ORDER 

Total: 

Amount 

$ 8.00 

10.00 

200.00 

200.00 

$418.00 

WHEREFORE IT IS ORDERED that citations Nos. 336808, 336809, 336695 and 

336697 are affirmed and respondent shall pay the above-assessed penalties 

totaling $418.00 within 30 days of the date of this decision. 

~-,! ~?.~/ ;:;~/1;f-t-(. &,,-? c-~ ~--t---

Distribution: 

vi ri{' 1 E. Vail 

Administrative Law Judge 

James H. Barkley, Esq., (Certified Mail) Office of the Solicitor 

United States Department of Labor 

1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294 

Mr. Calvin Black, President, (Certified Mail) Calvin Black Enterprises 

P.O. Box 906, Blanding, Utah 84511 

/blc 

144'/ 
FEDERAL Mlhr: SAFETY AND HEALTH REVIEW \.OMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 1 71983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent 

OLD BEN COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

UNITED MINE WORKERS OF 

AMERICA, 

Respondents 

. . 

DECISION 

Civil Penalty Proceeding 

Docket No: LAKE 82-79 

A.C. No: 11-00590-03145 

Contest Proceeding 

Docket No: LAKE 82-67-R 

Order No: 1222 940; 3/15/82 

No. 26 Mine 

Appearances: Mark M. Pierce, Esq., Chicago, Illinois, for 

Old Ben Coal Company, 

Before: 

Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois for 

Secretary of Labor 

Judge Moore 

This consolidated review anq penalty proceeding~was tried 

in Evansville, Indiana, on October 19-20, 1982. Final briefs for 

the parties were submitted on January 25, 1983. The parties have 

been advised that the cases were reassigned to me and, by their 

silence, are deemed to have waived any objections to my deciding 

the case on the basis of the record already made. 

The controversy involved here stems from a withdrawal order 

issued on March 15, 1982, charging an unwarrantable failure 

pursuant to section 104(d), of the Mine Safety Act, for an 

alleged violation of 30 C.F.R. § 75.1722(a). 
On the date in question, MSHA Inspector Wolfgang Kaak, 

accompanied by his supervisor Michael Wolfe, and Deputy Inspector 

Gary Brandon, conducted a spot inspection on respondent's No. 26 

mine, (Tr. 272). They proceeded underground, and at approximately 

10:30 a.m., they arrived at the 12CM-5 area in the 16th East 

section (Tr. 274). 

Once there, Inspector Kaak noticed tre belt drive head was 

not guarded as required in the standard. He then issued Withdrawal 

Order No. 1222940, which reads in part as follows: "The belt drive 

for the 12CM-5 belt was not adequately guarded. to prevent persons 

from coming in contact with the moving drive. The guarding had 

been removed and was lying along the ribs and on the floor." 

(Tr. 274}. ~ 

The area that needed guarding was approximately 6 to 8 feet in 

length along each side of the belt drive. However, other than one 

4 foot by 6 foot section on the east side, no guarding was installed. 

This one installed section matched the pieces of guarding lying 

on the floor. (Tr. 278, 279, 280, 290-292). 

Inspector Kaak's decision to issue the order was based in 

part on the conditions present at the belt head drive. He determined 

an accident was likely because thE: working section was ready to 

load coal; the belt was energized with the remote control switch 

in operation; there were repairmen working in the area and the 

floor was slippery. Voltage on belt starter boxes is usually 

about 480 volts, the starter box was about five feet from the belt 

drive. (Tr. 281, 283-284, 292, 293, 295, 310,311). 

The belt transported coal from the working unit to a main line 

belt which then transported the c"oal out of the mine. When in 

operation, the belt ran at 350 to 400 feet per minute. If a miner 

or other person brushed against these rollers while the belt was 

operating, it was likely they would become caught and injured or 

killed. Because the belt was in a highly accessible area, and it 

was common for those in the area to walk close by or underneath 

the belt, rather than going around it, the chance of such an accident 

assuming the belt was running, was likely. In fact, Inspector 

Kaak had been personally involved in one such accident. (Tr. 275-277, 

295-297, 307-308, 334.) 

Based on these considerations and his determination, caused 

by his belief that an accumulation of at least one inch of float 

coal dust covered the sections of guarding on the floor, that the 

guard had been off for at least one week, Inspector Kaak issued the 

order. Inspector Wolfe concurred with Inspector Kaak's decision 

that a 104(n) violation was warranted. (Tr. 282, 310, 314, 332, 

337-338, 349). 

Respondent asserted that the sections of guarding lying on 

the floor had been there several months and were not part of the 

guarding that was supposed to be installed around the 12CM-5 

belt drive. (Tr. 366,367, 381). While Old Ben concedes a violation 

in that at the time of the inspection the drive was not properly 

guarded, several of its employees denied allegations concerning 

the duration that the drive was inadequately guarded. 

1449 
On March 16, 1982, Kenny Kondoudis, a belt shoveler and 

UMWA Safety Committeeman, told Inspector Kaak that the guarding 

was on the belt drive in question the night before and that he 

had not taken the guarding off to clean the drive. (Tr. 363-365, 

376~77). Kondoudis had, Inspector Wolfe claimed, reported to him 

during the hearing that he had been confused about which belt , 

drive the citation had been written on. (Tr. 351-3). However, he 

was not called as a witness and as Old Ben pointed out, Kondoudis 

was very familiar with the areas of the mine. (Tr. 399). 

Later, on the day the citation was issued, Old Ben had a 

crew reinstall guarding on the 12CM-5 belt drive. In place of the 

hog wire type screen that the old guarding and sections on the 

floor were made of, a new wire mesh type guarding was installed. 

(Tr. 386-387, 390-303). 

One additional fact concerning the Pre-Shift Report deserves 

mention. Normally, the preshift examiner for the 8:00 a.m. 

shift would have observed the belt drive at approximately 5:00 a.m. 

(Tr. 379). However, the Pre-Shift Exam Book (Exhibit R-4), 

contained no reference to the missing guard. (Tr. 377-379, 391). 

Old Ben concedes and the evidence clearly establishes that 

a violation of 30 C.F.R. 75.1722(a), did occur. Old Ben contends 

that Withdrawal Order No. 1222940 was improperly issued under 

Section 104(d) (1) and should be vacated and "declared void ab 

initio" for three reasons: ---

(1) It is not based on a valid underlying citation issued 

under Section 104(d) (1). This citation (No. 1222597 dated 

3/11/82) was upheld in the bench decisions in related dockets 

numbered LAKE 82-85 and LAKE 82-66-R. 

(2) That the conditions cited in Order No. 1222940 did not 

meet the significant and substantial criteria of 104(d), the 

conditions then in existence "did not pose a reasonable likelihood that an injury would occur." 

This argument is rejected for two reasons. First, the 

facts in existence when the subject order was issued did show 

that this was a significant and substantial violation. Second, 

Old Ben's attorneys have demonstrated in their West ~irginia Law Review 

article (attachment 2 to the brief} "significant and substantial" 

is not a necessary finding for a 104(d} (1) order. 

(3) The final argument is that the cited violation did 

not constitute an unwarrantable failure under 104(d} (1). In order 

to be considered unwarrantable, Old Ben's failure to comply with 

the mandatory safety standard must have been a result of its 

negligence, or attributable to it through the negligence of its 

1450 
As stated, there was a clear violation of 30 C.F.R. 

§75.1722(a), a mandatory safety and health standard. However, 

for such violation to be unwarrantable the violative condition 

must have been one that the operator knew or should have 

known existed or which the operator failed to correct through 

indifference or lack of reasonable care. 

The determination of whether Old Ben should have known about the 

violation largely depends on how long it was in existance. If, 

as Inspectors Kaak and Wolfe represented, the guard on the 12CM-5 

belt had been off "for at least one week", it would be easy to 

infer that Old Ben "knew or should have known" about the 

violation. The belt drive was in an easily accessible working 

area of themine. 

However, this inference can not be so easily drawn if the 

guard had been.in place during the previous shift as Old Ben 

contends. At best, the circumstances surrounding the guarding's 

removal are questionable. There is no evidence to support 

Inspector Kaak's assumption that the pieces of guarding on the 

floor were part of the missing guarding. In fact, when later 

on that day the guarding was reinstalled, a new wire mesh type, 

different from what was found on the floor, was installed. The 

discovery of these sections and the Inspector's determination 

that they had been there for at least one week forms the basis 

of the Secretary's contention that the guarding had been off 

for a period long enough for Old Ben to have known about the 

violation. 

This evidence is not strong enough to rebut Old Ben's 

contrary evidence. This contrary evidence consists of: 

(1) The direct testimony of Donald Kellerman, the belt 

supervisor, that the 12CM-5 belt drive was properly guarded at 

3:30 a.m. the morning the citation was issued. 

(2) UMWA Safety Committeeman Kenny Kondoudis' report to 

his supervisors and Inspector Kaak that the 12CM-5 belt drive 

had been properly guarded that morning. 

(3) The failure of the Pre-Shift Exam Report, filled out at 

approximately 5:00 a.m. that morning, to indicate any irregularity 

in the guarding on the 12CM-5 belt drive. 

The only rebuttal to this evidence was Inspector Wolfe's 

assertion that Kenny Kondoudis admitted to him that he had been 

confused about which belt drive was in question. However, 

Kondoudis was thoroughly familiar with the mine. Additionally, 

several persons had heard him say that the guard had been up. 

(Tr. 351, 364, 398). Inspector Wolfe's assertion that Kenny 

Kondoudis was confused stands alone. 

1451 
The weight of evidence points in favor of Old Ben and its 

contention that the belt drive had been properly guarded earlier 

that morning. Thus, since the circumstances surrounding the 

occurrence of this violation are unknown, the Secretary'·s determination that the violation occurred as a result of Old Ben's 

unwarrantable failure to comply with the relevant safety standard 

is found to be unsupportable. The inference that Old Ben "knew 

or should have known" of the violation can not stand based on 

the evidence as presented. In this case, it has been found that 

the violation did not occur as a result of the unwarrantable 

failure of tbe mine operator to comply with the cited standard, 

thus failing the (d) (1) criteria. However, the significant and 

substantial finding as well as the underlying (d) (1) citation 

have been upheld.. Accordingly, Withdrawal Order No: 1222 94 0 

is modified to reflect that it is a citation issued pursuant to 

§ 104(a) of the Act. 

As to the penalty, there was no negligence proved and based 

on prior findings with respect to the likelihood of an accident 

occurring due to the violative condition, and the injuries 

which could have resulted therefrom, I conclude that the 

violation was serious. 

I find that Old Ben is a large coal mine operator but not 

one of the giants of the industry; it has an unsatisfactory history 

of previous violations; and Old Ben proceeded in good faith to 

achieve compliance with the violated safety standard after 

receiving notification of the violation. -

Weighing these various factors, it is concluded that a penalty 

of $300 is appropriate and the same is assessed. 

ORDER 

(1) Old Ben is ordered to pay a civil penalty of $300 to 

the Secretary of Labor within 30 days of the issuance of this 

decision. 

(2) All proposed findings of fact and conclusions of law not 

incorporated herein are rejected. 

~ (\ 'In #k/ a - Charles C. Moore, Jr., 

Administrative Law Judge 

1452 
Distribution: 

Mark M. Pierce, Esq., Law Department, Old Ben Coal C0mpany, 

69 W. Washington Street, Chicago, IL 60602 (Certified Mail) 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 So. Dearborn Street, Chicago, IL 60602 

(Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900 15th 

Street, NW., Washington, D.C. 20005 (Certified Mail) 

1453 

/db 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW· JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGl_NIA 22041 AUG -18 11)3 

OLD BEN COAL COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

Docket No: 

Order No: 

v. 

LAKE' 82-75-R 

1223403 3/3/82 

SECRETARY OF LABOR, and 

UNITED MINE WORKERS OF 

AMERICA, 

Respondents 

Appearance: 

Before: 

DECISION 

Mark M. Pierce, Esq., Old Ben Coal Company, 

Chicago, Illinois, for Contestant; 

Miguel J. Carmona, Esq., Office of the 

Solicitor, U.S. Department of Labor, Chicago, 

Illinois, for Respondents. 

Judge Moore 

The above case was re-assigned from Judge Lasher to me 

on June 23, 1983. Withdrawal order No: 1223403 was issued 

under §104(d) (1) of the Federal Mine Act and the underlying 

citation listed on the order is No: 1222957 issued on March 

11, 1982. The matter came on for hearing before Judge· 

Lasher on October 20, 1982, in Evansville, Indiana. At that 

time certain stipulations were read into the record. Old 

Ben admits the violation occurred, admits it was due to an 

unwarrantable failure and that it was significant and 

substantial. In fact it has agreed to pay the full proposed 

assessment associated with this citation. It challenges, 

however, the technical validity of the order. 

Old Ben argues that the underlying citation was .. invalid. 

It also argues that even if the underlying citation is 

valid, the order in issue in this case is not valid·because 

it should have been issued under §104(d) (2) instead, of 

104 (d) (1). Old Ben argues that once a citation is· issued 

under §104(d) (1) only one order can be issued thereafter 

under that section. It bases this argument on the fact that 

the wording of the section states that if the inspector 

finds an unwarrantable violation within 90 days after issuing 
the citation "he shall forthwith issue an order requiring 

•••• " Old Ben contends that that section does not authorize 

issuing multiple orders under 104(d) (1). 

I disagree. If a 104(d) (1) citation is issued early in 

an inspection and shortly thereafter a 104(d) (1) order is 

issued, any additional order for unwarrantable failure 

issued during that inspection would have to be issued under 

§(d) (1). The (d) (2) orders cari only be issued during "any 

subsequent inspection •••• " Old Ben's interpretation 

would not allow for the issuance of (d) (1) orders during the 

same inspection in which the (d) (1) citation was issued and 

for that reason alone is incorrect. I would agree, however, 

that once a (d) (1) order is issued, that any unwarrantable 

violation found during a subsequent inspection, should be 

issued under 104(d) (2). 

At the time that the briefs were prepared Judge Lasher 

had already rendered a bench decision in which he had upheld 

the underlying 104(d) (1) citation. Counsel for Old Ben 

nevertheless requested Judge Lasher to vacate the order 

because Judge Lasher's decision on the underlying citation 

was erroneous. No reasons as to why counsel thought the 

decision to be erroneous were given. It is curious as to 

how counsel expected to prevail in that kind of argument. 

I can see no difference in the effect of the two orders 

that can be issued under §104(d). Once the orders start 

issuing they continue until an inspection of the mine "disclose 

no similar violations." Such an inspection puts the operator 

back at the beginning of 104(d) (1). I therefore can not see 

any prejudice to Old Ben resulting from the fact that this 

order was issued under a (d) (1) rather than a (d) (2) • 

In Secretary of Labor v. Old Ben Coal Company, 2 FMSHRC 

1187 (June 1980) the Commission approved Judge Broderick's 

treatment of a notice of violation and 3 withdrawal orders 

issued under (104) (c) of the 1969 Coal Act. All of the 

withdrawal orders had been issued under§ 104(c) (1) of the 

old act, but only one of the three had been issued within 

90 days of the notice of violation. The Commission held 

that the effect of Judge Broderick's decision was to modify 

the third and fourth orders so as to base them on t~ first 

order rather than on the notice of violation. The Commission 

said he had that authority. 

In Secretary of Labor v. Consolidation Coal Company, 

FMSHRC 1791 (October 1982) the Commission approved Judge 

Melick's action of converting a 104(d) (1) order into a 

104(d) (1) citation and then holding a hearing on the citation. 

Judge Melick had earlier held the original 104(d) (1) citation 

upon which the order in question was based to be invalid. 

1455 
Counsel for Old Ben Coal Company considers the Commission's 

1980 Old Ben Company case discussed above as "illadvised, un.sound and premature •••• " (See brief at P.14). 

The brief goes on to urge Judge Lasher, and me by substitution, 

"to discount" the Commission's decision. I have no authority 

to disregard or "discount" a Commission decision and I am 

surprised that counsel would urge that action. 

In my view both of these cases are helpful to Old Ben. 

Relying on these ~ases, I am converting the instant§ 104(d) (1) 

order to a § 104(d) (2) order. Since the citation was issued 

during an "ABC" inspection and the order in question here 

was issued during a "CAA" inspection, this order was issued 

during a subsequent inspection and should have been issued 

under § 104 (d) (2) • 

As such, its validity does not depend on the validity 

of the 104(d) (1) citation but on the validity of 104(d) (1) 

order No: 1222940. which was converted to a 104(a) citation 

in Docket No: LAKE 82-67-R. 

The order therefore fails since it is not underlain by 

a valid 104(d) (1) order. But because Old Ben admits the 

violation was unwarrantable and significant and substantial, 

I can not convert the order to a 104(a) citation. I hereby 

convert it to a 104(d) (1) citation and as such it is AFFIRMED. 

Distribution: 

~cJJt~t, Charles C. Moore, Jr., 

Administrative Law Judge 

Mark M. Pierce, Esq., Law Department, Old Ben Coal Company, 

69 W. Washington Street, Chicago, Illinois 60602 (Certified Mail) 

Miguel J. Carmona and Richard J. Fiore, Esqs., Office of the 

Solicitor, U.S. Department of Labor, 230 So. Dearborn Street, 

Chicago, Illinois 60604 

1456 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 9 1:111r -.'._:;:ij" l • .., t] I'"''"" 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

RIVEPSIDE CLAY COMPANY, 

Respondent 

Docket No. SE 81-62-M 

A.C. No. 01-01112-05002R 

Riverside Pit & Plant 

DECISION 

Appearances: 

Before: 

Terry Price, Esq., Office of the Solicitor, U.S 

Department of Labor, Birmingham, Alabama, for 

Petitioner; 

Lee H. Zell, Esq., Berkowitz, Lefkovits and Patrick, 

Birmingham, Alabama, for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

Petitioner seeks a civil penalty for an alleged violation of 

section 103(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 813 (a) ("the Mine Act"), for Respondent's refusal to 

permit a duly authorized representative of the Secretary of Labor 

to conduct an inspection of its facility. Respondent contends 

that its facility is not a mine but a refractory plant, and that 

pursuant to an Interagency Agreement between MSHA and the Occupational Safety and Health Administration ("OSHA"), the jurisdiction 

to regulate the facility is under OSHA. Pursuant to notice, the 

case was called for hearing in Birmingham, Alabama, on April 12, 

1983. Barton M. Collinge and Lawrence J. E. Hofer testified on 

behalf of Petitioner. John c. Morris and Denis A. Brosnan testified on behalf of Respondent. Both parties have filed posthearing 

briefs with proposed findings of fact and conclusions of law. 

Based on the entire record, and considering the contentions of the 

parties, I make the following decision. 
FINDINGS OF FACT 

1. Respondent operates a clay pit from which it extracts 

clay and a plant, located several miles from the pit, in which 

it produces a re~ractory clay called Alapatch and various other 

clay and non-clay refractories which it sells to customers. 

2. The plant employs about 60 workers, five of whom are 

engaged in milling the clay preparatory to either bagging it and 

shipping it to customers, or transporting it to a mixing area 

in the plant. 

3. In the mixing area the clay is mixed with other materials 

including silicon carbide, graphites, tar and other materials to 

make products such as anhydrous tap hole materials used in blast 

furnances, plastic refractories, and castable refractories. 

Alapatch is used in some of the refractory manufacturing processes, 

as well as clay from other sources. Thus, some of the plastic 

refractories contain Alapatch and some do not. The so called 

neutral refractories and fixed shape refractories, also produced at 

the plant, do not contain Alapatch. 

4. In fiscal year 1981, approximately 70 to 75 percent of 

the dollar volume of Respondent's sales from the plant was received 

for refractory specialties and 25 to 30 percent for Alapatch. 

5. MSHA conducted regular, spot and survey inspections of 

Respondent's Pit and Plant beginning in August, 1973. [Respondent 

does not contest MSHA's jurisdiction to inspect its clay pit, but 

only its jurisdiction over the plant]. The last regular inspection 

was conducted on May 8, 1979. An accident investigation was conducted at the plant on February 4 and 5, 1981, following a fatal 

accident on February 3. On February 10 and 11, an attempt was made 

to follow up the investigation and the inspector was refused entry. 

This proceeding arose out of that refusal of entry. 

6. On May 9, 1979, following the execution of an Interagency 

Agreement between MSHA and OSHA on March 29, 1979, MSHA notified 

Respondent by letter that it was agreed that refractory clay 

operations such as Respondent's plant would come under the 

authority of OSHA while the clay mining would remain under MSHA. 

On September 6, 1979, this decision was reversed and Respondent 

was notified that MSHA and OSHA agreed that MSHA would have jurisdiction over the pit and plant. OSHA has never inspected the 

plant. 
7. Section A(3) of the Interagency Agreement provides that 

the Mine Act would apply to mine sites and milling operations, 

except where the Mine Act does not cover or apply to occupational 

safety and health hazards on mine or mill sites (e.g. hospitals on 

mine sites), or where no MSHA standards are applicable, then the 

OSHAct would be applied. 

8. Section B(2) of the Agreement refers to the Mine Act 

which gives MSHA authority over mineral extraction and mineral 

milling, and directs the Secretary in making a determination of 

what constitutes mineral milling, "to give due consideration to 

the convenience of administration resulting from the delegation to 

one Assistant Secretary of all authority with respect to the health 

and safety of miners employed at one physical establishment." 

9. Section B(4) of the Agreement provides that the term 

milling may be expanded to apply to mineral product manufacturing 

processes which are related to milling or the term may be narrowed 

to exclude processes listed in Appendix A where such processes are 

unrelated technologically or geographically to mineral milling. 

Determinations shall be made by agreements between MSHA and OSHA. 

10. Section B(5) of the Agreement provides that the following factors shall be considered in determining what constitutes 

mineral milling: the processes conducted at the facility, the 

relation of all processes at the facility to each other, the 

number of individuals employed in each process, and the expertise 

and enforcement capability of each agency with respect to the 

safety and health hazards associated with all the processes conducted at the facility. The consideration of these factors will 

reflect Congress' intention that doubts be resolved in favor of 

inclusion of a facility under Mine Act coverage. 

11. Section B(6) (b) provides inter alia that OSHA jurisdiction includes refractory plants whether or not located on mine 

property. 

12. Section B(8) provides that questions of jurisdiction 

shall be resolved if possible by MSHA District Manager and OSHA 

Regional Administrator in accordance with this agreement and 

existing law and policy. If a question cannot be resolved at the 

local level it will be transmitted to the National offices and, if 

necessary, to the Secretary. 

13. Appendix A to the Agreement defines milling as "the art 

of treating the crude crust of the earth to produce therefrom the 

primary consumer derivatives. The essential operation in all such 

processes is separation of one or more valuable desired constituents of the crude from the undesired contaminants with which it 

is associated." The Appendix further provides that milling consists 

145~ 
of one or more of the following processes: crushing, grinding, 

pulverizing, sizing, concentrating, washing~ drying~ roasting, 

pelletizing, sintering, evaporating, calcining, kiln treatment, 

sawing and cutting stone, heat expansion, retorting, leaching, 

and briquetting. Each of these processes is defined in the 

Appendix. 

ISSUE 

Whethe~ MSHA has jurisdiction under the Mine Act to inspect 

the operation of Respondent's Plant. 

CONCLUSIONS OF LAW 

1. The Federal Mine Safety and Health Review Commission and 

the undersigned Administrative Law Judge are empowered to determine 

whether the operation of the facility in question come within the 

coverage of the Mine Act. "MSHA's authority to regulate a workplace 

is determined by the scope of the Mine Act's coverage ..•. " 

Secretary v. Carolina Stalite Company, 4 FMSHRC 423, 425 (1982). 

2. Doubts as to whether a facility is covered under the Mine 

Act are to be resolved in favor of coverage. 

DISCUSSION 

In its Report on S. 717 which became the Mine Act, the Senate 

Committee Human Resources stated 

"The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's 

intention that what is considered to be a mine and to 

be regulated under this Act be given the broadest 

possible interpretation, and it is the intent of this 

Committee that doubts be resolved in favor of inclusion 

of a facility within the coverage of the Act." 

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

in Legislative History of the Federal Mine Safety and Health Act 

of 1977 at 602 (1978). 

3. The Mine Act includes in its coverage the "milling of 

. minerals, or the work of preparing ... minerals." Section 

3(h) (1) of the Act directs the Secretary "in making a determination 

of what constitutes mineral milling" t6 ''give due consideration to 

the convenience of administration resulting from the delegation to 

one Assistant Secretary of all authority with respect to the health 

and safety of miners employed at one physical establishment." 
4. Although the MSHA-OSHA Interagency Agreement cannot 

finally determine the jurisdiction of .the agencies involved, 

Secretary v. Carolina Stalite Company, supra, the Commission will 

give due deference to the interpretation of that agreement 

advanced by the Secretary. 

5. Respondent is subj~ct to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the 

Riverside Plant. 

DISCUSSION 

It is clear and Respondent concedes that part of the work 

performed in the Plant consists of mineral milling and is therefore under the coverage of the Mine Act. Respondent argues that 

milling constitutes only a small part of the operation of what is 

essentially a refractory plant. The expert witnesses for Petitioner 

and Respondent differ sharply in their definition of refractory. 

MSHA's expert testified that in his opinion at least some of the 

refractory producing activities in Respondent's plant involved 

milling. The Commission observed in Carolina Stalite, supra at 

p. 424 that ". 'milling' and 'preparation' can be perceived 

as words used, in a loose sense, interchangeably to describe the 

entire process of treating mined materials for market . . we 

believe the 1977 Mine Act's use of both terms signals an expansive 

reading is to be given to mineral processes covered by the Mine 

Act, rather than requiring a clear distinction between what is a 

milling or a preparation process." 

I conclude based on an expansive reading of the term that at 

least a part of Respondent's refractory production (that using 

mined or milled minerals) involves the milling or preparing of 

minerals and therefore comes under the Mine Act. All of the work 

at the Plant is performed in a single facility, although in 

separate buildings. The Secretary has determined that administrative convenience would be served by delegating the authority 

over health and safety at Respondent's plant to MSHA even though 

part of the plant activities would normally fall under OSHA's 

jurisdiction. The Mine Act gives the Secretary this authority and 

there is no evidence in this case to justify the Commission's 

overturning his exercise of that authority. 

6. The refusal of Respondent to permit the MSHA inspector 

to enter its plant to conduct an inspection is a violation of 

section 103(a) of the Mine Act. 

7. Respondent is not a large operator. It employs 60 people 

at its plant and an unknown additional number at its clay pit. 

From July 1, 1980 to February 28, 1982, its sales of Alapatch 

amounted to $352,376.11, and its sales of "specialties" amounted 

14G1 
to $2,639,781.84. From July 1, 1982 to December 31, 1982, it sold 

276,085.86 Alapatch and 1,995,160.85 specialties. I conclude that 

it is of moderate size. 

From August 1973 to February 1981, approximately 274 violations 

were assessed against Respondent's pit and plant. I conclude that 

this is a moderate history and a penalty otherwise appropriate in 

this case should not be increased because of it. There is no evidence that a penalty in this case will have any effect on Respondent's ability to continue in business, and I conclude that it will 

not. 

8. I conclude that the violation here was very serious. It 

involved the refusal to permit an inspector to follow up on a 

fatality investigation. The facts surrounding the fatality are not 

part of the record in this case, but such an investigation is of the 

greatest importance to the proper enforcement of the Act and the 

protection of the safety and health of the employees. Cf. Secretary 

v. Waukesha Lime & Stone Company, 1 FMSHRC 512 (1979) (ALJ). 

9. Respondent contends that any penalty assessed in this case 

should be nominal since Respondent is merely seeking through this 

proceeding to have a determination made as to whether MSHA or OSHA 

has jurisdiction. But the evidence shows that MSHA has inspected 

the facility for many years. Although one letter from MSHA indicated that OSHA had jurisdiction, it was promptly corrected. OSHA 

has never inspected the facility. It is important to note that 

Respondent's refusal to admit the inspector followed a fatal injury 

to an employee. I conclude that Respondent knew or should have 

known that MSHA had authority to inspect. The violation was willful. 

10. Based on the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for the violation is $500. 

ORDER 

Based on the above findings of fact and conclusions of law, 

Respondent is ORDERED to pay the sum of $500 within 30 days of 

the date of this decision for the violation found herein to have 

occurred. 

). p-'/ I ' ; 

)

(Vl/\UZ _ _s' /,Y(,J i/~-'cf::.+7 {:'/<..__ 

1 James A. Broderick 

· Administrative Law Judge 

Distribution: 

Terry Price, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1929 South Ninth Avenue, Birmingham, AL 35256 

(Certified Mail) 

Lee H. Zell, Esq., Berkowitz, Lefkovits & Patrick, 1400 City 

National Bank Building, Birmingham, AL 35203 (Certified Mail) 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 22, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-32 

A.C. No. 46-01436-03509 

Shoemaker Mine 

ORDER TO SOLICITOR TO SUBMIT INFORMATION 

The Solicitor has filed a motion to withdraw his 

Petition for the Assessment of Civil Penalty in this case. 

The subject citation was issued on May 7, 1982, for a 

violation of 30 C.F.R. § 75.200 because center bolting was 

not completed within 24 hours as required by the approved 

roof control plan. According to the Solicitor the inspector 

determined that center bolts had not been installed at the 

cited location for a period of 34 hours. 

However, the Solicitor further states that "The condition had been abated even before issuance of the citation." 

The Solicitor then states that the operator has paid 

the penalty assessment of $20. 

If as the Solicitor states, the condition was corrected 

before the citation was issued then no violation existed at 

the critical time. Republic Steel Corp., 5 FMSHRC 1158 

(June 1983) . Under such circumstances the citation should 

not have been issued and no penalty should have been assessed. 

It is inconsistent for the Solicitor to seek to withdraw his 

penalty petition and at the same time allow the operator to 

pay a $20 penalty. 

Accordingly, the Solicitor should review this matter 

and determine whether or not a violation actually existed at 

the time the citation was issued and if it did not, then to 

free the operator of liability. 

148~3 
In light of the foregoing, it is Ordered that the 

Solicitor advise me with respect to the foregoing within 30 

days of the date of this order. 

Law Judge 

Distribution: 

Howard K. Aqran, Esq., Office of the Solicitor, U. S. 

Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Robert M. Vukas, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburqh, PA 15241 (Certified Mail) 

/ln 1~64 

f 
FEDERAL· MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 2 31983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION, 

Respondent 

and 

EMERY MINING CORPORATION, 

Applicant 

v. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

: 

Civil Penalty Proceeding 

Docket No: WEST 82-48 

A.O. No: 42-00121-03103 

Docket No: WEST 82-80 

A.O. No: 42-00121-03106 H 

Deer Creek Mine 

CONTEST PROCEEDINGS 

Docket No: WEST 81-400-R 

Order No: 1022357; 9/9/81 

Deer Creek Mine 

DECISION ON REMAND 

Appearances: 

Before: 

James H. Barkley, Esq., Office of the Solicitor, 

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

for Petitioner; 

Evert w. Winder, Manager, Health and Safety, 

Emery Mining Corporation, Huntington, Utah, 

Todd D. Peterson, Esq., Attorney for Respondent 

Judge Moore 

146~ 
On August 11, 1983, the Commission remanded the above 

case to me for the purpose of assessing the appropriate civil 

penalty. The Commission has decided that the violations occurred, 

hence I have only the criteria to ·consider. The regulation 

in question states: 

i•each miner shall receive a minimum of 8 hours 

of annual refresher training as prescribed in 

this section." 

The company and I interpreted the words "annual refresher 

training" as meaning once every calendar year. The government 

argues that the words mean "within 12 months", but in its 

appeal brief sort of "weazel" words it in such a way that it 

means every 13 months (see government exhibit 1 and page 9 of 

the government's main brief). The Commission interprets the 

words to mean "within 12 months of the last received training". */ 

The Commission's ruling necessitates the recision of 

government exhibit 1, which is a MSHA policy memorandum No: 

81-2ET. MSHA is accordingly ordered to rescind that policy 

memorandum. 

I can not find that the respondent was negligent when 

I agree with respondent's interpretation of the regulation. 

The fact that the Commission disagreed does not mean that 

respondent was negligent. I therefore find no negligence. 

There was no gravity proved and I therefore find none. 

Also, the fact that MSHA approved respondent's refresher 

training plan, militates against substantial penalties. A 

total penalty of $100 is assessed for all violations involved. 

Emery Mining Company is accordingly ORDERED to pay tc MSHA 

within 30 days, a civil penalty in the total sum of $100. 

Charles C. Moore, Jr., 

Administrative Law Judge 

The Commission's ruling will result in the continual 

advance of the retraining date. If a miner is trained on 

June 5 of one year then June 5 of the following year is 

not within the last 12 months. A miner must be retrained 

before June 5. 

l ife·· •:tob 
Distribution: 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut 

Avenue, NW., Washington, D.C. 20036 (Certified Mail) 

Linda Leisure, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

(Certified Mail) 

Mary Lu Jordan, Esq., UMWA, 900 15th Street, NW., Washington, 

D.C. 20005 (Certified Mail) 

/db 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 29, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

YAKIMA CEMENT PRODUCTS 

COMPANY, INC. , 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-37-M 

A.C. No. 45-00727-05501 

East $alah Pit & Plant 

FURTHER ORDER TO SUBMIT INFORMATION 

In response to my order of July 15, 1983, the Solicitor 

now has submitted a response. The response sets forth the 

size of the operator's business, history of prior violations, 

good faith compliance and ability to continue in business. 

However, with respect to negligence and gravity the 

Solicitor merely refers me to Items 20 and 21 on each 

citation. In my prior order f stated that I could not 

approve settlements based upon checking boxes when no 

reasons are given. I adhere to this view. Other Regional 

Solicitors in response to orders just like the one issued in 

this case have submitted the necessary information in order 

for their proposed settlements to be approved. I do not see 

why I should accept anything less from this Regional Solicitor. 

I particularly note settlement motions recently received from 

the Regional Solicitor, Philadelphia and the Regional Solicitor, 

Nashville. 

It is hereby Ordered that within 45 days of the date of 

this order the Solicitor file information adequate for me to 

determine the statutory criteria of negligence and gravity 

sufficient to make a determination as to proper penalty 

amounts. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Ernest Scott, Jr., Esq., Office of the Solicitor, U. S. 

Department of Labor, 8003 Federal Office Building, Seattle, 

WA 98174 {Certified Mail) 

Yakima Cement Products Company, Inc., 1202 South 1st Street, 

Box 436, Yakima, WA 98901 (Certified Mail) 

/ln 1463 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 3 D um 

UNITED MINE WORKERS OF AMERICA 

CUMWA) on behalf of 

. . 

. . DISCRIMINATION PROCEEDING 

DONALD E. COLCHAGIE, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

Docket No. PENN 82-323-D 

PITT CD 82-13 

Renton Mine 

Appearances: Joyce A. Hanula, United Mine Workers of America, 

Washington, D. C. for Complainant; 

Before: 

Robert M. Vukas, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Melick 

This case is before me upon the complaint of the United Mine 

Workers of America (Union) on behalf of Donald E. Colchagie, 

under section 105Cc)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801, et seg., the "Act," alleging that the 

Consolidation Coal Company (Consol) discriminated against Mr. 

Colchagie in violation of section 105(c)(l) of the Actl by: 

(1) failing to pay him in accordance with Section 103(f) of the 

!section 105(c)(l) of the Act provides in part as follows: 

No person shall *** in any manner discriminate 

against or *** cause discrimination against or otherwise interfere with the exercise of the statutory 

rights of any miner, [or] representative of miners *** 

in any coal *** mine subject to this Act *** because of 

the exercise by such miner [or] representative of 

miners *** on behalf of himself or others of any statutory right afforded by this Act. 

14G!J 
2 

Act2 for accompanying a Federal Mine Safety and Health Administration CMSHA) inspector on a mine inspection during the 8:00 

a.m. to 4:00 p.m. shift on Monday, April 5, 1982, and (2) issuing 

him an unexcused absence for missing his regular 12:00 midnight 

to 8:00 a.m. shift on April 6, 1982. Evidentiary hearings were 

held on the complaint in Washington, Pennsylvania. 

During relevant times, Donald Colchagie was an elected member of the Union safety committee at the Renton Mine. On Friday, 

April 2, 1982, in accordance with the provisions of Section 

103Cf>, Mr. Colchagie accompanied MSHA inspector Richard Zilka as 

the representative of miners on a mine inspection. On April 5, 

1982, after completing his regular 12:00 midnight to 8:00 a.m. 

work shift, Mr. Colchagie met Inspector Zilka for a continuation 

of the inspection.3. Colchagie left the mine between 4:30 

and 5:30 p.m. that day. He then lived only ten to fifteen minutes driving time from the mine. He did not report for his regular 12:00 midnight to 8:00 a.m. shift on Tuesday, April 6, 1982, 

and was given an unexcused absence. Although Colchagie was paid 

for his regular workshift on April 5, 1982, (12:00 midnight to 

8:00 a.m.), he was not given any additional "walkaround" pay for 

accompanying Inspector Zilka on the inspection performed during 

the 8:00 a.m. to 4:00 p.m. shift on April 5. 

The Union first alleges that Mr. Colchagie was discriminated 

against because he was not given "walkaround" pay for the 8:00 

a.m. to 4:00 p.m. shift on April 5, 1982, purportedly in viola2section 103Cf) of the Act provides in part as follows: 

Subject to regulations issued by the Secretary, a 

representative of the operator and a representative 

authorized by his miners shall be given an opportunity 

to accompany the Secretary or his authorized representative during the physical inspection of any coal or 

other mine made pursuant to the provisions of subsection Ca>, for the purpose of aiding such inspection and 

to participate in pre- or post-inspection conferences 

held at the mine. Where there is no authorized miner 

representative, the Secretary or his authorized representative shall consult with a reasonable number of 

miners concerning matters of health and safety in such 

mine. Such representative of miners who is also an 

employee of the operator shall suffer no loss of pay 

during the period of his participation in the inspection made under this subsection. ***· 

3It is not a-lleged that it was necessary for Mr. Colchagie to be 

present at this inspection on the grounds that it was a continuation of the earlier inspection. 

11 t'O 
3 

tion of that part of section 103(f) which requires that the representative of miners who is also an employee "shall suffer no loss 

of pay during the period of his participation in the inspection". 

However, since Mr. Colchagie had already worked on the 12:00 to 

8:00 a.m. shift on April 5, 1982, was paid for that work, and was 

not scheduled to work on the 8:00 a.m. to 4:00 p.m. shift, I find 

that indeed he did not suffer any loss of pay during the period 

of his participation in that inspection on the 8:00 a.m. to 4:00 

p.m. shift. See UMWA, ex rel. Norman Beaver v. North American 

Coal Corporation, 3 FMSHRC 1428 (1981). Since there was accordingly no adverse action taken against Colchagie in this regard, 

there was no unlawful discrimination against him under section 

lOSCc)(l). Secretary, ex rel. David Fasula v. Consolidation Coal 

Co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub nom Consolidation Coal Co. v. Secretary, 663 F. 2d 1211 C3d Cir. 1981). 

The Union would attempt to distinguish the Beaver case on 

the grounds that Mr. Colchagie, unlike Mr. Beaver, was purportedly the only qualified miner available to accompany Inspector Zilka on the April 5 inspection. The evidence does not, however, 

support the distinction. According to the undisputed testimony 

of Inspector Zilka, the sole purpose of his visit at that time 

was to continue interviewing motormen in regard to the "drags", 

i.e., an emergency braking mechanism on the coal cars. In fact, 

it is clear that Zilka had already interviewed most of the 

motormen before Colchagie appeared and, according to Zilka, there 

was no need for Colchagie to have been present for those 

interviews. 

It is undisputed, moreover, that another safety committeeman, Phil Mastowski, or any other miner working the 8 a.m. to 4 

p.m. shift on April 5 could have accompanied Inspector Zilka and 

could have received "walkaround" pay for that service. Mastowski 

admitted that he could have accompanied Zilka at that time and 

was aware of the problem with the "drags" from discussions at a 

safety committee meeting. The fact that Mastowski may not have 

physically examined the "drags" up to that point in time would 

not, of course, have necessarily made him unqualified, or even 

less qualified, to have accompanied the inspector. Under these 

circumstances, it is apparent that Colchagie was not the only 

miner or representative of miners capable of accompanying the 

MSHA inspector during his interviews and that Colchagie was not 

uniquely qualified to perform this function. 

The Union also argues, however, that there was unlawful 

discrimination against Colchagie because he was denied an excused 

absence for failing to work his regular 12 midnight to 8 a.m. 

shift on the following day, April 6. He claims that he was 

charged with an unexcused absence because of his participation in 

the walkaround on the 8 a.m. to 4 p.m. shift on April 5. Since 

1471 
4 

there is no dispute that Mr. Colchagie's participation in the 

walkaround was a protected activity, the issue is whether the 

operator was motivated in any part by this protected activity in 

giving Colchagie an unexcused absence for his failure to work on 

April 6. Pasula, supra. 

In particular, Colchagie claims that since he had worked his 

regular 12:00 midnight to 8:00 a.m. shift on April 5, and had 

"double shifted" that day by accompanying Inspector Zilka during 

his interviews on the 8:00 a.m. to 4:00 p.m. shift, he was too 

tired to report for his regular 12:00 midnight to 8:00 a.m. shift 

on April 6. I note, however, that according to Colchagie himself, he left the mine between 4:30 and 5:30 p.m. on April 5 and 

lived only ten to fifteen minutes travel time from the mine. In 

spite of his alleged fatigued condition, however, he did not retire to bed until sometime after 10:30 or 11:00 that night. 

Since Colchagie did not use the more than six hours between 

shifts to rest, I do not find his alleged inability to work his 

regular 12 midnight to 8 a.m. shift on April 6th to be reasonably 

related to his "walkaround" with Inspector Zilka on the afternoon 

of April 5th. 

In addition, Mr. Colchagie has failed to cite any case in 

which any other employee who had similarly double shifted had 

received an excused absence from reporting to his regular work 

shift after a similar break between shifts on the basis of his 

previous double shifting alone. Indeed, according to the undisputed testimony of Mine Superintendent Hathaway, it was not uncommon for miners to work their regular shift after having "double 

shifted" eight hours before that regular workshift. Moreover, it 

is undisputed that no one had ever been granted an excused absence under those circumstances. 

The issuance of an unexcused absence on the facts of this 

case was also consistent with of Consol's Attendance Control Program (Operator's Ex. 1). Item (a)(7) of the program provides as 

follows: 

Management may excuse days off for good cause 

provided: (a) the employee has made a reasonable effort 

to notify management in advance of the absence; and Cb> 

written verification is furnished, addressing the reason for the absence. Management will make a determination of good cause on an individual case by case basis. 

According to Superintendent Hathaway and the records clerk, 

there was no evidence in the company records that Mr. Colchagie 

had notified management to request an excused absence prior to 

his shift on April 6, 1982. While this testimony does not in 
5 

itself prove that Colchagie did not call in and credible evidence 

exists that Colchagie did in fact call in to notify management of 

his anticipated absence, there was admittedly no written verification addressing the reasons for the absence. Hathaway testified, 

moreover, that even had Colchagie given proper notice, he would 

not have been granted an excused absence, since the basis for his 

absence, i.e., doubleshifting under these circumstances, had 

never been accepted as "good cause". As previously noted, an 

excused absence had never previously been granted for any other 

person under similar circumstances. 

Under all the circumstances, I cannot find that in denying 

Mr. Colchagie an excused absence for his regular workshift on 

April 6, 1982, Consol treated him in ny discriminatory manner. 

Thus, the Complainant has not succeed d in establishing a prima 

facie case of unlawful discrimination under the Act. Accordingly, the complaint is denied and this ase is d smissed. 

Distribution Cby certified 

Joyce A. Hanula, Legal Assis a t, Unite Mine Workers of America, 

United Mine Workers Building, 900 Fifteenth Street, N.W., Washington, DC 20005 

Robert M. Vukas, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 

1473 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUS 30 • 

SECRETARY OF LABOR, 

MINE S.AFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

U.S. STEEL MINING CO., INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 82-387 

A. C. No. 46-01816-03501 

Gary No. 50 Mine 

Appearances: David E. Street, Esq., Office of the Solicitor, 

U. s. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Steffey 

A hearing in the above-entitled proceeding was held in 

Beckley, West Virginia, on May 10, 1983, under section 105(d), 

30 U.S.C. § 815(d), of the Federal Mine Safety and Health Act 

of 1977. Simultaneous initial posthearing briefs were filed 

on July 13, 1983, by counsel for both petitioner and respondent. 

Counsel for petitioner filed on July 25, 1983, a reply to 

respondent's brief. 

Issues 

The petition for assessment of civil penalty filed on 

October 27, 1982, by the Secretary of Labor in Docket No. WEVA 

82-387 seeks to have civil penalties assessed for one alleged 

violation of 30 C.F.R. § 75.1106-2(c) and two alleged violations of 30 C.F.R. § 75.1003. Counsel for the Secretary stated 

at the hearing that one of the citations (No. 1066939) alleging 

a violation of section 75.1003 had been vacated and moved that 

the petition for assessment of civil penalty be withdrawn with 

respect to that alleged violation. I granted the motion at the 

hearing (Tr. 5) and indicated that my decision would reflect 

the Secretary's withdrawal of the petition to that extent. 

Counsel for U. s. Steel Mining Co., Inc. (USS) indicates 

in her brief (p. 2) and stated at the hearing (Tr. 6) that she 

is not contesting the question of whether violations of sections 75.1106-2(c) and 75.1003 occurred, but only that the 
circumstances cited by the inspector did not constitute "significant and substantial" violations as that term has been 

defined by the Commission in Cement Division, National Gypsum 

Co., 3 FMSHRC 822 (1981). 

The second issue raised by the petition for assessment of 

civil penalty is the amount of the civil penalty which should 

be assessed for each violation. Counsel for USS contends in 

her brief (p. 6) and argued at the hearing (Tr. 6-7) that a 

judge is required to assess the civil penalty of $20 provided 

for in 30 C.F.R. § 100.4 if the judge finds that an alleged 

violation is not significant and substantial. 

Findings of Fact and Decision as to Citation No. 1066938 dated 

May 6, 1982 

Findings 

The parties entered into four stipulations which apply to 

consideration of both violations. Those are as follows: (1) 

The administrative law judge has jurisdiction to hold a hearing 

and decide the issues. (2) USS and the Gary No. 50 Mine are 

covered by the Act. (3) USS is a large operator and the No. 

50 Mine is a large mine. (4) During the 24 months preceding 

the occurrence of the violations here involved, USS was cited 

for 288 alleged violations and there were 1,086 inspection days. 

The preponderance of the evidence supports the following 

findings of fact: 

1. Earl Barnett, a duly authorized representative of the 

Secretary for the past 14 years and with 34 years of mining 

experience before becoming an inspector, works out of MSHA's 

Princeton, West Virginia, subdistrict office (Tr. 9-10). 

2. Barnett was requested by his supervisor to make a 

haulage survey after occurrence of a fatal accident involving 

a collision of vehicles in the Gary No. 50 Mine (Tr. 29; 98). 

3. Barnett arrived at the No. 50 Mine on May 6, 1982, 

about 7 a.m. and checked some personnel haulage equipment just 

before the mantrips were due to enter the mine at about 8 a.m. 

(Tr. 23; 120). Barnett observed on the floor of one of the 

buses used to transport people into the mine a cylinder of 

oxygen and a cylinder of acetylene (Tr. 23; 110; 124). Barnett 

advised Russell Burge, USS's senior mine inspector, that the 

cylinders would have to be removed from the bus or mantrip and 

Burge instructed some men to remove them from the mantrip. 

The cylinders weigh about 50 or 60 pounds and are about 4-1/2 

to 5 feet in length {Tr. 23; 78; 90; 123). 

147~ 
4. !~specter Barnett wrote Citation No. 1066938 alleging 

a violation of section 75.1106-2(c) because that regulation 

provides that "[l]iquefied and nonliquefied compressed gas cylinders shall not be transported on mantrips." 

5. The bus or mantrip in which the cylinders were found 

was about 18 feet long and consisted of three compartments (Tr. 

35; 149). The two end compartments were covered, while the 

center portion was open (Tr. 46; 69; 123). From 3 to 4 persons 

could ride in either end of the bus, but up to 8 miners could 

ride in the uncovered or center portion of the bus (Tr. 95). 

6. Both Barnett and Floyd Cox, a UMWA safety committeeman 

who accompanied Barnett on his inspection and who has worked as 

a welder for USS for about 6-1/2 years, understood that when 

the two cylinders were taken from the bus or mantrip, they were 

taken to USS's shop (Tr. 23; 75; 91-92; 115). As a matter of 

fact, however, when the cylinders were removed from the bus, 

they were placed in another vehicle exactly like the bus from 

which they were removed except that the vehicle in which they 

were placed had no cover over any part of it because the top 

had been removed to facilitate use of the other vehicle by shop 

personnel (Tr. 123). Since the vehicle in which the two cylinders were placed after removal from the bus had no top to· 

interfere with placement of long objects in the vehicle, the 

two cylinders were placed in a semi-upright position and were 

steadied on the way into the mine by the mechanics who rode in 

the same compartment with the cylinders (Tr. 123; 127). 

7. Burge said that the cylinders were transported into 

the mine in the second vehicle along with personnel because he 

had been advised by an MSHA supervisory inspector from MSHA's 

Pineville Office that oxygen and acetylene cylinders could be 

transported in a jeep or other vehicle, so long as the cylinders 

are in a separate compartment, and provided the persons who ride 

in the vehicle with the cylinders are among the group of persons 

who are going to be using the cylinders (Tr. 122). It was 

Burge's opinion that Barnett's requiring him to remove the cylinders from the bus or mantrip resulted in USS's taking the 

cylinders into the mine in a less safe manner than they would 

have been transported if the cylinders had been taken into the 

mine in the mantrip where the cylinders were first placed (Tr. 

126-127). 

8. Barnett, who was from MSHA's Princeton Office, said 

that he was unaware of the policy expressed by the supervisor 

from the Pineville Off ice and that if he had seen USS taking 

the cylinders into the mine in the manner described by Burge, 

he would have cited USS for another violation (Tr. 63-64). As 

a matter of fact, USS violated the policy which had been expressed by the Pineville supervisor because that policy was 
that the cylinders had to be transported in a separate compartment (Tr. 122), but Burge stated that the two cylinders had 

been taken into the mine with the cylinders standing in a semiupright position and that mechanics were riding in the same 

compartment with the cylinders and steadying them as they went 

into the mine (Tr. 127). 

9. Barnett said that carrying unsecured cylinders-loose 

on the floor of a mantrip exposed the miners to a possible mine 

fire or an explosion. A fire could occur if the cover on the 

valve on an oxygen cylinder should be shaken loose and fall off 

so as to expose the valve which might be knocked off in a collision or derailment so as to allow the highly compressed oxygen 

to be released suddenly, thereby transforming the cylinder into 

a projectile which could fly through the air and injure or kill 

a miner riding in the bus (Tr. 25; 70-71; 76). Although the 

valve on an acetylene cylinder is located in a depression in 

the cylinder so as to require no cover, Barnett said that the 

valve could become loose from vibration and allow highly explosive acetylene to escape into the atmosphere where it could be 

ignited by sparks from the trolley wire (Tr. 24; 73). 

10. Cox supported Barnett's belief that transporting _oxygen 

and acetylene cylinders was hazardous, but he believed that a 

collision in the mine or a derailment could cause the cylinders 

to move about with sufficient force to kill or injure anyone 

riding in the bus with the cylinders (Tr. 97; 112). Cox referred to the fatal accident which occurred on April 5, 1982, 

and said that cylinders like the ones involved in this case 

were found along the rib after that accident. While he did not 

think that the valves on the cylinders involved in the accident 

had become loose enough to allow acetylene or oxygen to escape 

into the air, he still believed that hauling the cylinders in 

the bus with people going in to work was hazardous (Tr. 98-100). 

11. Cox, who is a welder, said that they had tried to 

accommodate with USS's policy that they haul the cylinders in 

the vehicle in which they enter the mine when they comprise the 

crew which is going to be using the cylinders, but he did not 

think that was a safe practice because the cylinders are not 

properly secured when so transported and can injure anyone riding in the vehicle with the cylinders in case of derailment or 

collision (Tr. 96-97; 110). 

12. Burge expressed the opinion that transporting the cylinders in a covered mantrip was not reasonably likely to result 

in a reasonably serious injury. He believed that if the miners 

had transported the cylinders into the mine in the covered bus 

or mantrip, there would have been no likelihood of the cylinders 

causing an injury because the cover or top on the mantrip would 

have protected the cylinders from coming into contact with any 

possible falling of electrical wires and from the possibility 

14'11 
of the roof or rib falling upon the cylinders so as to cause 

them to rupture (Tr. 127; 145). 

13 •. The cylinders which Inspector Barnett had USS remove 

from the mantrip had beeri placed in covers made of plastic 

reinforced with nylon strands (Tr. 124-125). The bags were 

very thin and Barnett expressed the opinion that the bags were 

not substantial enough to comply with the regulations [§75. 

1106-2(b}] requiring that such cylinders be transported in well 

insulated containers and the inspector said that he would have 

issued a citation for another violation as to the kind of 

covers being used if he had not required the cylinders to be 

removed from the bus before the cylinders could be transported 

into the mine in the mantrip (Tr. 73-74). The bags were used 

primarily by USS as carrying devices and neither Barnett, Cox, 

nor Burge believed that the bags provided the tanks with any 

significant impedance from rolling, or would have reduced the 

extent of injury to anyone who might have been hit by a cylinder thrown about in a collision or derailment (Tr. 70; 76; 94; 

99; 124-125). 

Consideration of Parties' Arguments 

USS's counsel stated at the hearing (Tr. 6) that she was 

not contesting the question of whether violations had occurred, 

but only whether the violations were "significant and substantial" as that term has been defined by the Commission in 

National Gypsum, supra. Citation No. 1066938, here under consideration, alleges that a violation of section 75.1106-2(c) 

occurred because oxygen and acetylene cylinders were being 

transported in a mantrip (Finding No. 4, supra). USS's brief 

(p. 2) claims that the self-propelled personnel carrier [§75. 

1403-6], in which the cylinders had first been placed, is not 

actually a "mantrip" as that term has been defined by MSHA's 

Pineville Off ice which has advised USS that a mantrip is one 

or more cars pulled by a locomotive. The Pineville Office has 

further advised USS that it may haul oxygen and acetylene cylinders in its buses so long as they are placed in a separate 

compartment and are accompanied by the personnel who are going 

to use the cylinders in the mine (Finding No. 7, supra). 

USS's brief (p. 2) relies on the Pineville Office's oral 

interpretation of section 75.1106-2(c) to argue that it could 

have transported the cylinders in this instance in the bus in 

which they had been placed if the only persons who had been 

going to accompany the cylinders had been the personnel who 

were going to use them (Br. 2). While USS argues that the 

personnel who would have gone underground in the bus with the 

cylinders had not yet entered the bus, it is a fact that USS's 

witness Burge testified (Tr. 122) that he made a specific inquiry to find out who was going to ride in the bus and he said 

that the people standing around while the inspector examined 

1478 
the bus consisted of "* * * a roof bolter, or mason, or both, 

and there were mechanics there." Later Burge stated that the 

cylinders were removed from the first bus and placed in another 

bus exactly like the one from which the cylinders were removed, 

except that the second bus had no tops over the end compartments, and that the cylinders were taken into the mine in the 

second bus by "[t] he same people that had them in the f·irst bus" 

(Tr. 123). Subsequently, Burge testified that he had specifically inquired of MSHA's Pineville Office whether a mason could 

be among the personnel who ride with cylinders andhe was advised that the mason would not be one of the persons who would 

be using the cylinders and that the mason, therefore, could not 

go into the mine in the same vehicle in which the cylinders 

were to be transported (Tr. 128). 

The only conclusion which can be reached from the abovedescribed contradictory testimony is that either the mason did 

not go into the mine with the personnel who rode with the cylinders in the second bus, or Burge did not know the occupations 

of the persons who intended to go into the mine in the first 

bus. There would have been no reason for Burge to make a specific inquiry as to the occupations of the personnel who were 

standing around the first bus other than to persuade the inspector that USS would not be violating section 75.1106-2(c) by 

hauling the cylinders in the first bus because the persons who 

would be riding in the bus with the cylinders would be the personnel who were going to be using the cylinders. When Burge 

found that one of them was a mason or a roof bolter, or both, 

he knew that if that person intended to ride into the mine with 

the cylinders, USS would be in violation of the Pineville 

Office's interpretation of section 75.1106-2(c). Therefore, 

Burge had the cylinders moved to the second bus and the "same 

personnel" who rode with the cylinders in the second bus necessarily had to exclude the miner whose occupation was roof bolter 

or mason, or both. 

As noted in Finding No. 8, supra, the inspector who wrote 

the Gitation was from MSHA's Princeton Office and had not heard 

of the Pineville Office's interpretation of section 75.1106-2(c) 

and stated that if he had known that USS took the cylinders out 

of one bus and placed them in a second bus, also lacking proper 

restraining devices, he would have cited USS for another violation [§75.1106-2(a) (1)). It should also be noted that USS violated the policy expressed by the Pineville Off ice in any event 

because Burge stated that the cylinders had been placed in the 

second bus in a semi-upright position and that mechanics rode 

in the same compartment with the cylinders so as to steady them 

on the way into the mine. Under the Pineville Office's interpretation, the cylinders were required to be placed in a separate compartment from the personnel who were riding with the 

cylinders (Finding No. 8, supra). 

147t• 
Burge is correct in arguing that the way the cylinders were 

actually taken into the mine was more haz.ardous than the way 

they would have been taken into the mine if the inspector had 

not required the cylinders to be removed from the first bus. At 

least, if they had been taken into the mine in the first bus, 

the cylinders would have be~n transported in a compartment with 

a top over it. While Burge implies that no one would have ridden 

in the same compartment with the cylinders if Barnett had not 

required the cylinders to be removed, there is no certainty that 

miners would not have ridden in the first bus in the same compartment with the cylinders because Barnett said that only three 

miners were in the bus at the time he examined it and that other 

miners standing around the bus had not yet been loaded into the 

bus to make the trip underground (Tr. 24; 68; 72). 

There is another flaw about USS's claim that it could lawfully transport the cylinders in the mine under the Pineville 

Office's oral interpretation of section 75.1106-2(c). That flaw 

comes from the fact that there is nothing to prevent MSHA from 

holding that USS's bus is a self-propelled personnel carrier if 

it is not a mantrip under the Pineville Office's definition of a 

mantrip being mine cars pulled by a locomotive. As to selfpropelled equipment, section 75.1106-2(a) provides as follows: 

(a) Liquefied and nonliquefied compressed gas 

cylinders transported into or through an underground 

coal mine shall be: 

(1) Placed securely in devices designed to hold 

the cylinder in place during transit on self-propelled 

equipment or belt conveyors; 

Barnett could just as easily have cited USS for a violation of 

section 75.1106-2(a) (1) as he did for a violation of section 

75.1106-2(c) because the latter section requires that the cylinders not be transported at all on mantrips, whereas USS can only 

transport such cylinders on its self-propelled personnel carrier 

if they are "* * * [p]laced securely in devices designed to hold 

the cylinder in place during transit". Obviously, propping the 

cylinders in a semi-upright position, steadied by mechanics, is 

not in compliance with section 75.1106-2(a) (1). 

USS's brief (p. 2) asserts that the cylinders "* * * present no hazard if properly secured in correct containers (73)", 

but USS cites Barnett's testimony in support of that assertion 

and in that testimony, transcript pages 73 and 74, Barnett 

states that USS failed to secure the cylinders and that the 

plastic bags in which USS placed the cylinders were not in compliance with the regulations (Finding No. 13, supra). 

USS's brief (p. 5) states that "[i]n order for oxygen and 

acetylene cylinders to become a hazard during transportation 

into the mine, they have to receive a blow significant enough 

1~80 
to break the gauges on the ends (24, 25)". While it is true 

that Barnett emphasized the worst possible hazards which can be 

expected to occur from transporting unsecured cylinders into 

the mine, such as a valve being knocked off an oxygen cylinder 

or gas leaking from an acetylene cylinder so as to be ignited 

by a spark from a trolley wire (Finding No. 9, supra), Cox 

testified that the unsecured cylinders could inJure a person 

just by being thrown against him in a collision or derailment 

(Finding No. 10, supra). Although Cox agreed that the cylinders 

which were thrown along the rib after a head-on collision occurring on April 5, 1982, did not explode or leak, the fact remains that they left the vehicle in which they had been placed 

and a 50- or 60-pound cylinder flying through the air in a collision could certainly injure or kill a person who may happen 

to be in the cylinder's trajectory. 

One must keep in mind that the cylinders in this case were 

first merely laid on the floor of a bus. Then they were removed 

from that bus and placed in another bus in a semi-upright position. They were actually transported into the mine with mechanics riding in the same uncovered compartment in which the 

cylinders had been placed. The seats in the buses used by USS 

are not vertical like those in an automobile, but are built in 

a reclining position so that the floor of the bus is not a.flat 

place like that in an automobile (Tr. 111-112). In a collision 

or derailment, there is no seat to protect the person riding 

with the cylinders from the movement of the heavy cylinders. 

When miners are riding beside the cylinders, they are exposed 

to almost certain injury of some kind in case of an accident 

or even a sudden stopping.or starting of the bus. 

USS's brief (p. 5) also argues that Barnett could not explain why cylinders hauled into a mine are going to leak as 

compared with identical cylinders which are hauled daily at 

construction sites without rupturing. Contrary to USS's claim, 

Barnett was not bereft of an explanation for the alleged difference in hazards between haulage of cylinders into a mine and 

haulage of cylinders at a construction site because he stated 

that cylinders transported at construction sites are "properly 

secured" (Tr. 70). MSHA's reply brief (p. 2) cites 29 C.F.R. 

§ 1926.350(a) in support of the inspector's claim that cylinders 

used at construction sites have to be "properly secured". ·That 

section provides for cylinders transported in powered vehicles 

at construction sites to be secured in a vertical position. Of 

course, as previously noted, section 75.1106-2(a) (1) requires 

USS to place the cylinders "* * * in devices designed to hold 

the cylinder in place during transit on self-propelled equipment". Therefore, OSHA's and MSHA's requirements for haulage 

of cylinders are consistent. 

The final defense in USS's brief as to its method of transporting cylinders is as follows (p. 6): 

1481 
The unrebutted testimony -in this case is that the 

MSHA district has advised the mine that they.can transport these cylinders into the mine if the only people 

on the vehicle are people who will use the tanks underground (122). If MSHA honestly believes transportation 

of cylinders on the track mounted vehicles is reasonably likely to result in a reasonably serious injury, 

it is incomprehensible that it is acceptable if mechanics are injured but not continuous miner operators. 

Practical experience has shown that a collision of 

track mounted vehicles is not sufficient to injure the 

valves on cylinders (98), so there is no reason to believe that the vibration of a portal bus on the track 

will damage the valves. 

I have already pointed out the fallacies inherent in the 

above allegations, but I shall briefly summarize them at this 

point. First,.the Pineville Office's instructions as to how 

USS could transport the cylinders was not followed in this 

case because that Off ice advised USS that the cylinders could 

be transported in a vehicle if they were placed in a separate 

compartment from the mechanics or welders who were going to be 

using the cylinders, whereas Burge stated that mechanics sat 

in the compartment beside the cylinders and steadied them on 

the way into the mine (Finding No. 8, supra). 

Second, USS knows that it is using a self-propelled vehicle 

and both the Pineville Office and USS know, or should know, 

that section 75.1106-2(a) (1) specifically provides that the 

cylinders shall be "[p)laced securely in devices designed to 

hold the cylinder in place during transit on self-propelled 

equipment". Third, Cox, one of USS's own welders who has been 

persuaded to haul the cylinders in accordance with the Pineville Office's instructions, testified at the hearing that he 

believed that taking the cylinders into the mine in accordance 

with the Pineville instructions is hazardous simply because the 

cylinders may be thrown against a person in case of a collision 

or derailment. Cox certainly did not believe the valves had to 

be knocked off the cylinders before they became a hazard (Finding No. 10, supra). 

USS also expresses its inability to comprehend why the 

Pineville Office would give it instructions as to transporting 

cylinders which expose mechanics to serious injury if the inspectors from the Princeton Off ice believe that transporting 

cylinders in a mantrip would expose a continuous-mining machine 

operator to serious injury. Although it is obviously hazardous 

to transport the unsecured cylinders in any vehicle, the Pineville Office's proviso as to the occupational speciality of the 

personnel who can accompany the cylinders relates to the fact 

that welders and mechanics who are actually trained in the use 

of the cylinders will be less likely to be injured in handling 

1 ,. n <} 1.ibr-
and transporting them than continuous-mining machine operators 

who normally do not receive training in the handling and use of 

oxygen and acetylene cylinders. 

Insofar as USS appears to defend its placement of the cylinders on the floor of the bus on the Pineville Office's interpretation of section 75.1106-2(c), the Commission has held in 

Old Ben Coal Co., 2 FMSHRC 2806 (1980)', and in King Knob Coal Co., 

Inc., 3 FMSHRC 1417 (1981), that an inspector is not bound by 

the provisions of MSHA's inspection manual because the manual 

is not officially promulgated and does not prescribe rules which 

are binding on an agency. In the King Knob case, however, the 

Commission said that there was some merit to King Knob's claim 

that it had relied upon the provisions set forth in the manual. 

Inasmuch as the manual fails to state that it is.not a source 

of law binding upon MSHA or the Commission, the Commission said 

that MSHA's confusion in application of the law in that instance 

might be taken into consideration in evaluating the criterion of 

negligence in determining a civil penalty under section llO(i) 

of the Act. 

In this instance, of course, the Pineville Office's interpretation was given orally by a supervisor in that office. At 

the hearing I granted the request of MSHA's counsel that the 

record be subject for 72 hours to receipt of additional testimony if an inquiry he was going to make should show an error in 

USS's representation of the Pineville Office's interpretation 

of section 75.1106-2(c) (Tr. 185). Since no request was ever 

made for receipt of further testimony, I assume that USS made a 

correct statement as to the interpretation given by the Pineville Office. As pointed out above, since the Commission has 

held that provisions in MSHA's manual do not have the force of 

binding law, it follows that oral instructions from a single 

MSHA office do not have sufficient authority to overcome the 

clear meaning of the regulations themselves. 

For the reasons given above, I find that USS did violate 

section 75.1106-2(c) when it placed the unsecured cylinders in 

the mantrip or bus for the purpose of transporting them into 

the mine. 

The following definition of a "significant and substantial" 

violation was given by the Commission in its National Gypsum 

decision (at page 825): 

* * * we hold that a violation is of such a nature 

as could significantly and substantially contribute 

to the cause and effect of a mine safety or health 

hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in 

an injury or illness of a reasonably serious nature. 

1483 
As Finding Nos. 9 and 10, supra, indicate, there was a 

reasonable likelihood that the cylinders could be tossed about 

in a collision or derailment and cause a serious injury even 

if the valves did not get knocked off or become loose so as to 

expose the miners to being hit by a jet-propelled oxygen cylinder or to being injured by an explosion of leaking acetylene. 

Barnett said that the jeep in which he was riding was derailed 

on the day he wrote the citations involved in this proceeding 

{Tr. 72). The No. 50 Mine has 46 miles of track in it {Tr. 71). 

It is reasonable to expect that collisions and derailments will 

occur on a transportation system as extensive as the one here 

under consideration. Cox testified that '.'[a]ny time I go into 

the portal of that mines I'm aware of the fact that there could 

be a bad accident in the jeep that I'm irt" {Tr. 98). The preponderance of the evidence clearly supports a finding that it 

was reasonably likely that hauling unsecured cylinders in the 

mantrip or bus could contribute to the cause and effect of a 

mine safety hazard which could result in an injury of a reasonably serious nature. Therefore, the inspector who wrote Citation No. 1066938 properly considered the violation of section 

75.1106-2(c) to be a "significant and substantial" violation. 

Assessment of Penalty 

Having found above that a violation of section 75.1106-2 

{c) occurred, it is necessary that a civil penalty be assessed 

under the six criteria listed in section llO(i) of the Act. 

As to the criterion of the size of the operator's business, 

the parties have stipulated that USS is a large operator and 

that the No. 50 Mine is a large mine (Tr. 4). Therefore, any 

penalty assessed should be in an upper range of magnitude to 

the extent it is determined under the criterion of the size of 

the operator's business. 

As to the criterion of whether the payment of penalties 

will have an adverse effect on USS's ability to continue in 

business, the parties made no stipulation and USS presented no 

financial evidence. In Sellersburg Stone Co., 5 FMSHRC 287, 

294 (1983), the Commission indicated agreement with the holdings of the former Board of Mine Operations Appeals in Buffalo 

Mining Co., 2 IBMA 226 (1973), and Associated Drilling, Inc., 

3 IBMA 164 (1974), to the effect that if an operator fails to 

produce any financial evidence, a judge may presume that payment of penalties will not cause the operator to discontinue 

in business. In the absence of any facts to support a contrary conclusion, I find that payment of the penalties assessed 

in this proceeding will not cause USS to discontinue in business. 

The parties stipulated that during the 24-month period 

preceding the citing of the violations involved in this pro~ 

ceeding, USS had been assessed for 288 alleged violations in 

a total of 1,086 inspection days. Those figures support a 

finding that USS has a favorable or moderate history of previous 

1484 
violations. Therefore, only a very small part of the penalty 

should be attributed to the criterion of respondent's history 

of previous violations. 

Barnett testified that USS demonstrated a good faith 

effort to achieve rapid compliance after he cited the violation by abating the violation within the time given in his 

citation (Tr. 20; Exh. 3). It has always been my practice to 

lower any penalty which I would otherwise assess under the 

other five criteria if I find that an operator has made an unusual effort to achieve rapid compliance. If the operator 

abates the violation within the time allowed by the inspector, 

I neither reduce nor raise the penalty under the criterion of 

good-faith abatement. Of course, if an operator refuses to 

abate a violation and has an insufficient reason for failing 

to abate within the time given, the penalty otherwise assessable under the other five criteria is raised accordingly. In 

this instance, the inspector wrote the citation at 8:05 a.m. 

and gave USS until 8:15 a.m., or 10 minutes, within which to 

abate the violation (Exh. 3). Inasmuch as USS only had to remove the cylinders from the bus or mantrip in order to abate 

the violation, I find that the inspector provided a sufficient 

time for abatement and that the penalty should neither be 

raised nor lowered under the criterion of good-faith abatement. 

The fifth criterion to be considered is the degree of 

negligence which should be assigned to the occurrence of the 

-violation. As I indicated above, the Commission held in the 

King Knob case that if MSHA's enforcement of a given standard 

has caused confusion so that the operator violated the standard 

in the belief that its method of· operation was in compliance 

with MSHA's interpretation of the standard, the inconsistent 

application of the standard should be taken into consideration 

in evaluating the criterion of negligence. As has been shown 

in the preceding portion of this decision, the Pineville Office 

had interpreted section 75.1106-2(c) in a fashion which caused 

USS to believe that the cylinders could be transported in a 

self-propelled personnel carrier so long as the cylinders were 

placed in a separate compartment and provided the miners in 

the vehicle carrying the cylinders were a part of the crew of 

workers who would be using the cylinders. 

As I have also indicated above, both the Pineville Office 

and USS should have been aware of the provisions of section 

75.1106-2(a) (1) to the effect that cylinders can be transported 

in self-propelled vehicles only if "[p]laced securely in devices designed to hold the cylinder in place during transit", 

but the fact remains that the Pineville Off ice did mislead USS 

in giving an interpretation of section 75.1106-2(c) with which 

the MSHA inspector who wrote the citation did not agree. On 

the other hand, USS did not actually comply with the Pineville 

Office's interpretation of section 75.1106-2(c) in that USS 

failed to place the cylinders in a separate compartment (Finding Nos; 7 and 8, supra). 

1485 
In su·ch circumstances, I believe that the violation was 

associated with at least ordinary negligence because USS did 

not justify its actions in light of section 75.1106-2(a) (1) 

which clearly does not allow USS to transport cylinders in 

self-propelled ~ehicles without.placing them in devices des'igned to hold them in place during transit. The former Board 

of Mine Operations Appeals held in Freeman Coal .Mining Co., 3 

IBMA 434, 442 (1974), that an operator is conclusively presumed 

to know what the mandatory health and safety standards are. 

Therefore, before I can find that USS was not negligent at all 

in violating section 75.1106-2(c), I would need some explanation from USS's witness as to why he did not inquire of the 

Pineville Office whether transporting unsecured cylinders in a 

self-propelled vehicle would be in violation of section 75.1106-

2 (a) (1), assuming that the Pineville Office did not know the 

difference between a self-propelled personnel carrier and a mantrip which the Pineville Office defined as a locomotive pulling 

cars designed to transport people, as opposed to transporting 

coal or supplies. 

The final criterion which requires consideration is the 

gravity of the violation. In this instance, the cylinders were 

removed from the bus before it traveled underground, but the 

only reason the cylinders were removed before being transported 

was that the inspector observed them lying loosely on the floor 

of the bus and asked that they be removed. In National Gypsum, 

supra, the Commission noted that the hazard associated with the 

violation should be analyzed in terms of whether the violation 

could cause a danger to health or safety. As Finding Nos. 9 

and 10, supra, show, transporting the unsecured cylinders in 

the bus exposed the miners to serious injury or death if the 

event which section 75.1106-2(c) is designed to prevent had 

actually occurred. 

In view of the fact that a large operator is involved, 

that payment of penalties will not cause it to discontinue in 

business, that the operator has a moderate history of previous 

violations, that the operator showed a good-faith effort to 

achieve rapid compliance, that the violation was associated 

with ordinary negligence, and that the violation was serious, I 

find that a penalty of $250 is appropriate. It should be noted 

that both MSHA's initial and reply brief suggested that a penalty of $170 be imposed because that was the amount proposed by 

MSHA in its petition for assessment of civil penalty. Actually, 

MSHA proposed a penalty of only $119 because the amount of $170 

was reduced by 30 percent because USS had abated the violation 

within the time fixed in Citation No. 1066938. The Commission 

has held many times that penalty cases before a judge are de 

novo and that the Commission and its judges are not bound by 

the penalty formula, set forth in Part 100 of Title 30 of the 

Code of Federal Regulations, and used by MSHA in proposing penalties (Rushton Mining Co., 1 FMSHRC 794 (1979); Shamrock Coal 

148b 
Co., 1 FMSHRC 799 (1979); Kaiser Steel Corp., 1 FMSHRC 984 

(T979); U.S. Steel Corp., 1 FMSHRC 1306 (1979); Pittsburgh Coal 

Co., 1 FMSHRC 1468 (1979); Peabody Coal Co., 1 FMSHRC 1494 

TI979); Co-Op Mining Co., 2 FMSHRC 784 (1980); and Sellersburg 

Stone Co., 5 FMSHRC 287 (1983)). 

In its brief (p. 6), USS argues that a judge must assess 

the $20 penalty provided for in 30 C.F.R. § 100.4 if he finds 

that a violation has been improperly evaluated as "significant 

and substantial" by an inspector. USS acknowledges, however, 

that if MSHA derives its proposed penalty under section 100.3, 

as it did in this instance, and the judge agrees with MSHA's 

finding of "significant and substantial", the judge is not 

bound by the provisions of section 100.3. Therefore, it is unnecessary in this proceeding for me to discuss USS's contention 

that I am required to assess a penalty of only $20 if I find 

that a given violation is not "significant and substantial". 

Findings of Fact and Decision as to Citation No. 1066940 dated 

May 6, 1982 

The parties' stipulations which have been summarized at the 

beginning of the findings of fact for the previous citation. are, 

of course, also applicable to the issues raised by the parties 

with respect to Citation No. 1066940. The witnesses who testified with respect to both alleged violations were identical, 

viz., MSHA Inspector Barnett, UMWA Safety Committeeman Cox, and 

USS's Senior Safety Inspector Burge. Their full names and mining experience have been given above with respect to the previous 

violation and will not be repeated in this portion of my decision. 

The preponderance of the evidence supports the following 

findings of fact (numbering of paragraphs is continued from 

previous findings, supra). 

14. Inspector Barnett, while engaged in a haulage survey 

in USS's No. 50 Mine on May 6, 1982, traveled to the B Panel 

Section. He was accompanied by Cox and Burge. When the jeep 

in which they were riding reached B Panel, the jeep was brought 

to a stop behind the portal bus or mantrip which had already 

delivered miners to the working section. The mantrip was sitting about 40 feet outby the end of the track (Tr. 12; 41; 128; 

175). i.\lhen Barnett got out of the jeep, he observed that the 

trolley wire was unguarded except for the first 10 or 12 feet 

of the wire at the end of the track (Tr. 20; 47; 128; 148). 

Therefore, Barnett wrote Citation No. 1066940 alleging a violation of section 75.1003 because "[t]he trolley wire at the end 

of the supply track in the B panel section where men and supplies are unloaded was not adequately guarded" (Tr. 11; Exh. 1). 

15. Section 75.10p3, in pertinent part, provides as 

follows: 
* * * Trolley wires and trolley feeder wires shall be 

guarded adequately: 

(a) At all points where men are required to 

work or pass regularly under the wires; 

(b) On both sides of all doors and stoppings; 

and 

(c) At man-trip stations. 

1.6. Since neither Barnett nor the two men traveling with 

him had seen the miners on the working section get out of the 

portal bus or mantrip, none of the witnesses knew for certain 

where the bus had been sitting at the time the men exited the 

bus (Tr. 81; 150; 158). It was assumed that the men got off 

the mantrip at the end of the track because that would have been 

the safest place for unloading, inasmuch as a guard for the 

trolley wire had been provided for 10 to 12 feet at the end of 

the track (Tr. 129). The bus or mantrip was 18 feet long (Tr. 

35; 149). The bus had a covered compartment at each end, but 

the central compartment in the middle of the bus was open or 

topless (Tr. 46; 155). Each covered end compartment has room 

for three or four persons and the middle or open compartment 

will accommodate eight people (Tr. 95; 106). The open part of 

the bus was exposed to the unguarded trolley wire for part of 

its length and was exposed to the guarded part of the wire for 

the remainder of its length (Tr. 155). The jeep in which 

Barnett rode to the B Panel had no top at all and the persons 

who got out of the jeep at B Panel were exposed to the unguarded, 

energized trolley wire when they left the jeep (Tr. 55-56). 

17. Barnett considered the violation of section 75.1003 

to be a "significant and substantial" violation because he believed that it was reasonably likely that an accident would 

occur which could reasonably be expected to cause an injury of 

a reasonably serious nature (Tr. 18). Barnett based the aforesaid conclusion on the fact that the mantrip had been unloaded 

where a portion of unguarded trolley wire existed, as discussed 

above, and because he saw supplies along both sides of the 

track. In such circumstances, he concluded that the miners who 

unloaded the supplies did so under the unguarded, 250-volt, 

energized trolley wire (Tr. 16-17). Barnett also believed that 

the miners from the working section would at some time during 

each working shift come to the area with the unguarded wire for 

the purpose of obtaining supplies, such as timbers, rock dust, 

hydraulic oil, roof bolts, and header boards (Tr. 13-14; 36). 

In Barnett's opinion, the miners would be beneath unguarded, 

energized trolley wire when obtaining such supplies (Tr. 45; 54; 

56; 84). 

18. Burge gave several reasons for his belief that failure 

to guard the trolley wire was improperly considered by Barnett 

to be a "significant and substantial" violation. He said that 

148d 
there was a cut-off switch for turning off power to the trolley 

wire without affecting the power supply used to run coal-producing 

equipment (Tr. 132). Burge said that the cut-off switch was 

located only 160 feet outby the end of the track and that the 

miners would cut off all power to the trolley wire at any time 

they found it necessary t~ obtain supplies which were located 

close to the trolley wire (Tr. 133; 143-144). 

19. Burge testified that he had never heard of any miner 

who had been injured by contacting an unguarded trolley wire in 

the No. 50 Mine (Tr. 138). He said he himself had come ~n contact with an energized trolley wire on one occasion, but the 

wire hit his miner's safety hat and caused no problem. He also 

stated that the wire he touched was guarded and that he felt a 

person was more likely to contact a guarded wire than an unguarded wire because the guarded wires are harder to see than 

the unguarded wires (Tr. 142; 150). 

20. Burge additionally observed that the guards for trolley wires are open at the bottom. In this instance, the 10 to 

12 feet of guarding consisted of yellow neoprene (Tr. 140). 

Burge maintained that the neoprene hangs down on each side of 

the wire and will protect a person walking along beside the 

track from coming into contact with the wire, but the opening 

directly under the guard has to allow for passage of the trolley pole and provides no protection whatever to anyone coming 

up directly under the guard (Tr. 141-142). 

21. Burge described the exact procedure which is used to 

cut off power to the trolley wire when it is necessary to obtain supplies at any place along the track where supplies are 

close to the trolley wire. He said that the section foreman 

will come to the supply area and will direct a miner to turn off 

the power at the cut-off switch located outby the end of the 

track. He said that the miner will take the closest vehicle and 

ride to the switch by going into the track entry at the point 

where the track ends (Exh. A). When the miner reaches the switch, 

he will turn off the power to the trolley wire and the lights on 

his vehicle will go out and he will call out that the power is 

off. He will stay at the switch to be sure the trolley wire is 

not reenergized while supplies are being loaded. Then the foreman will tell the scoop operator to get the supplies from along 

the track. After the supplies have been obtained, the foreman 

will tell the miner to reenergize the trolley wire and he will 

turn the power on and the lights on his vehicle will come back 

on and he will drive his vehicle back to the end of the track 

(Tr. 164). 

22. The hearing in this proceeding was held on May 10, 

1983, but both citations under consideration in this case were 

written on May 6, 1982. Therefore, the hearing was held over 

a year after the citations were written. Barnett. said that this 

148U 
was the first time he had ever inspected the No. 50 Mine and 

that his memory of the location of the various types of supplies 

was not very good (Tr. 29; 34; 173). He was, nevertheless, positive that he saw timbers, rock dust, roof bolts, barrels of oil, 

grease, and header boards along the track and he insisted that 

some of them were on the "tight" side, or left side, of the 

track where the trolley wire was closer to the ribs than the 

trolley wire was on the "wide" side, or right side, of the track 

where the wire was farthest removed from the ribs (Tr. 15-16; 

Exh. 2) • Burge was certain that he had observed hydraulic oil 

in barrels at a point marked with the word "oil" on Exhibit A. 

Burge marked four other places with the letter "B" on Exhibit A 

to show where he saw supplies (Tr. 146). Burge also marked a 

double "X" at the end of the track to show where he had observed 

six or eight timbers, two bundles of wedges, and four or five 

cap pieces (Tr. 135; 147). 

23. While Barnett conceded that he was not certain as to 

which side of the tracks he saw various types of supplies (Tr. 

34-35; 53), he was certain that some of them were on the "tight" 

side as well as the "wide" side (Tr. 16; 46; 82; 168; 172-174). 

While Burge appeared to be certain about all the physical evidence in existence at the time the unguarded trolley wire was 

cited, he did vary his estimates as to the distance that some 

supplies were from the trolley wire. For example, he first 

stated that the hydraulic oil was from 8 to 10 feet from the 

trolley wire (Tr. 136) and later estimated the distance from the 

wire to be 17 feet (Tr. 157). Additionally, Burge first said 

that there were six or eight timbers, two bundles of wedges, and 

four or five cap pieces at a point marked with a double "X" on 

Exhibit A (Tr. 135) and later stated that he saw eight timbers 

and six or eight cap pieces at that same location (Tr. 147). 

Although a considerable amount of cross-examination was used in 

trying to discredit Barnett for his lack of memory as to which 

kinds of supplies were on the "tight", as opposed to "wide", 

side of the track, Barnett's inability to recall that precise 

information is not of great importance because Burge testified 

during direct examination that some supplies were within 3 or 4 

feet of the trolley wire and that is close enough to make the 

loading of supplies a hazardous type of work (Tr. 134). 

24. Another aspect of the testimony which conflicted was 

that Burge stated that there was no stopping at a point one 

break outby the end of the track as shown by the letter "A" on 

Exhibit A (Tr. 133; 182). On the other hand, both Barnett and 

Cox said that there were permanent stoppings between each and 

every pillar of coal extending along each side of the track entry 

at the place where the unguarded trolley wire was observed (Tr. 

39; 175). Here, again, the variances in the witnesses' recollection as to the existence or nonexistence of the stopping makes 

no essential difference in determining whether the violation was 

"significant and substantial" because Burge agreed with Barnett 

14BO 
that it would be reasonable to expect the miners on the working 

section to pick up some of the supplies by having the scoop operator come into the track entry from the end of the track rather 

than having the scoop operator come into the track entry through 

the disputed opening between two pillars (Tr. 133; 144; 161). 

25. The unguarded trolley wire was about 5 feet above the 

mine floor. The beds of the rail cars from which supplies were 

unloaded were 2-1/2 to 3 feet above the mine floor (Tr. 15; 84). 

Therefore, when the miners were unloading supplies from the rail 

cars, their operating space between the beds of the cars and the 

trolley wire was only about 2-1/2 feet. The floor of the mantrip 

or jeep in which personnel ride is closer to the mine floor than 

the beds of the supply cars, so Barnett estimated that miners 

getting out of a mantrip or jeep have a space of about 4 feet in 

which to move when getting out of the cars (Tr. 84). They would 

be in a stooped position when getting out of the cars (Tr. 62). 

If they should become unbalanced, the normal reaction for a person off balance is to throw his hands up in the air to try to 

regain his equilibrium. Consequently, a miner could easily get 

his hand against the trolley wire if he should lose his balance 

while getting out of a jeep or mantrip (Tr. 63). Even Burge conceded that the miner who moved the bus or mantrip out of the supply area to facilitate the loading or unloading of supplies would 

be entering or leaving the bus while the unguarded trolley wire 

was still energized (Tr. 149). 

26. Another time when a miner could be exposed to an unguarded, energized trolley wire would be when he goes to the 

cut-off switch to deenergize the trolley wire before supplies 

are obtained along the unguarded trolley wire. The basis for 

the aforesaid observation is that the cut-off switch is on the 

"tight" side of the track entry where there is little space between the wire and the ribs (Exh. A). A miner taking a vehicle, 

as described in Finding No. 21, supra, to the cut~off switch 

would have to travel under the energized wire from the end of 

the track to the switch, or travel down the opposite "wide" side 

of the track and then cross the track beneath the unguarded, 

energized trolley wire, in orqer to get to the switch. He would 

have the same exposure to the energized trolley wire while 

traveling back to the end of the track after reenergizing the 

trolley wire. Moreover, as Burge recognized (Tr. 161), the 

scoop or other vehicle driven to the cut-off switch could touch 

the energized trolley wire so that its frame would be energized. 

As long as the miner driving the vehicle remained in the vehicle, 

he would be insulated from the shock hazard by the rubber tires 

on the vehicle (Tr. 161), but if he should step out of the vehicle to turn off the switch while the frame of the vehicle was 

still energized, he could be injured or electrocuted when his 

feet touched the mine floor if any part of his body happened to 

remain in contact with the scoop's energized frame. Even if he 

should stay in the energized vehicle, he could be shocked when 

his hand touched the grounded frame of the cut-off switch to deenergize .the trolley wire. · 

1491 
Consideration of Parties' Arguments 

USS contends that its failure to guard the trolley wire 

did not result in a.violation which can be considered to be 

"significant and sμbstantial" as that term has beeri defined by 

the Commission in the National Gypsum case, supra. Inspector 

Barnett based his belief that the violation was "significant and 

substantial" on his claim that people were exposed to the unguarded, energized wire when they got out of the portal bus or 

mantrip or any other vehicle, that they were exposed to the wire 

when they unloaded supplies from the rail cars, and that miners 

were exposed to the wire when they went to the area of the unguarded wire to obtain supplies which had been unloaded in the 

vicinity of the track (Finding Nos. 16 and 17, supra). 

USS counters Barnett's bases for concluding that the violation was "significant and substantial" by arguing that the guard 

is open at the bottom and therefore does not protect anyone, 

such as a motorman, who might touch the wire as a result of ris-

· ing up directly under the wire (Finding No. 20, supra). USS also 

contends that only 1 percent of the length of trolley wires is 

guarded and that, in the vast majority of instances, miners ride 

under unguarded wires all the time and get out of vehicles under 

unguarded wires when they work along a track (Br., p. 5). 

Although Barnett agreed that the only fatality he could recall resulting from a miner's coming in contact with a trolley 

wire was "last year" when a motorman contacted a wire and was 

killed, he still believed that a guard protects a motorman when 

it is present (Tr. 43). While Barnett also agreed that the guard 

was not designed to protect the motorman, since he travels under 

an unguarded wire most of the time, he still believed that the 

guard protected the motorman for the 1 percent of the time when 

the guard is present (Tr. 43). Of course, as Barnett emphasized, 

the citation was written for USS's failure to guard the wire 

"where men and supplies are unloaded" (Exh. 1). Section 75.1003 

does not require guarding for 99 percent of USS's track, so the 

violation consisted of USS's failure to guard part of the 1 percent of trolley wire which is required to be protected. 

For the foregoing reasons, USS' s claim that the guard i.s 

not designed to protect motormen has little relevance in showing 

that Barnett improperly classified the violation as being "significant and substantial". 

USS stakes its contention that the unguarded wire was not 

a "significant and substantial" violation on three other claims 

which are not supported by the preponderance of the evidence. 

First, USS contends that the bus in which miners traveled to 

the working section was covered at each end so that the miners 

riding in each end were protected from the unguarded wire when 

leaving the bus. No one challenges the fact that the miners 
riding in each end of the bus would have been protected, but it 

is a fact that the center portion of the bus is open and up to 

8 miners may ride in the center or open portion of the bus (Finding Nos. 5 and 16, supra). Additionally, USS claims that, in 

this instance, since the first 10 or 12 feet of the wire was 

guarded, the open portion of the bus was entirely under the portion of the wire which was guarded (Br., p. 2). USS cites Barnett's testimony at transcript page 36 in support of that assertion, but USS's own witness, Burge, specifically stated that 

part of the open section of the bus was under unguarded wire (Tr. 

155). Therefore, USS's claim that no one was exposed to a portion of unguarded wire when leaving the bus on the day when the 

citation was written is not supported by the preponderance of 

the evidence (Finding No. 16, supra). 

Second, USS argues that the trolley wire is always deenergized before supplies are unloaded under the wire and that 

Barnett did not take into consideration USS's policy of deenergizing the wire when he made his determination that miners had 

unloaded supplies under the unguarded, energized wire (Br., p. 3). 

Assuming that the miners always deenergize the trolley wire before unloading supplies brought from outside the mine and before 

obtaining supplies for use on the working section, the miners 

are still exposed at times to traveling on a regular basis under 

the unguarded, energized wire. The cut-off switch is on the 

"tight" side of the unloading area (Finding No. 23, supra; Exh. 

A). Therefore, miners bringing in supplies on a rail car would 

have to get off the car under the unguarded, energized wire to 

turn off the power and, in doing so, would come within 2-1/2 

feet of the wire when getting off the car, and would have to 

repeat that process in order to turn the power back on after 

unloading the supplies (Finding No. 25, supra). 

Any time the miners move the portal bus to facilitate the 

loading or unloading of supplies, they have to get in and out of 

the bus under the unguarded, energized wire for the purpose of 

moving the bus (Tr. 149). If the miners want to obtain supplies 

located along the track at a point where entry to the track area 

would have to be from the end of the track, the miner who is 

ordered to cut off the power and turn the power back on would be 

exposed to passing under the wire or getting close to it (Finding Nos. 21 and 26, supra). Finally, any time people come to 

the working section, as Barnett, Cox, and Burge did on May 6, 

1982, they are exposed to the unguarded, energized wire when 

they get out of and return to the jeep in which they have traveled to the section (Finding No. 16, supra). 

Another argument USS makes in support of its claim that the 

violation was not "significant and substantial" is that in order 

for anyone getting out of a mantrip to come in contact with a 

trolley wire, he would have to fall backward and up before he 

could contact the wire (Br., p. 1). That a person might fall 

1493 
back and up and thereby come into contact with the unguarded, 

energized trolley wire is an event which is reasonably likely 

to occur as I have pointed out in Finding No. 25., supra. 

USS's claim (Br., p. 5) that its miners would have to forget all of their training in order for an unguarded, energized 

trolley wire to constitute a "significant and substantial" violation is rejected as not supported by the preponderance of the 

evidence. Finding Nos. 14, 16-17, and 25-26, supra, clearly 

show that the _violation of section 75.1003 alleged in Citation 

No. 1066940 occurred and that it was reasonably likely that the 

violation could have resulted in an injury of a reasonably serious nature. I find that the inspector properly considered the 

violation to be "significant and substantial" as that term has 

been defined by the Commission in the National Gypsum case, 

supra. 

Assessment of Penalty 

Findings applicable to the instant violation have already 

been made with respect to three of the six criteria which are 

required to be used in assessing civil penalties. Specifically, 

it has already been shown above in assessing a penalty for the 

previous violation of section 75.1106-2(c) that_ USS is a large 

operator, that the Gary No. 50 Mine is a large mine, that payment of penalties will not cause USS to discontinue in business, 

and that USS has a favorable or moderate history of previous 

violations. 

As to the fourth criterion of whether USS demonstrated a 

good-faith effort to achieve compliance after the violation of 

section 75.1003 was cited, Barnett testified that the violation 

was abated within the time allowed (Tr. 20) and the termination 

sheet also states that the violation was abated within the time 

allowed (Exh. 1). As I explained above, it has been my practice 

neither to increase nor decrease a penalty otherwise assessable 

under the other five criteria if I find that an operator has 

abated a violation within the time allowed by the inspector. 

As to the fifth criterion of negligence, there is no allegation in this instance, as there was with respect to the previous violation of section 75.1106-2(c), that MSHA's enforcement 

of section 75.1003 has been confusing because of conflicting 

interpretations of the same standard. The reason that the trolley wire had not been guarded for the distance required to protect the miners getting into and out of mantrips and other vehicles and while working in the supply area was that the track 

had been pulled back from the working face. The only guarding 

consisted of 10 or 12 feet which still existed following the 

action of removing some of the track closest to the faces of the 

working section which was engaged in retreat mining at the time 

1484 

-------
the citation· was written (Tr. 34; 133). The fact that 10 or 12 

feet of the guarding still remained should have been a reminder 

to the person in charge of shortening the track that the guarding needed to be extended for a considerable distance outby the 

place where it then existed. Failure to extend the guarding in 

such circumstances was the result of a high degree of negligence. 

There has already been an extensive discussion of the sixth 

criterion of gravity. The preponderance of the evidence clearly 

shows that failure to guard a 250-volt trolley wire which is 

only 2-1/2 feet above a supply car and 4 feet above personnel 

carriers is a serious violation because there is always a chance 

that the miners' protective hats and shoes may not be an adequate 

shield against shock or electrocution if they happen to touch the 

energized trolley wire (Tr. 150). After all, even a motorman, 

under USS's theory, is protected by his hat and shoes from a 

shock hazard, yet a motorman was killed by coming into contact 

with a trolley wire (Tr. 43). Miners were also exposed to coming 

into contact with the unguarded, energized wire when they went to 

the cut-off switch to turn the power on and off (Finding Nos. 21 

and 26, supra). In such circumstances, the preponderance of the 

evidence supports a finding that the violation was serious. 

In summary, the evidence shows that a large operator is involved, that payment of penalties will not cause it to discontinue in business, that it has a moderate history of previous 

violations, that the violation was associated with a high degree of negligence, and that the violation was serious. Those 

findings support assessment of a penalty of $750 for the violation of section 75.1003. 

WHEREFORE, it is ordered: 

(A) The granting (Tr. 5) of the motion by counsel for the 

Secretary of Labor to withdraw the petition for assessment of 

civil penalty to the extent that it alleges a violation of section 75.1003 in Citation No. 1066939 is confirmed and the oetition is deemed to have been withdrawn with respect to the violation of section 75.1003 alleged in Citation No. 1066939. 

(B) U. S. Steel Mining Co., Inc., shall, within 30 days 

from the date of this decision, pay civil penalties totaling 

$1,000.00 for the violations of section 75.1106-2(c) alleged in 

Citation No. 1066938 ($250) and section 75.1003 alleged in 

Citation No. 1066940 ($750). 

~C.r<i~ Richard C. Steffey ~ Administrative Law Judge 

1495 
Distribution: 

David E. Street, Esq., Office of the Solicitor, u. S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Ce.rtified Mail) 

Louise Q. Symons, Attorney, U. S. Steel Mining Co., Inc., 600 

Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

yh 1 '.IQ'" lk_ ~v '· t1 . 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 30 118 

JOSEPH D. BURNS, 

Complainant . .. COMPLAINT OF DISCRIMINATION 

(Fee Application) 

v. Docket No. YORK 82-19-DM 

ASARCO I INC. I Manchester Unit 

Respondent 

DECISION 

Statement of the Case 

This case is before me on complainant's application for 

attorney fees 1/ pursuant to section 105(c) (3) of the Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c) (3). The 

fee application is the final phase of a discrimination complaint filed by Joseph D. Burns against ASARCO, Incorporated, 

a large multinational non-ferrous metal company. 

From 1973 to March 1981, Burns was employed as a repairman at ASARCO's Manchester Unit, an open-pit illemite mine 

located in Lakehurst, New Jersey. One of Burns' duties was 

to repair a floating suction tlredge utilized to extract 

alluvial sands from a water-filled pond approximately 

65 feet deep. 

On March 20, 1981, Burns was instructed by his foreman, 

Thomas Wheeler, to repair cracks in the cross braces of a 

dredge ladder. Burns refused to do the work because the 

ladder was improperly braced and stabilized and he feared 

for his safety. As a result, he was discharged for 

insubordination. 

1/ While the accepted practice is to use the word •iattorney" 

as a noun in either the singular or plural possessive, I 

find it simpler to use it as an adjective. 

149'1 
Believing his refusal to work was a protected activity 

within the meaning of section 105(c) (1) of the Mine Act, 

Burns filed a complaint with the Mine Safety and Health 

Administration (MSHA). Nine months later, MSHA advised 

Burns that his disciplinary discharge did not constitute a 

violation of section 105(c) (1) of the Act. Persisting in 

the belief that he was unlawfully discharged, Burns filed a 

complaint pro se with the Commission. In February 1982, 

perfecting amendments to the complaint were received and 

after ASARCO filed its answer in March the matter was 

assigned to this trial judge. The trial judge requested a 

copy of the MSHA investigative report. Upon its receipt, 

copies were furnished the parties together with an order to 

furnish additional pretrial information. 2/ The prehearing 

conference scheduled for July 22, was continued and reset 

for September 21 when complainant succeeded in engaging the 

firm of Terris & Sunderland of Washington, D.C. on a pro 

bono basis. Representing complainant thereafter were~­

Philip G. Sunderland, a partner in the firm and David A. 

Klibaner, an associate. 

Burns' counsel quickly familiarized themselves with the 

case and on August 12, 1982. endeavored to initiate settlement discussions with William O. Hart, counsel for ASARCO. 

When Mr. Hart rebuffed these overtures, they were renewed on 

August 30 and again on September 20, the day before the 

prehearing/settlement conference. 

In each instance, Mr. Hart unequivocally rejected 

settlement discussions because "ASARCO felt strongly that 

the complainant was insubordinate, that he was attempting to 

harass the company and get whatever monies he could from the 

company through the very liberally worded (and interpreted) 

discrimination provisions of the Act." At the conference, 

Mr. Hart was not prepared to consider the strengths and 

2/ In pro se cases, particularly, the trial judge believes 

the decisionmaker has a "duty of inquiry" which imposes an 

obligation to scrupulously and conscientiously explore all 

relevant facts. Inherent in the concept of a due process 

hearing is the trial judge's obligation, especially in cases 

involving unrepresented parties, to inform himself of all 

facts relevant to his decision. Goss v. Lopez, 419 U.S. 

465, 580 (1975); Heckler v. CampbeIT; 51 L.W. 4561, 4564, n. 

(1983) , (concurring opinion of Justice Brennan) • 
weaknesses of his case. His excuse was that in five and 

one-half years of practice before OSHRC and FMSHRC he was 

never before expected to have reviewed the facts of his case 

before appearing at a prehearing/settlement conference. 

What transpired at the conference of September 21, 

convinced Mr. Hart to review his case carefully and discuss 

it with his employer. His concern was triggered by his 

belief that complainant would be able to establish a prima 

facie case and.thus would be likely to prevail on the 

merits. Nonetheless settlement attempts during October and 

November were unproductive, the parties disagreeing on the 

amount of backpay for overtime to which Burns was entitled, 

and the necessity for treating complainant's damage claim 

separately from the claim for attorney fees in any settlement. On December 3, 1982, four days before the date set 

for trial in Toms River, New Jersey, the parties agreed to 

bifurcate the matter by settling Mr. Burns' claim for $4,000 

and leaving the question of attorney fees and expenses for 

determination by the trial judge. 

Thereafter, counsel for Burns submitted a fully documented fee application and a reply to ASARCO's opposition. 

Supplementing the application is a memorandum in support 

thereof, an affidavit by Philip Sunderland, and copies of 

all time sheets and expense receipts pertaining to the work 

done by Terris & Sunderland personn~l on the Burns case. 

Applicants ask for $11,011.14 in fees and expenses resulting 

from 170.25 hours of work. 

Respondent submitted a generalized opposition to the 

application claiming the case was so simple, obvious and 

straightforward that any award should be limited to not more 

than $2,000. After consideration of the application, 

opposition and reply, I determined respondent had not 

supported with sufficient particularity its challenge to the 

number of hours expended and issued an order requiring 

respondent to show cause why ·the application should not be 

granted. Respondent filed its response on July 22, 1983. 

The following chart summarizes the amounts claimed by 

Terris & Sunderland for Attorney fees and expenses: 

1499 
WORK CATEGORIES 

I - Initial Preparation 

II - Preparation of Proposed 

Stipulations of Fact, 

Conclusions of Law and 

Proposed Findings of Fact 

and Conclusions of Law 

III - Hearing Preparation 

IV - Calculation of Damages 

V - Settlement Discussions 

VI - Subpoenas 

VII - Preparation of Attorney 

Fees Application 

Total 

HOURS _y 

30.75 

27. 25 . 

40.25 4/ 

16.25 

10.00 

4.75 5/ 

41.00 6/ 

170.25 

Expenses 

Total 

AMOUNT 

$2,325.00 

1,835.00 

2,511.25 

596.25 

718.75 

315.00 

2,402.50 

$10,703.75 

307.39 

$11,011.14 

3/ These figures do not include 35 hours of time eliminated 

from the fee request by applicants in the exercise of 

"billing judgment." 

4/ AS.ARCO's response to the show cause order suggests the 

total for categories I, II, and III of 98.25 hours was 

excessive because this work "to a large extent, merged into 

the general subject of becoming acquainted with the record." 

This was not time spent becoming acquainted with an existing 

record, it was time spent in preparing for trial. It was 

the thoroughness of this preparation that convinced ASARCO 

to rethink its intransigent position with respect to settlement. 

5/ Nothing in AS.ARCO's discursive submittals specifically 

challenges the time spent on categories IV, V, and VI. 

6/ The only specific challenge is to the time spent in 

preparing applicants' supporting memorandum. I consider the 

time well spent since it contributed greatly to my understanding of the context against which this dispute must be 

resolved. The discussion of the principles that underlie 

the lodestar approach was directly relevant to AS.ARCO's claim 

that the fees sought are disproportionate to the amount 

recovered. I can find nothing in the record to support the 

assertion that ASARCO was prepared to stipulate that the 

hourly rate was reasonable. On the contrary, ASARCO suggests 

that at one time it felt the hourly rate should not exceed 

$60.00. It was not until after the application was prepared 

and filed that ASARCO conceded the hourly rates were reasonable. 

1500 
The trial judge has reviewed the fee application in 

considerable detail and concludes (1) ASARCO failed to show 

any of the time claimed was excessive or unreasonable, 

(2) the fair market value of the services rendered is the 

amount claimed, $11,011.14 plus interest from the time the 

application was filed. 

Market Value Formula 

While the Commission has not addressed the question, 7/ 

the Supreme Court and the federal courts of appeal have held 

that under statutes that provide for public interest enforcement the award of fees to prevailing parties should include 

compensation (1) for all time reasonably expended, (2) at 

rates that reflect the full market value (hourly rates) for 

such time. Hensley v. Eckerhart, 51 L.W. 4552, 4554-4555, 

4558 (1983); Copeland v. Marshall, 614 F.2d 880, 890-900 

(D.C. Cir. 1980) (en bane); Lindy Bros. Bldrs. v. American 

Radiator Standard Sanitary Corp., 540 F.2d 102, 112-118 (3d 

Cir. 1976); Johnson v. Georgia Highway Express, Inc., 488 

F.2d 714, 717-719 (5th Cir. 1974); Laffey v. Northwest 

Airlines, C.A. 2111-70, (D.D.C., July 29, 1983). Under this 

formula, known as the Copeland III or market value formμla, 

the number of hours reasonably expended is multiplied by 

the applicable hourly rates for the attorneys to arrive at 

the "lodestar" calculation. Copeland, supra, 641 F.2d at 

891. A reasonable hourly rate is defined as that prevailing 

in the community for similar work. Id. at 892. Once established, the lodestar may be adjusted--Upward or downward to 

reflect the characteristics of the case (or counsel) for 

which the award is sought. A premium is usually awarded if 

counsel would have received no fee if the suit was unsuccessful, 

unless the hourly rate reflects that factor. In addition, 

the lodestar may be increased or decreased to recognize a 

delay in payment or legal representation of superior or 

inferior quality. Id. at 892-894. In multi-claim proceedings 

no fee is recoverable for services on unsuccessful claims. 

Henseley, supra. 

7/ In Glen Munsey, 3 FMSHRC 2056 (1981), rev'd in part and 

remanded Glen Munsey v. FMSHRC, No. 82-1079, D.C. Cir. 1983, 

Judge Stewart used the market value or Copeland III approach 

in awarding fees and expenses of $26,462.50 on a recovery of 

$2,858.26. See also Joseph D. Christian, 1 FMSHRC 126 (1979) 

($26,231.32 awarded in attorney fees and expenses on a 

recovery of $12,072.52); Council of the Southern Mountains, Inc., 

3 FMSHRC 526 (1981), appeal pending, ($14,108.32 awarded in 

fees and expenses on a recovery of $626.69). 

1501 
In evaluating fee applications the trial judge is 

required to exercise considerable discretion and to articulate his analysis as clearly as possible. Unless the end 

product falls outside a rough "zorie of reasonableness," or 

unless the explanation articulated is patently inadequate, 

a reviewing authority as a matter of sound judicial administration will not disturb the trial judge's solution to the 

problem of balancing the many factors that have to be taken 

into account. Cf. Permian Basin Area Rate Cases, 390 U.S. 

747, 767 (1968). To accomplish the statutory purpose 

attorneys must feel confident they will receive fair compensation for their efforts when they are successful. By the 

same token, operators must be assured that judicial oversight 

and discretion will be exercised to prevent "windfalls." 8/ 

Burden of Proof 

Recognizing that the analytical framework established 

by the market value formula places a difficult, sometimes 

onerous, burden on the trial judge 9/ the courts have held 

this burden can only be lightened by placing on the fee 

applicant a "heavy obligation" to document the various 

facets of his claim. To meet this burden and to establish 

the time expended was reasonable, the fee application must 

contain detailed information about the hours logged and the 

work done. Nat. Ass'n of Concerned Vets. v. Sec. of Defense, 

675 F.2d 1319, 1323-1324 (D.C. Cir. 1982). While the fee 

application need not present "the exact number of minutes 

spent nor the precise activity to which each hour was 

devoted nor the specific attainments of each attorney," the 

application must be sufficiently detailed to permit the 

8/ The attorney fees remedy is actually an independent 

cause of action designed by Congress to facilitate litigation 

by otherwise unrepresented litigants in furtherance of more 

effective enforcement--enforcement essentiallv freed of the 

bureaucratic, political and fiscal constraints that otherwise impairs agency enforcement. The existence of this 

remedy encourages miners to perform their deputized police 

function, gives operators a strong incentive to comply and 

tends to deter unnecessary protraction of public interest 

litigation. 

9/ In Council of Southern Mountains, Inc., supra, Judge 

Steffey complained of having to spend "weeks" evaluating a 

fee application, apparently assuming the entire burden of 

doing so was on him. On the other hand, in Glen Munsei, 

supra, Judge Stewart found that allocation to the parties of 

the Copeland III burden greatly facilitated his disposition 

of the matter. 

l rr;'.J Uv,..., 
trial judge to make an independent determination of whether 

the hours claimed are justified. Id. at 1327. Casual, 

after-the-fact estimates are insufficient. Attorneys who 

anticipate making fee applications must maintain contemporaneous, complete and standardized time records which 

accurately reflect the work done. 10/ Ibid. The application should also indicate whether nonproductive time or time 

expended on unsuccessful claims was excluded. 11/ 

Once a properly documented application is submitted, 

the burden shifts to the party opposing the fee award, who 

must submit facts and detailed affidavits to show why the 

applicants' request should be reduced or denied. 12/ 

Donnell v. United States, 682 F.2d 240, 250 (D.C.-Cir. 

1982); Concerned Veterans, supra, at 1337-1338 (concurring 

opinion of Judge Tamm) . Opposing counsel must frame his 

objections with particularity and specificity. The trial 

judge is not expected sua sponte to "inquire into the 

reasonableness of every action taken and every hour spent by 

counsel, and will consider objections to filed hours only 

where [he] has been presented with a reasonable basis for 

believing the filing is excessive." Donnell, supra, at 250. 

It is not enough for opposing counsel to state the hours 

claimed are excessive and/or the rates too high and expect 

the trial judge to make a line item audit and assume the 

burden of making the particularized showing necessary to 

support such a conclusory position. Concerned Veterans, 

supra, at 1338, Copeland, supra, 903. 

ASARCO did not seek discovery to support its assertion 

that the hours claimed were excessive. It simply asserts 

that the application as presented and supported was too 

vague and indefinite to permit a rational evaluation. 

10/ This requirement may have to be flexibly applied in 

Commission proceedings that involve attorneys or parties 

that do not have the resources to maintain such records. 

Compare Kling v. Dept. of Justice, 2 MSPB 620 (1980) with 

O'Donnell v. MSPB, 2 MSPB 604 (1980). 

11/ Here applicants state 35 hours of time was excluded in 

the exercise of "billing judgment" which I assume means time 

considered largely unproductive. Because the nature of the 

work and the individuals involved were not specified, I have 

disregarded this factor in evaluating the fee application. 

12/ Discovery is, of course, available to assist a party in 

preparing his opposition. Discovery requests should be 

precisely framed and promptly advanced before final opposition papers are filed. Unfocused requests serve no useful 

purpose and will be denied. If discovery is pursued for 

purpose~ of delay or other improper purposes the final award 

may take that into account. Compare, Concerned Veterans, 

supra, at 1329. 

150J 
ASARCO concedes Burns was the prevailing party, the reasonableness of applicants' hourly rates and the applicability 

of the lodestar or market value method of evaluating the 

application. 

The sole challenge made is to the reasonableness of 

the number of hours claimed for the particular services 

performed. My independent analysis concludes the hours 

claimed were reasonable in view of the difficulties 

encountered in developing the necessary support for 

complainant's prima facie case and ASARCO's'total lack of 

cooperation ih limiting, until after the fact, the issues 

to be considered in deciding the fee application. 

Hours Reasonably Expended 

Sufficiency of the Application 

Applicant's submission was sufficiently detailed to 

permit opposing counsel to conduct an informed appraisal of 

the merits of the application or to file a detailed and 

focused request for any discovery deemed essential to permit 

such an attack. The trial judge's analysis finds that, 

in accordance with the market value formula, the application 

includes a breakdown and itemization within seven categories 

of the work performed, an affidavit describing in adequate 

detail the work actually performed by counsel and the paralegals, the time sheets of the attorneys and paralegals who 

performed the work, documentation of the expenses claimed 

and resumes of the qualifications and attainments of the 

lawyers involved. From this data, detailed schedules for 

each attorney and paralegal who worked on the case listing 

specific tasks performed (e.g., "prehearing conference," 

"prepare stipulations," "draft findings," "draft FOIA request," 

"calculate damages,""discuss settlement," "research and 

prepare fee affidavit") were compiled. In addition, applicants 

submitted a supporting memorandum and a response to ASARCO's 

opposition. Each of these documents were independently 

researched in order to evaluate their worth and to form my 

own independent view of the many procedural, policy and 

factual issues presented 13/ iri this the first separately 

contested fee application---Submitted to the Commission under 

13/ No pleading by pleading evaluation was made of the 

underlying case file. In Copeland, supra, at 903, the court 

held it is neither practical nor desirable to expect the 

trial court to examine each paper in the case file to 

decide whether it should have been prepared or could have 

been prepared in less time. 
the market value formula. 14/ I find ASARCO's claim that 

the application is too conclusory to permit anything other 

than a generalized attack lacking in merit. 

As the courts have admonished, fee contests should not 

be allowed to evolve into exhaustive trial-type proceedings 

or result in a second major litigation. Henseley, supra, at 

4555; Concerned Veterans, supra, at 1324; Copeland, supra at 

896, 903. If each victory on the merits is but the prelude 

to an all-out war over the reasonableness of the fee claimed 

attorneys may be deterred from pro bono representation of 

miners asserting their rights to be free of unlawful coercion, 

retaliation, interference, and discrimination. Should this 

occur, the legislative purpose will be frustrated. 15/ 

Challenges to the Lodestar 

ASARCO's opposition and its response to the show cause 

order reflect its disdain for the whole proceeding and smack 

more of a dilatory, blunderbuss attack than a well conceived, 

lawyerlike, challenge. That opposing counsel allegedly 

chose to spend only 32 to 45 hours in defending the case may 

be of interest to his employer but is hardly the measure of 

14/ In view of the amounts involved in both the claim on 

the merits and the fee application, my initial reaction was 

that the litigants should settle the amount of the fee. I 

was somewhat shocked, therefore, to find they were so far 

apart. My "displeasure" over this difference--and not the 

amount of either--caused me to urge the parties to stipulate 

away some of their differences and to attempt further 

settlement discussions. 

15/ In view of the number of cases in which the Solicitor 

declines prosecution that are later found to be meritorious 

in public interest proceedings, it is obvious the agency's 

enforcement policy leaves much to be desired. During the 

last 18 months, miners refused protection by the Labor 

Department were filing cases at almost three times the rate 

of filing by the agency. Most of these miners are unrepresented but must appear against experienced attorneys representing 

the operators. This puts a tremendous strain on the trial 

judge charged,as he often is, with both developing and at 

the same time trying the facts. See note 2, supra. 

1503 
the effort reasonably warranted in- behalf of a complainant. 16/ 

The trial judge is not in a position to take such a bald ~ 

assertion seriously. 17/ As a basis for comparison not only 

is it irrelevant, it is also wholly undocumented. 

After all, if applicants did not win they got nothing, 

whereas opposing counsel would be on the corporate payroll 

regardless of the outcome. 18/ In a case he did not believe 

he could win and with generous authority to settle at any 

time, opposing counsel chose to sit back and let complainant's 

counsel "sweat it out." 

The fact that opposing counsel chose to spend so little 

time in preparation for both the pretrial and the trial is 

more a commentary on his own evaluation of the lack of merit 

of his defense than a basis for criticizing the efforts by 

complainant's counsel. It is true, of course, that the 

Solicitor's finding of no violation gave opposing counsel 

some grounds for complacency and complainant's counsel 

considerable cause for concern. With this concern in mind, 

applicants were hardly in a position to take the matter of 

trial preparation lightly. Counsel working on a contingent 

fee basis, unlike counsel who work on a guaranteed salary 

basis, have to make money the old fashioned way. They have 

to earn it. I reject, therefore, the "invidious comparison 

of time expended" approach espoused by opposing counsel as 

a sound basis for reducing or denying any of the time 

claimed by applicants. 

ASARCO's claim that 170 hours is far too much for a 

"straighforward" case such as this is equally without 

merit. As respondent admits there were seven disputed 

issues of fact, several of which turned on the credibility 

of opposing, extremely hostile witnesses. This case had to 

be prepared in the manner of all classic swearing matches--

leave no stone unturned to develop information useful in 

impeaching the opposition's witnesses, and thoroughly 

prepare your own witnesses for a rigorous cross examination. 

In view of the number of witnesses involved (12 to 15) and 

16/ Casual, after-the-fact estimates of time expended by 

opposing counsel are no more-acceptable than those by fee 

applicants. 

17/ Sworn, undocumented assertions are not a lawyerlike way 

to establish time expended in a matter. 

18/ The total absence of a risk factor makes time expended 

by opposing counsel an unacceptable calculus of the time 

expended by complainant's counsel. 

150G 
the incentive for them to be selective in their testimony, I 

cannot conscientiously find that the 98.25 hours of time 

expended in preparation for the trial of this matter was by 

any reasonable standard excessive. 

The proposed stipulations and proposed findings of fact 

challenged were contemplated by the pretrial orders. Their 

function was to clarify and narrow the issues in order to 

save trial time. It is undisputed that respondent's counsel 

depended heavily on applicants' work product in preparing 

his own proposed findings. It hardly lies in opposing 

counsel's mouth, therefore, to argue that the time expended, 

27.25 hours, was unnecessary. My review of these proposals 

shows applicants did a thorough, competent and responsible 

job, particularly with respect to the damage calculations. 

I am unable to conclude that the time expended was unreasonable. 

Certainly respondent has furnished no probative basis for my 

doing so. 

If anything, I find the work performed by the paralegals 

in calculating the damages was extremely efficient considering 

the difficulties they encountered. Reconstructing complainant's 

overtime in the face of respondent's reluctance to cooperate 

was no mean feat. I cannot fault the 16.25 hours expended 

for this work. 

Respondent has not questioned the 10 hours spent in 

settlement discussion. Nor has any question been raised 

about the 4.75 hours expended in preparing subpoenas for 

witnesses. The extra work involved in persuading the 

Department of Labor to allow the MSHA Special Investigator 

to appear was certainly time well spent even though his 

appearance later became unnecessary. His prospective 

appearance was obviously a factor that contributed to the 

settlement. 

The claim that time spent in trial preparation on and 

after October 7, 1982, was unnecessary is without substance. 19/ 

Counsel admits that shortly after the pretrial conference of 

September 21, 1982, ASARCO authorized him to settle the 

matter for $5,000. Despite this, he delayed making the 

off er until applicants called him on October 7 and proposed 

19/ Mr. Hart was warned that unless the matter was settled 

a heavy expenditure of time would be necessary to prepare for trial. 

150~ 
settling the matter for $7,000. 20/ Mr. Hart rejected this 

but countered with an offer to settle both claims for $4,000. 

When the counteroffer was rejected, applicants again proposed 

separating the damage claim from the fees claim and to 

settle the former for $5,750. This was on November 22, 

1982. Mr. Hirt considered the proposal "insulting" and 

never responded. 

In the meantime, applicants were expending considerable 

time in preparation for the trial which had been set for 

December 7, 1982. On the eve of trial, December 3, 1982, 

Mr. Hart suddenly reversed his position and thereafter the 

parties agreed to settle complainant's claim for $4,000 and 

to submit applicants' fees for determination by the trial 

judge. 

While attorney fee applications are closely related to 

the merits proceeding, they are at the same time more akin 

to separate causes of action. It is the mixed nature of 

such proceedings that gives rise to much misunderstanding 

and procedural floundering. ASARCO's claim that applicants' 

refusal to take their fees and expenses out of a common fund 

was a ploy to prolong unnecessary trial preparations shows 

a lack of sensitivity to the relevant ethical and tactical 

considerations. The Code of Professional Responsibility 

prohibits an attorney from representing a client where the 

lawyer's personal financial interest may be in conflict with 

that of his client. DR 5-lOl(A). Thus, where a lump sum 

settlement is offered to cover both damages and fees the 

lawyer and his client are invited to compete over how the 

fund shall be shared. This creates a conflict of interest 

which is best avoided and resolved by settling the two 

claims separately. Prandini v. National Tea Co., 557 F.2d 

1015, 1021 (3d Cir. 1977); Mendoza v. United States, 623 

F.2d 1338, 1352-1353 (9th Cir. 1980); Obin v. Dis. 9 of 

Intern. Ass'n. etc., 651 F.2d 574, 582(8th Cir. 1981). 

It was not, therefore, improper for applicants to 

insist that the fees question be decided separately from the 

settlement on the merits. Further, it would be contrary to 

the legislative purpose to force miners to absorb attorney 

fees and expenses or to allow operators to force their 

attorneys to compete with their clients for reimbursement 

for such fees and expenses. 

20/ At that time it appears the attorney fees may have 

amounted to only $3,000. 

lfJOd 
Counsel for ASARCO was aware from the beginning that 

applicants were reluctant to take a discounted common fund 

settlement and were insisting on separating the two issues. 

At any time on or after October 7, 1982, Mr. Hart could have 

saved the expenditure of time for trial preparation by 

agreeing to bifurcate the matter. Applicants were ·duty 

bound to continue their preparation until the matter was 

settled. The pressure of such preparation and the imminence 

of the trial date undoubtedly encouraged reversal of ASARCO's 

position with respect to separation of the issues. To deny 

or reduce the hours spent in trial preparation would unfairly 

penalize applicants and encourage a practice inimical to the 

purpose of the statute and high professional standards. 

For reasons previously stated, ASARCO's objection to 

the time spent in preparing applicants' supporting memorandum 

is denied. 21/ Once Mr. Hart made the decision to require 

applicants to prepare and file a fully supported lodestar 

application rather than to stipulate with respect to matters 

that have subsequently been conceded, applicants in the 

exercise of responsible professional judgment had no choice 

but to follow the applicable precedents and to furnish the 

trial judge and the Commission with a fully articulated 

rationale for awarding the same fees that would be charged 

a fee-paying client under the market value approach. 22/ 

The hourly rates of $90 for Mr. Sunderland, $65.00 for 

Mr. Klibaner, and $25.00 for the paralegals are not contested 

21/ Note 6, supra. 

attorney fees is, of 

fees. Environmental 

(D.C. Cir. 1982). 

Time reasonably devoted to obtaining 

course, itself subject to an award of 

Defense Fund v. EPA, 672 F.2d 42, 62 

22/ ASARCO, of course, cannot expect the trial judge to 

protect it against actions by its own counsel that increased 

its exposure to liability for complainant's fees and expenses. 

Operators should not be given an incentive to protract 

litigation in which miners seek to vindicate rights guaranteed 

by the statute. The prospect of liability for fees and 

expenses should deter not only violations of the statute but 

obviate any incentive to litigate imprudently. Copeland, 

supra, at 899. 

150U 
and are certainly reasonable. 23/ No request is made for an 

increase in the lodestar due tC>"the contingent nature of the 

arrangement because the billing rate already includes an 

allowance for that contingency. 

I find the quality of representation was at the level 

of skill. normally expected for attorneys practicing at these 

rates and that no upward or downward adjustment in the 

lodestar is called for on the basis of the results achieved. 24/ 

To account for the delay in payment, however, the award 

should include interest at the market rate from the date of 

filing of the application. Donnell, supra at 254; EDF v. 

EPA, supra, at 51-52; Copeland, supra, at 893; Concerned 

veterans, supra, at 1329. Interest, of course, reflec;:ts ~he 

time-value of money. That when coupled with what I find is 

a fully compensable hourly rate for all hours reasonab~y 

expended constitutes the full market value of the services 

rendered. 

Expenses, which were undisputed, amounted to $307.39. 

23/ There is no claim or showing that the associate's 

efforts were unorganized, wasteful, or duplicative or that 

the associate's labors were inadequately supervised by the 

partner. The ratio of the associate's time to the partner's 

time (3:1) is within an acceptable zone or reasonableness. 

24/ The suggestion that the fee claimed is disproportionate 

to the monetary relief obtained reflects a basic misunderstanding of the fee remedy. The purpose of the fee provision 

is to give miners victimized by discrimination the resources 

to vindicate their rights through litigation. Attorneys who 

undertake such representation face not only the risk of 

losing but also the· fact that in most instances the monetary 

recovery is relatively modest. It is comparatively easy to 

obtain competent counsel when the litigation is likely to 

produce a substantial monetary award. It is much more 

difficult to attract counsel when a substantial part of the 

relief sought is intangible and nonmonetary. Here the 

nonmonetary effect of the litigation is a deterrent to 

future acts of retaliation against miners who refuse to 

work under unsafe conditions. If that results in preventing 

one fatality or one disabling injury the socio-economic 

purpose of the statute and the litigation will be achieved 

and will more than justify the fee claimed. "Fee awards 

that produce substantial nonmonetary benefits must not be 

reduced simply because the litigation produced little 

cash." Copeland, supra, at 907. 

1510 
Order 

The premises considered, it is ORDERED that on or 

before Thursday, September 15, 1983, ASARCO, Incorporated 

pay attorney fees and expenses in the amount of $11,011.14 

with interest at the rate of 12% per annum from the date of 

the fee application, February 15, 1983, to the date of 

payment to the law firm of Terris & Sunderland, 1526 18th St., 

N.W., Washington, D.C., and that subject to payment the 

captioned matter be DISMISSED. 

Distribution: 

Josepn B. Kenn 

Administrative 

Joseph D. Burns, 159 L Stafford Forge Rd., West Creek, NJ 

08092 (Certified Mail) 

Philip G. Sunderland, Esq., Terris & Sunderland, 1526 18th St., 

N.W., Washington, DC 20036 (Certified Mail) 

William o. Hart, Esq., Industrial Relations Department, 

Asarco, Inc., 120 Broadway, New York, NY 10271 (Certified 

Mail) 

ejp 

1511 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 31, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

NUGENT SAND COMPANY, I~C., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-57-M 

A.C. No. 20-00801-05501 

Nugent Sand Mine 

FURTHER ORDER TO SUBMIT INFORMATION 

On August 8, 1983, I issued an order disapproving the 

Solicitor's motion for settlement with respect to three of 

the six violations involved in this matter. With respect to 

these three which are assessed at $20 apiece, I ordered the 

Solicitor to submit additional information sufficient for me 

to determine whether the proposed penalties are justified. 

The Solicitor has now submitted an amended motion. 

Unfortunately, this motion also is inadequate. With respect 

to Citation No. 2088974, absence of a fire extinguisher on a 

front-end loader, the Solicitor advises that there was no 

likelihood of injury and a moderate degree of negligence. 

He does not, however; furnish any reasons to support these 

conclusions. Indeed, the relevant boxes on the citation are 

not even checked. I have previously stated that the mere 

checking of the boxes does not constitute a sufficient 

basis upon which I could approve settlement. However, the 

absence of even these checks leads me to wonder how the 

Solicitor reached the conclusions set forth in this motion. 

With respect to Citation No. 2088975, the absence of a 

guard on a take-up pulley, the Solicitor advises that there 

was a low degree of negligence and no likelihood of injury. 

However, once again no reasons were given to support these 

conclusions. Moreover, the boxes were not even checked on 

the citation form. - The same is also true of Citation No. 

2088976 with respect to which the Solicitor states there is 

low negligence and no likelihood of injury. 

1512 
I very much regret having to send this case back to the 

Solicitor. However, the Commission has its statutory 

responsibilities to fulfill and cannot rubber stamp bare 

conclusions especially where as here, the citations on their 

face do not appear to support the Solicitor's representations. 

Accordingly, the amended settlement motion is disapproved 

and the Solicitor is Ordered to furnish further information 

within 30 days of the date of this order adequate for me to 

determine whether the three proposed $20 penalties are 

justified. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department 

of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Mr. Glenn Adams, General Manager, Nugent Sand Company, Inc., 

2875 Lincoln, P. o. Box 506, Muskegon, MI 49443 (Certified 

Mail) 

/ln 

151d 
FEDERAL MINE SAFETY AND. HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, o.c; 20006 

August 31,_ 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND.HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MEDUSA CEMENT COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-80-M 

A.C. Nti. 20-00038-05504 

Medusa Cement Company 

Plant 

DISAPPROVAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlement 

in the above-captioned proceeding. The Solicitor proposes 

to settle the one violation in this case for the original 

assessment of $56. 

Citation No. 2089073 was issued for a violation of 30 

C.F.R. § 56.16-6 because the covers on oxygen and acetylene 

cylinders being transported were not in place to protect the 

sterns of the cylinders. The Solicitor states that the 

operator demonstrated no negligence but he gives no basis 

for this assertion. The Solicitor further states that the 

violation was significant and substantial but again he gives 

no reasons. I note that the inspector stated on the citation 

that falling materials from the conveyors could easily 

strike one of the sterns and create a serious hazard. The 

inspector checked boxes indicating occurrence was reasonably 

likely and could reasonably be expected to result in lost 

workdays or restricted duty. 

I have recently held in many other cases that the term 

"significant and substantial" is irrelevant in a penalty 

proceeding before the Commission. Such a proceeding before 

the Commission under section 110 of the Act is entirely 

de novo. Whether or not the Secretary looks to the present 

definition of "significant and substantial" does not affect 

these proceedings. Here the relevant criterion is gravity. 

Moreover, I also have stated that I cannot base a settlement 

approval upon an inspector's checks in boxes on a form 

without some explanation from the Solicitor. 

1514 
The Solicitor has told me nothing about size, prior 

history, or ability to continue in business. 

Under section llO(i) of the Act I am charged with the 

responsibility of determining an appropriate penalty in 

light of the six specified criteria. The Solicitor has not 

even mentioned most of these criteria and where he has, he 

either gives no reasons (negligence) or misstates the standard 

(gravity). 

The Solicitor must tell me why $56 is an appropriate 

penalty in light of the six statutory criteria. The fact 

that this was the originally assessed amount is not, of 

course, .determinative in this de novo proceeding. 

Accordingly, the settlement motion is Denied and the 

Solicitor is Ordered to submit the necessary information 

within 30 days from the date of this order. 

;----~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, u. S. Department 

of Labor, 230 South Dearborn Street, Chicago, IL 60604 

(Certified Mail) 

Mr. Thomas Thimm, Medusa Cement Company, Bells Bay Road, 

P. O. Box 367, Charlevoix, MI 49720 (Certified Mail) 

/ln 1515