AUGUST 1989 

COMMISSION DECISIONS 

08-21-89 

08-21-89 

08-21-89 

08-24-89 

08-24-89 

08-25-89 

08-28-89 

Industrial Constructors Corporation 

Sec. Labor for John Bushnell v. Cannelton 

Industries, Inc. 

Birchfield Mining Company 

Rushton Mining Company 

Consolidation Coal Company 

BethEnergy Mines, Inc. 

Tracey & Partners, Randy Rothermel 

ADMINISTRATIVE LAW JUDGE DECISIONS 

08-01-89 Yaple Creek Sand & Gravel 

08-02-89 Donald R. Babbs v. Peabody Cbal Company 

08-03-89 Sec. of Labor on behalf of 13 miners v. 

Ideal Basic Industries, Inc. 

08-03-89 Bruce Mitchell v. Asarco, Inc. 

08-04-89 Industrial Constructors 

08-11-89 Rushton Mining Company 

08-11-89 Rushton Mining Company 

08-11-89 Mid-Continent Resources, Inc. 

08-11-89 Mid-Continent Resources, Inc. 

08-16-89 Junior Phillips/Scarab Energy Corp. 

08-16-89 V H W Incorporated 

08-17-89 Helen Mining Company 

08-22-89 Arnold Sharp v. Big Elk Creek Coal Co. 

08-22-89 Cyprus Empire Corporation 

08-23-89 Ed Yankovich, Paul Branchish, etc. v. 

Consolidation Coal Company 

08-30-89 Clinchfield Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

07-12-89 

07-20-89 

08-02-89 

08-09-89 

Asarco, Incorporated 

Consolidation Coal Company 

Sec. Labor on behalf of Harry Ramsey v. 

Industrial Constructors Corp. 

Sanger Rock & Sand 

WEST 89--86-M Pg. 1423 

WEVA 85-273-D Pg. 1425 

WEVA 87-272 Pg. 1428 

PENN 88-99-R Pg. 1432 

WEVA 87-343 Pg. 1439 

PENN 87-94 Pg. 1445 

PENN 87-121-R Pg. 1457. 

CENT 88-93-M Pg. 1471 

KENT 89-119-D Pg. 1485 

CENT 88-142-D Pg. 1486 

WEST 88-244-DM Pg. 1489 

WEST 88-256-M Pg. 1490 

PENN 89-5 Pg. 1499 

PENN 89-17 Pg. 1506 

WEST 88-121 Pg. 1509 

WEST 88-122 Pg. 1512 

SE 89-10 Pg. 1514 

CENT 88-140-M Pg. 1518 

PENN 88-312 ·Pg. 1526 

KENT 89-70-D Pg. 1528 

WEST 88-206 Pg. 1553 

PENN 89-214-D Pg. 1566 

VA 89-67-R Pg. 1568 

SE 88-82-RM Pg. 1573 

WEVA 89-20 Pg. 1581 

WEST 88-246-DM Pg. 1585 

WEST 88-275-M Pg. 1604 

AUGUST 1989 

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

Secretary of Labor, MSHA v. Mountain Parkway Stone, Inc., Docket No. 

KENT 89-27-M. (Judge Weisberger, July 14, 1989) 

There were no cases in which review was denied. 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

INDUSTRIAL CONSTRUCTORS 

CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 21, 1989 

Docket No. WEST 89-86-M 

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

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On June 13, 

1989, Commission Chief Administrative LaW-Judge Paul Merlin issued an 

Order of Dismissal, stating that the Commission had been informed by the 

Secretary that the proposed penalty in this case had been paid. By 

letter dated July 24, 1989, addressed to counsel .. for the Secretary and 

copied to Judge Merlin, Industrial Constructors Corporation ("Industrial 

Constructors") states that its payment of a different civil penalty, for 

Citation No. 3065456, appears to have been mistakenly applied to Citation 

No. 2876658, the subject of the present proceeding. The operator requests 

that this matter be reopened. A copy of this letter was received by the 

Commission on July 27, 1989. We deem the operator's letter to constitute 

a request for relief from a final Commission order, incorporating a latefiled petition for discretionary review. For the reasons set forth below, 

we grant review, vacate the judge's dismissal order, and remand this matter 

for further proceedings. 

The judge's jurisdiction in this matter terminated when his order of 

dismissal was issued. 29 C.F.R. § 2700.65(c). Because the judge's 

decision has become final by the operation of law (30 u.s.c. § 823(d)(l)), 

we can consider the merits of Industrial Constructors' request, received 

by the Commission after the judge's decision became final, only if we 

construe it as a request for relief fran a final Commission decision 

incorporating a late-filed petition for discretionary review. See, e.g., 

A.H. Smith Stone Company, 11 FMSHRC 796, 797-98 (May 1989), and authorities 

cited. 

1423 
Here, Industrial Constructors asserts in its letter that the reason 

that its request for relief from the judge's dismissal order was late was 

because it did not receive the judge's order or it was misplaced in the 

company's office. Under the circumstances, we excuse the late filing, 

and consider the letter as a petition for discretionary review. See 

generally, M.M Sundt Construction Co., 8 FMSHRC 1269, 1270-71 (September 

1986). See also Ten-A-Coal Co., 10 FMSHRC 1132, 1133 (September 1988). 

An operator's payment of a civil penalty extinguishes its right to 

contest the penalty and the underlying alleged violation, except where 

payment has been made by genuine mistake. Old Ben Coal Co., 7 FMSHRC 205, 

207-10 (February 1985). The operator's request for relief questions the 

basis upon which the judge's dismissal order rests. The operator's letter 

suggests that the operator should be heard with respect to the correctness 

of the Secretary's prior notification to the Commission that the proposed 

civil penalty for the citation in issue had been paid. See Coal Junction 

Coal Co., 11 FMSHRC 502, 503 (April 1989). 

Accordingly, we grant the operator's petition for discretionary 

review, vacate the dismissal order, and remand this matter to the judge 

for further proceedings. 

William T. Murphy, Esq •. 

Industrial Constructors Corp. 

101 International Way 

P.O. Box 7489 

Missoula, Montana 59807 

S. Lorrie Ray, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1585 Federal Bldg. 

1961 Stout Street 

Denver, Colorado 80294 

~~-rd..,_~_Ch__.a..._irm__.._.an--·---

~~....-- 'Ricllard 

~t?~ oyceA:DOyle, Co~mi~ . 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety and Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1424 
FEDERAL -MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 21, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, on behalf of 

JOHN W. BUSHNELL 

v. 

CANNELTON INDUSTRIES, INC. · 

Docket No. WEVA 85-273-D 

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

Commissioners 

ORDER· 

--

BY THE COMMISSION: 

This discrimination case ar1s1ng under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or "Act"), 

is before us on remand from an opinion of the United States Court of 

Appeals for the District of Columbia Circuit reversing our prior 

decision in this matter. Secretary of Labor on behalf of John W • 

. Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432 (1989), rev'g, 

10 FMSHRC 152 (February 1988}: At issue is the scope of the pay 

protection afforded miners with evidence of pneumoconiosis (Black Lung 

disease) by relevant provisions of the Mine Act and the Secretary of 

Labor's regulations at 30 C.F.R. Part 90. 

The discrimination complaint filed by the Secretary of Labor on 

John W. Bushnell's behalf i~ this matter alleged that Cannelton 

Industries Inc. ("Cannelton") discriminated against Bushnell, a "Part 90 

miner," in violation of section 105(c)(l) of the Mine Act, 30 U.S.C. 

§ 815(c)(l), when, after a job transfer occurring as part of a companywide work force reduction and realignment, he was paid at a rate lower 

than the rate he was receiving immediately prior to his transfer. The 

transfer at issue occurred several years after Bushnell's initial 

transfer without loss of pay to a low-dust job pursuant to 30 C.F.R. 

Part 90. Connnission Administrative Law Judge William Fauver determined 

that Cannelton unlawfully discriminated against Bushnell when it failed 

to compensate him after his second transfer at the same rate of pay that 

he had received prior to that transfer. 8 FMSHRC 1607 (October · 

1986)(ALJ). In essence, Judge Fauver concluded that the Part 90 pay 

protection provision set forth at 30 C.F.R. § 90.103(b) applies whenever 

1425 
a Part 90 miner is transferred and is not limited only to transfers as a 

result of exposure to respirable dust. 8 FMSHRC at 1608-09. The judge 

awarded Bushnell back pay of $161.14 plus interest on that sum to be 

"computed in accordance with the Commission's rulings concerning 

interest" and assessed Cannelton a civil penalty of $25. 8 FMSHRC at 

1609-10. We granted Cannelton's petition for discretionary review, 

which was limited to the sole issue of the judge's construction of the 

pay protection afforded to Part 90 miners by the Secretary's 

regulations. 

In our prior decision, we disagreed with the judge. We concluded 

that both the general pay protection provisions of section 10l(a)(7) of 

the Mine Act, 30 U.S.C. § 811(a)(7), and the regulations set forth in 

Part 90 applied only to exposure-related transfers, not to all 

transfers. 10 FMSHRC at 155-59. Finding that Bushnell was transferred 

as part of a bona fide, non-discriminatory work force reduction and 

realignment, we held that the immediate pay protection right enjoyed by 

Bushnell when he was initially transferred to a low-dust position did 

not obtain on the occasion of his later, nonexposure-related transfer. 

10 FMSHRC at 159. In this regard, we stated that "the pay protection 

provisions of the Mine Act and the Part 90 regulations do not grant Part 

90 miners a vested pay entitlement that insulates them against all 

negative business and economic contingencies affecting their employers." 

10 FMSHRC at 154-55 (emphasis in original). Accordingly, we reversed 

the judge's decision, dismissed Bushnell's discrimination complaint, and 

vacated the backpay award and civil penalty. 

The Secretary appealed our decision, and the Court, reversing our 

decision, stated: 

We hold that the Commission failed to extend the 

appropriate deference to the Secretary's 

interpretation of her own regulations and of the 

Mine act. The Commission erred insofar as it held 

that section 90.103(b) protects the Part 90 miner's 

wage only upon dust-related transfers and that a 

contrary interpretation would violate the Mine Act. 

Accordingly, we reverse the Commission's decision 

and remand this case to the Commission with 

directions to adopt the ALJ's decision in favor of 

Bushnell. 

867 F.2d at 1439. 

1426 
Accordingly, the judge's decision and assessment of civil penalty 

are reinstated. Cannelton is directed to pay Bushnell the back pay 

awarded by the judge, with interest calculated in accordance with the 

formula set forth at 54 Fed. Reg. 2226 (January 19, 1989). See Loe. U .-· 

2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (November--i9"88), pet. 

for review filed, No. 88-1873 (D.C. Cir. December 16, 1988). 

Distribution 

Larry W. Blalock, Esq. 

Michael J. Bonmarito, Esq. 

Jackson, Kelly, Holt & O'Farrell 

P.O. Box 553 

Charleston, West Virginia 25322 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Wi.lliam Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 21, 1989 

UNITED MINE WORKERS OF AMERICA Docket No. WEVA 87-272 

v. 

BIRCHFIELD MINING COMPANY 

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

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or "Act"), 

counsels for petitioner Secretary of Labor and respondent Birchfield Mining 

Company ("Birchfield") have filed a Joint Motion for Approval of Settlement. 

The motion states that counsel for the United Mine Workers of America ("UMWA") 

has no objection to the proposed settlement. For the following reasons, the 

parties' settlement is approved and this matter is dismissed. 

In January 1989, acting on Birchfield's petition for discretionary 

review, we affirmed the decision of Commission Administrative Law Judge 

Gary Melick (9 FMSHRC 2209 (December 1987)(ALJ)), which found that 

Birchfield had violated 30 C.F.R. § 75.303(a) and that the.violation 

resulted from Birchfield's unwarrantable failure to comply with that 

mandatory standard. 11 FMSHRC 31 (January 1989). A majority of the 

Commission reversed Judge Melick's finding that the violation was of a 

significant and substantial nature; a minority of the Commissioners 

dissented on that point. Birchfield had also contended that the judge 

had erred in assessing a $400 civil penalty for the violation. In view 

of its determination that the violation was not significant and substantial, 

the majority remanded the case to the judge for reconsideration of the 

appropriate civil penalty. 

Judge Melick issued a decision on February 2, 1989, assessing a 

revised penalty of $300. 11 FMSHRC 198 (February 1989)(ALJ). The Secretary filed a petition for discretionary review, arguing, in essence, for 

reconsideration of the Commission's prior determination with respect to 

the significant and substantial issue. The UMWA, which had not previously 

1428 
participated in this proceeding as a party, intervenor, or amicus also 

filed a petition for review similarly seeking reconsideration of the 

significant and substantial issue. By order issued March 14, 1989, we 

granted both petitions and again directed review. In the meantime, on 

March 10, 1989, Birchfield had paid to the Secretary the civil penalty 

of $300 assessed by the judge, which payment the Secretary subsequently 

accepted. 

Following the Commission's Direction for Review, the National Coal 

Association ("NCA") and Bituminous Coal Operators Association ("BCOA") 

jointly and the American Mining Congress ("AMC") individually filed motions 

to intervene. Concurrently with their motion, the NCA and BCOA, joined by 

Birchfield, filed a motion to dismiss the Secretary's and the UMWA's review 

petitions. The AMC, also joined by Birchfield, filed a similar motion to 

dismiss. In turn, the Secretary and the UMWA opposed both motions to 

intervene and both motions to dismiss. 

On June 22, 1989, Birchfield filed a Renewed Motion to Dismiss and 

Offer of Judgment. Birchfield asserted that the case was moot due to its 

payment of the $300 civil penalty. Birchfield further stated that it 

"d[id] not wish to incur further litigation expenses •••• " Pursuant to Fed. 

R. Civ. P. 68, Birchfield also "offer[ed] to have a judgment entered 

against it and in favor of the Secretary of Labor for $400 ••• , raising the 

total payment by Birchfield to the amount of the original penalty proposal." 

Following the filing of this motion, settlement discussions ensued among 

the parties. 

On July 17, 1989, the Secretary and Birchfield filed a Joint Motion 

for Approval of Settlement. Noting the Commission's prior divided opinion 

with respect to the significant and substantial issue, the parties state 

that they "recognize that final resolution of the [significant and 

substantial] issue ••• is a matter that is not free from doubt •••• " The 

parties further "recognize that extensive resources have been expended in 

the litigation to date and that additional resources will be expended in 

further pursuit of the litigation should it continue." The motion asserts 

that "[i]n light of the above considerations, the operator has determined 

that it no longer wishes to contest the [underlying] citation, its 

significant and substantial or unwarrantable failure findings, or the 

assessment of civil penalty." 

As part of the settlement, Birchfield agrees to pay a penalty of $400, 

the amount originally proposed by the Secretary and first assessed by Judge 

Melick. Birchfield also agrees to withdraw its previous petition for discretionary review that was the subject of our prior decision. In turn, the 

Secretary agrees to withdraw her present petition for review. The parties 

request the Commission to vacate its initial direction for review of Birchfield' s petition, its January 1989 decision, its subsequent direction for 

review of the Secretary's and UMWA's petitions, the judge's original December 

1987 decision, and the judge's February 1989 decision on remand. The motion 

indicates that counsel for the UMWA has authorized counsel for the Secretary 

to state that the UMWA "does not object to the settlement" and that, upon 

Commission approval of the stated settlement terms, "agrees to vacation" of 

the Commission's direction for review of the UMWA's review petition. 

Birchfield's earlier Offer of Judgment represented that the NCA and BCOA 

1429 
had no objection to the relief sought and, subsequent to the filing of the 

joint settlement motion, the AMC submitted a statement of non-objection to 

the settlement motion. 

Oversight of proposed settlements of contested cases is an important 

aspect of the Commission's adjudicative responsibilities under the Mine 

Act (30 u.s.c. § 820(k)), and is, in general, committed to the Commission's 

sound discretion. See, e.g., Pontiki Coal Corp., 8 FMSHRC 668, 674-675 

(May 1986). As we have observed, "our 'responsibility under the Mine Act 

is to ensure that a contested case is terminated, or continued, in accordance with the Act.'" Southern Ohio Coal Co., 10 FMSHRC 1669, 1670 (December 

1988) ("SOCCO"), quoting, YougQiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 

(February 1985). The Commission has granted motions to vacate citations 

and orders and to dismiss review proceedings if "adequate reasons" to do 

so are present. E.g., SOCCO, supra, and authorities cited. Here, the 

real parties in interest, the Secretary and Birchfield, have stated their 

mutual desire to terminate a course of litigation that has become expensive 

and onerous to them. The operator has agreed to pay in full the civil 

penalty originally proposed by the Secretary. None of the parties who 

have filed petitions for review or motions to intervene have raised any 

objection to the proposed settlement. 

In the past, the Commission has vacated enforcement actions and 

directions for review in granting dismissal motions on review. We conclude 

that the nature of the relief sought here is not inconsistent with the 

Commission's inherent powers as an adjudicative body under section 113(d) 

of the Act, 30 U.S.C. § 823(d), and lies within its zone of discretion in 

this legal area. We further conclude that, in light of the unique circumstances of this proceeding, adequate cause exists to grant the parties' 

joint dismissal motion. 

Therefore, upon consideration of the motion, it is granted. Our two 

directions for review in this proceeding are vacated and the underlying 

petitions for review are dismissed. Our prior decision and the judge's 

decisions are also vacated. In view of this action, all other pending 

motions are dismissed as moot. 

~ 

/ 

Richard V. Backley, Commission~r 

~tZ.~~ oyceA:riOyle, ComlliiSSiOer 

1430 
Distrib.ution 

Anthony J. Cicconi, Esq. 

Shaffer & Shaffer 

330 State Street 

P.O. Box 38 

Madison, West Virginia 25130 

William D. Stover, Esq. 

MAE Services 

40 Eagles Road 

Beckley, West Virginia 25801 

Henry Chajet, Esq. 

Doyle & Savit 

919 18th Street, N.W. 

Suite 1000 

Washington, D.C. 20006 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20.005 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

William E. Hynan, Esq. 

National Coal Association · 

1130 17th Street, N.W. 

Washington, D.C. 20036 

Michael T. Heenan, Esq. 

Smith, Heenan & Althen 

1110 Vermont Avenue, N.W. 

Suite 400 

Washington, D.C. 20005 

Mark Ellis, Esq. 

American Mining Congress 

1920 N Street, N.W. #300 

Washington, D.C. 20036 

Administrative Law Judge Gary Melick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1431 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RUSHTON MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Au~ust 24, 1989 

Docket No. PENN 88-99-R 

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

Connnissioners 

DECISION 

BY THE COMMISSION: 

At issue in this contest proceeding ar1s1ng under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine 

Act"), is whether a violation by Rushton Mining Company ("Rushton") of 

30 C.F.R. § 75.1704-2(a), requiring that escapeways follow the "safest 

direct practical" route.out of a mine, was significant and substantial 

in nature. 1/ Connnission Administrative Law Judge Avram Weisberger 

concluded that Rushton violated the regulation but that the violation 

was not significant and substantial. 10 FMSHRC 713 (June 1988)(ALJ). 

We granted the Secretary of Labor's petition for discretionary review, 

which was limited to the issue of whether the judge erred in finding 

that the violation was not significant and substantial. For the reasons 

1/ 30 C.F.R. § 75.1704-2(a) provides as follows: 

In mines and working sections opened on and after 

January 1, 1974, all travelable passageways 

designated as escapeways in accordance with 

§ 75.1704 shall be located to follow, as determined 

by an authorized representative of the Secretary, 

the safest direct practical route to the nearest 

mine opening suitable for the safe evacuation of 

miners. Escapeways from working sections may be 

located through existing entries, rooms, or 

crosscuts. 

1432 
that follow, we affirm the judge's finding. 

Rushton owns and operates the Rushton Mine, an underground coal 

mine in Pennsylvania employing approximately 257 miners. On December 8, 

1987, Donald Klemick, an inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA"), inspected the 2N-3 section of 

the mine. Approximately seven miners were working in rooms 11-15 of 

that section. Klemick found that the primary escapeway designated for 

those miners was approximately 2,100 feet in length, was roundabout in 

nature, and contained four 90 degree turns. See Exh. JX-4. 

Klemick believed that Rushton could have designated a shorter, 

more direct practical route out of rooms 11-15 of the 2N-3 section. 

Tr. 29-30. Accordingly, he cited Rushton for violating section 75.1704-

2. £/ The citation alleged: 

The designated intake escapeway from the 2N-3 002 

section to the intake shaft escape facility was not 

located to follow the safest, direct practical 

route. The escapeway was designated outby from the 

section to station 7737, through crosscuts to 

station 7792, then inby to the shaft a distance of 

about 2100 feet. The safest, direct practical route 

would be from the section traveling in a direct 

route to the shaft of about 500 feet. 

Klemick designated the violation to be of a significant and substantial 

nature because he believed that there would be a reasonable likelihood 

of serious injury in an emergency situation. 

After consultation with MSHA, Rushton abated the violation by 

designating a new escapeway route from the 2N-3 working section to the 

No. 2 shaft. This new route was approximately 500 feet in length and 

involved only one turn. - Exhibit JX-4. In the Secretary's view, this 

new escapeway was not only the most direct route but also the safest and 

most practical. 

After Rushton's mining of rooms 11-15 was completed, mining went 

outby room 11 to a second set of five rooms, and then continued further 

outby to a third set of rooms. For these rooms, Rushton reverted to its 

designation of the original escapeway route for which it had been cited. 

Use of the original Rushton escapeway for the second set of rooms 

involved traveling a distance of 1,600-1,700 feet, while use of the 

escapeway designated for purposes of abatement of the violation at issue 

would have involved traveling a route of 800 feet. On mining the third 

set of rooms, the designated escapeway involved a distance of 1,400 

2/ Klemick's citation alleged a violation of 30 C.F.R. § 75.1704-

Z(b). At the hearing before the judge, the Secretary, without 

objection, moved to amend the citation to allege a violation of 30 

C.F.R. § 75.1704-2(a) in order to conform to the point in time during 

which the affected area of the mine was opened. The judge permitted the 

amendment. Tr. 6-7. 

1433 
feet, while use of the escapeway designated for abatement of the 

violation would have involved a distance of 1,200-1,300 feet. Mine 

Manager Raymond Roeder, Rushton's witness, testified that an inspector 

(not Klemick) examined Rushton's designated escapeway from the second 

set of rooms and that, to his knowledge, Rushton was not cited for 

redesignation of the escapeway originally found to be in violation. 

Tr. 123-24. Roeder also stated that Klemick examined Rushton 1 s 

designated escapeway for the third set of rooms but did not issue any 

citations for the escapeway. Tr. 125-26. 

In his decision, Judge Weisberger concluded that Rushton's cited 

escapeway was in violation of section 75.1704-2(a) because it was not a 

direct route to the shaft. 10 FMSHRC at 718. He also found that the 

escapeway designated in order to abate the violation was direct and less 

than one third the distance of the cited escapeway. 10 FMSHRC at 716-

18. }/ The judge stated: 

In the event [of] a hazard necessitating escape from 

the section, it is clear that an indirect route 

containing three 90 degree jogs and doubling back on 

itself, is a greater impediment to a speedy exit 

from a dangerous situation as opposed to the MSHA 

escapeway, which is direct and less than one third 

of the distance of the Rushton escapeway. As such, 

it must also be considered to be the "safest" within 

the purview of section 1704-2(a) •••• 

10 FMSHRC at 718. The judge further determined, however, that the 

violation was not significant and substantial. He stated: 

Klemick testified that the use of the Rushton 

escapeway, as it is longer than the MSHA one, could 

result in a fatality by a miner being exposed to 

smoke or could result in falls occasioned by the 

rush to leave a dangerous situation. However, in 

essence, he indicated that in the absence of 

specific information, as to a specific hazard, it 

would be difficult for him to tell what would occur 

if one would have to use the Rushton escapeway. As 

such, I must find that the Respondent [Secretary] 

has not met its burden in establishing that the 

violation herein is to be considered significant and 

substantial (see Mathies Coal Co., 6 FMSHRC 1 

(January 1984)). 

10 FMSHRC at 718. 

}/ The judge stated that the length of the cited escapeway was 

approximately 1,700 feet. 10 FMSHRC at 716. The evidence in the 

record, however, is that the cited escapeway was approximately 2,100 

feet, as stated in the citation. See Exhibit JX-4; Tr. 12, 29, 109-10, 

123, 158. 

1434 
No issue as to the fact of violation has been raised before us on 

review. The only question presented is whether the judge erred in 

concluding that the violation was not of a significant and substantial 

nature. The Secretary submits that the seriousness of Rushton's 

violation of the escapeway standard must be evaluated within the context 

of the occurrence of an emergency and in comparison to the escapeway 

subsequently designated. In the Secretary's view, use of the cited 

escapeway in an emergency situation would create a significantly greater 

likelihood of serious injury than would the shorter, more direct 

escapeway designated for purposes of abating the violation. The 

Secretary focuses on the greater length and less straightforward 

configuration of the cited escapeway, and on the additional escape time 

needed for use of the Rushton route. 

A violation is properly designated "significant and substantial" 

if, based on the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature. Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission 

explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

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

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will 

result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably 

serious nature. 

Accord, Austin· Power v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 

1988). 

The third element of the Mathies formula requires "that the 

Secretary establish a reasonable likelihood that the hazard contributed 

to will result in an event in which there is an injury," and that the 

likelihood of injury must be evaluated in terms of continued normal 

mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 

1984). See also Monterey Coal Co., 7 FMSHRC 996, 1001-02 (July 1985). 

The operative time frame for determining if a reasonable likelihood of 

injury exists includes both the time that a violative condition existed 

prior to the citation and the time that it would have existed if normal 

mining operations had continued. Halfway, Inc., 8 FMSHRC 8, 12 (January 

1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). The 

question of whether any particular violation is significant and 

substantial must be based on the particular facts surrounding the 

violation, including the nature of the mine involved. Texasgulf, Inc., 

10 FMSHRC 498, 500-01 (April 1988); Youghiogheny & Ohio Coal Company, 

9 FMSHRC 2007, 2011-12 (December 1987). Finally, the Commission has 

emphasized that it is the contribution of a violation to the cause and 

1435 
effect of.a hazard that must be significant and substantial. U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984). 

Under this precedent and based on our review of the record, we 

conclude that substantial evidence supports the judge's finding that 

Rushton's violation was not significant and substantial in nature. 

The judge's finding of a violation is not at issue on review and, 

therefore, the first element of the Mathies test has been established. 

The second element of Mathies requires the Secretary to prove that the 

violation of section 75.1704 presented a discrete safety hazard. The 

Secretary submits that the length of the cited escapeway and the 

purported inability in an emergency situation to exit the mine quickly 

and directly present a discrete safety hazard. We conclude, however, 

that the Secretary has failed to show that the distance, travel time, or 

any inherent qualities of the cited route posed a discrete safety 

hazard. 

The length of a mine escapeway, in and of itself, is not 

dispositive of the existence of a discrete safety hazard. Insofar as 

this record reflects, the cited escapeway, approximately 2,100 feet in 

length, was the shortest escapeway in the Rushton mine. Tr. 109. The 

length of the primary escapeways to the surf ace from the other five 

working sections of the mine were 11,610 feet, 9,600 feet, 7,060 feet, 

4,750 feet, and 2,470 feet. Tr. 100-01. The length of the mine 1 s 

secondary escapeways from all six sections varied from 9,100 to over 

14,000 feet. Tr. 101. Nothing in this record indicates that the other 

escapeways, all longer than the escapeway at issue (some by a quite 

considerable extent) have been deemed hazardous by MSHA because of their 

distances. See Tr. 101. Thus, the evidence of the length of the cited 

escapeway ca~t be viewed as establishing per sea discrete hazard~/. 

Additionally, all the evidence of record suggests that the cited 

escapeway was in safe condition. Klemick's notes on his December 8, 

1987 visit to the mine indicate that the cited escapeway was "maintained 

in good condition." S. Response to Interrogatories. Klemick testified 

that the escapeway was "in good condition" and that he encountered no 

obstacles along the course of the escapeway that would impede passage. 

Tr. 62-63. Further, Klemick did not issue a citation to Rushton for any 

violation of section 75.1704 requiring that escapeways "shall be 

~/ Moreover, the Secretary did not introduce any evidence comparing 

the times required to travel the cited escapeway or the subsequently 

designated route. Rushton 1 s witness Roeder testified, however, that a 

person in a hurry could traverse the cited route in seven minutes. Tr. 

110. The Secretary has not disputed the accuracy of Roeder's testimony 

on the time required to travel the cited route. Although Roeder 

conceded that it would take less time to travel the new escapeway (Tr. 

140), the fact that there would be some difference between the seven 

minutes travelling the cited route and an unknown, but lesser amount of 

time travelling the new route is not, by itself, probative of a 

"meaningful" delay in reaching the surface. ~Florence Mining Co., 

11 FMSHRC 747, 755-56 (May 1989). 

1436 
maintained in safe condition." Tr. 62. 

While the cited route contains several 90 degree turns, it 

resembles a rectangle in shape. That configuration was not established 

to be so intrinsically confusing as to be a discrete safety hazard. 

Also, other factors indicated advantages of the cited route. Rushton 

presented evidence through a member of the mine safety committee that 

the cited route provided access to the alternative (secondary) escape 

route and possible transportation, but that such access was lacking with 

respect to the route that was designated for abatement of the violation. 

Tr. 169-70; Exhibit JX-4. Furthermore, finding that the cited escapeway 

was located in an intake entry while the MSHA-designated escapeway 

relied upon leakage of air from a hole around a door in the escapeway, 

the judge concluded that the cited escapeway "clearly" provided more 

air. 10 FMSHRC 716-17. 

Finally, with regard to the third and fourth elements of the 

Mathies test, we conclude that the Secretary also has failed to show 

that the violation created a reasonable likelihood of reasonably serious 

injury. The Secretary argues that, assuming an emergency, there was a 

reasonable likelihood of serious injury due to the violation. The 

reasons set forth above substantiating the Secretary's failure to prove 

a discrete safety hazard apply with equal force here. The Secretary has 

failed to show that differences in distance, travel time, or any 

inherent qualities between the cited route and the new route posed a 

threat involving a reasonable likelihood of reasonably serious injury in 

the event of an evacuation. We emphasize in this regard that, as the 

judge noted (10 FMSHRC at 718), Klemick was extremely vague as to the 

type of injury that he believed was likely to occur (see Tr. 23-24, 61) 

and he shed little, if any, light on the likelihood of any injury or its 

seriousness. For example Klemick stated that "it's very difficult, if 

not impossible, to state what kind of injury [might occur]." Tr. 24. 

1437 
For the reasons set forth above, we conclude that substantial 

evidence supports the judge's finding that the Secretary did not prove 

the violation of section 75.1704-Z(a) was significant and substantial in 

nature and we affirm his decision. 

Distribution 

Colleen A. Geraghty 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Joseph Yuhas, Esq. 

Rushton ?fining Comoanv 

P.O. Box 367 

Ebensburg, PA 15931 

Richard 

Jg':Tt:iie~o1::aA 

Connnissioner 

1438 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 24, 1989 

Docket No. WEVA 87-343 

CONSOLIDATION COAL COMPANY 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding ar1s1ng under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" 

or "Act"), involves three citations issued by the Department of Labor's 

Mine Safety and Health Administration ("MSHA") to Consolidation Coal 

Company ("Consol") at its Arkwright No. 1 Mine in Osage, West Virginia, 

for alleged violations of mandatory electrical safety standards. Consol 

contended before Commission Administrative Law Judge Avram Weisberger 

that, because the electrical equipment cited for the violations was 

exclusively owned and operated by its independent contractor, FrontierKemper, Inc. ("Frontier"), MSHA should not have cited Consol for 

Frontier's alleged violations. Judge Weisberger rejected Consol's 

arguments as to liability and determined, inter alia, that Consol had 

violated the standards in all three instances. 10 FMSHRC 745 (June 

1988)(ALJ). The Commission granted Consol's petition for discretionary 

review, which asserted that the judge erred in finding Consol liable, 

without regard to fault, for its contractor's activities. We conclude 

that Consol could properly be cited for the violations in question, and 

we affirm. 

The underlying facts are not in dispute. Consol contracted with 

Frontier to construct, by "raise boring" methods, an 830-foot deep-mine 

ventilation shaft in the Jake's Run area of the Arkwright No. 1 Mine. 

"Raise boring," also referred to as "up-drilling," is a method of shaft 

building whereby the shaft is drilled to the surf ace from an underground 

location, following a small diameter pilot hole. Frontier is one of the 

1439 
few specialists in this particular method of shaft drilling and 

construction. 

At a preconstruction conference, Frontier and Consol discussed 

Frontier's requirements for performing the work and apportioned 

responsibilities for roof/rib control, ventilation, and the conduct of 

preshift and on-shift examinations. It was agreed that electric power 

would be brought to the work site via Consol's power center, that 

Frontier would run its cables from the power center, and that Frontier 

employees would not leave their work site during the shift. Frontier 

also agreed that its certified electricians would conduct inspections of 

Frontier electrical equipment and that Consol would conduct all other 

required examinations. Subsequently, Consol performed those other 

examinations, hazard-trained Frontier personnel, transported Frontier 

personnel in and out of the mine, and instructed Frontier personnel as 

to escape routes. Consol personnel did not direct the Frontier work 

force in any way. 1/ 

On June 9 and 10, 1987, MSHA Inspector Edwin Fetty, accompanied by 

MSHA Inspector Alex Volek, inspected the Main Butt Section in the Jake's 

ll Consol management at the Arkwright No. 1 Mine based its 

relationship with Frontier upon a Consol memorandum, "Inspection of 

Independent Contractors," issued to mine personnel on or about 

December 31, 1985. The memorandum provides in pertinent part that: 

[T]he following are reconunended when inspecting 

Consol properties on which independent contractors 

are working: 

No inspection of the workplace of contractor's 

employees should be made; 

If you casually observe contractor's employees 

either conunitting an unsafe act or violating state 

or federal statutes or regulations, the contractor's 

supervisor may be so informed. Consol personnel 

should not attempt to require the contractor or the 

contractor's employees to make corrections, or 

otherwise take specific actions; 

If it appears that Consol employees may be 

endangered by the actions of contractor's employees, 

all endangered Consol employees should be withdrawn 

from the affected area(s) and the contractor's 

supervisor should be informed of the actions taken 

and the reasons for taking such actions and; 

If it appears that Consol property is endangered by 

the actions of the contractor's employees the 

contractor's supervisor should be notified. 

Exh. RX-4 (emphasis in original). 

144Q 
Run area of the Arkwright Mine. 

electrical/mechanical problems, 

inspector had informed him of a 

drilling site. Inspector Volek 

independent contractors because 

Fetty, who specializes in 

made the spot inspection because another 

reported ignition at the Frontier uphad been assigned to "key in" on 

their accident rate had risen. 

Inspector Fetty observed the violative conditions in issue on 

June 9 and took enforcement actions against Frontier on that date, 

including issuance of a withdrawal order and citation pursuant to 

section 104(d) of the Mine Act. 30 U.S.C. § 814(d). Because no 

responsible Consol official was present at the time, he returned the 

next day and issued three section 104(a) citations to Consol. Frontier 

paid the civil penalties proposed by MSHA for its violations but Consol 

contested the alleged violations issued to it. 

With respect to the first violation, Inspector Fetty found that an 

oil pump motor on a rotary blower was not equipped with a fail-safe 

device designed to cause a circuit breaker to open when either the pilot 

or the ground wire was broken. The citation issued to Consol pursuant 

to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleged a 

violation of 30 C.F.R. § 75.902. ~/ Inspector Fetty also opened the 

circuit breaker box for a 540 amp, 500 hp. blower motor owned by 

Frontier and observed that the circuit breaker was set at 12,000 amps. 

The inspector testified that the proper setting for a circuit breaker is 

from five to ten times the amperage on the equipment serviced by the 

circuit, so that the circuit breaker should have been set for a maximum 

of 5,400 amps. The citation issued to Consol pursuant to section 104(a) 

of the Mine Act alleged a violation of 30 C.F.R. § 75.518-1. 11 In 

addition, the inspector examined the conducting cable to the same blower 

motor. He determined that the cable was inadequate to carry safely the 

540 amps drawn by the blower motor. The citation issued to Consol 

pursuant to section 104(a) of the Act alleged a violation of 30 C.F.R. 

~/ 30 C.F.R. § 75.902 provides in pertinent part: 

[L]ow- and medium-voltage resistance grounded 

systems shall include a fail-safe ground check 

circuit to monitor continuously the grounding 

circuit to assure continuity which ground check 

circuit shall cause the circuit breaker to open when 

either the ground or pilot check wire is broken •..• 

J/ 30 C.F.R. § 75.518-1 provides in pertinent part: 

A device to provide either short circuit 

protection or protection against overload which does 

not conform to the provisions of the National 

Electric Code, 1968, does not meet the requirement 

of§ 75.518 •••. 

1441 
§ 75.513-1. !!_/ 

At the hearing, Fetty testified that he issued the above citations 

to Consol in addition to Frontier because the violations occurred in 

Consol's mine, Consol employees were working there a portion of the 

time, and any of the cited conditions could affect other employees and 

areas of the mine if, for example, a fire occurred. Inspector Volek 

understood that no Consol people were allowed into the Frontier work 

area to do anything or to direct the Frontier employees but stated that 

Consol had overall responsibility for safety of the mine and should have 

made an effort to ensure Frontier's compliance with standards~ Volek 

indicated that in determining whether to recommend that Fetty issue the 

citations to Consol, he considered the nature of the violations, 

Consol's work relationship with Frontier, and the fact that the 

violations occurred underground and could pose a potential hazard to 

Consol's own employees. Volek testified that there are some situations 

where only one party -- the production-owner or the independent 

contractor would be cited, but that in some circumstances, as here, 

both would be held responsible. 

Before the judge, Consol conceded that it was "the rule" of the 

United States· Courts of Appeals for the 4th, 9th and D.C. Circuits that 

"the production operator can be held strictly liable for the violations 

of its independent contractor, permitting the Secretary of Labor to cite 

either the owner or the contractor or both," and asserted that it did 

not contest the fact that Consol is an "operator" under the Mine Act. 

Consol Post-Hearing Brief at 12-13. Consol argued, however, that the 

appropriate inquiry was whether the Secretary's enforcement discretion 

was properly exercised in this case. Contending that it was not, Consol 

asserted that Commission precedent, particularly Phillips Uranium Corp., 

4 FMSHRC 549 (AprH 1982), in which the Commission reversed the judge 

who had upheld the citations against the operator, permitted a 

Commission judge to consider the circumstances relevant to the citing of 

a production-operator as opposed to its independent contractor and that 

the judge should adhere to Commission guidance in this regard. 

The judge rejected Consol's arguments and determined that the 

rationale in Phillips, supra, was inapposite to the instant proceeding. 

He stated that Phillips involved a situation where only the operator was 

cited for violations in connection with shaft construction by an 

independent contractor. The judge held that Phillips was not 

controlling on the issue of whether the operator and the independent 

contractor, who had been separately cited for the violations, were 

jointly liable under the Mine Act. 10 FMSHRC at 749. The judge 

concluded that Consol was properly cited by the Secretary, based on a 

line of court and Commission cases holding, in essence, that "the owner 

!!_/ 30 C.F.R. § 75.513-1 provides in part that: 

An electric conductor is not of sufficient size to 

have adequate carrying capacity if it is smaller 

than is provided for in the National Electric Code, 

1968 •..• 

1442 
of a mine is liable for the independent contractor's safety violations 

without regard to the owner's fault." Id. The judge cited Bituminous 

Coal Operators Association v. Secretary of Interior, 547 F.2d 240 (4th 

Cir. 1977); International Union, United Mine Workers of America v. 

FMSHRC, 840 F.2d 77 (D.C. Cir. 1988); Cyprus Indus. Minerals Company v. 

FMSHRC, 664 F.2d 1116 (9th Cir. 1981); Old Ben Coal Company, 1 FMSHRC 

140 (October 1979), aff'd No. 79-2367 (D.C. Cir. January 6, 1981); and 

Republic Steel Corporation, 1 FMSHRC 5 (April 1979). 10 FMSHRC at 749-

50. The judge went on to affirm the three citations and assess civil 

penalties of $20 for each of the three violations. 

On review, Consol does not take issue with the Secretary's 

authority to cite either the owner, the independent contractor or both 

for violations of the Mine Act. Rather it challenges whether the 

Secretary properly exercised that authority in choosing to cite Consol 

as well as its independent contractor. Court precedent makes clear that 

the Secretary has retained wide enforcement discretion and that courts 

have traditionally not interfered with the exercise of that discretion. 

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 

1986). In this instance, the Secretary pursued enforcement action 

against both a production operator and its contractor for electrical 

violations occurring in an underground mine setting wherein the 

employees of both the production operator and the independent contractor 

were exposed to potential hazards occasioned by the violations. We have 

carefully reviewed the record, the judge's decision, and the parties' 

arguments. We hold that the judge's conclusion that the Secretary's 

discretion was not abused in citing Consol in addition to Frontier for 

these particular violations is supported by the record, swnmarized 

above, relating to the violations and the inspectors' reasons for citing 

both parties, and is also supported by applicable precedent. See, ~' 

Old Ben, supra, 1 FMSHRC at 1481-86; Intl. U., UMWA v. FMSHRC, supra, 

840 F.2d at 83; Brock v. Cathedral Bluffs Shale Oil Co., supra, 796 F.2d 

at 537-38; BCOA v. Secretary, supra, 547 F.2d at 246. 

1443 
Accordingly, we affirm. 

Distribution 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson ~lvd. 

Arlington, VA 22203 

Michael R. Peelish, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

~~ FOrd B. ~ , Chairman 

Richard 

~W'V~~/ V. Backley,'~r 

L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1444 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

BETHENERGY MINES, INC. 

August 25, 1989 

Docket Nos. PENN 87-94 

PENN 87-200-R 

PENN 87-201-R 

PENN 88-38 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding arises 

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

seq. (the "Mine Act"), and involves three alleged violations of 30 

C.F.R. § 75.1704, the mandatory escapeways standard for underground coal 

mines. lf The issue is whether the cited areas are "working sections" 

lf Section 75.1704 essentially restates section 317(f)(l) of the Mine 

Act, 30 U.S.C. § 877(f)(l), and provides: 

Except as provided in §§ 75.1705 and 75.1706, at 

least two separate and distinct travelable 

passageways which are maintained to insure passage 

at all times of any person, including disabled 

persons, and which are to be designated as 

escapeways, at least one of which is ventilated with 

intake air, shall be provided from each working 

section continuous to the surf ace escape drift 

opening, or continuous to the escape shaft or slope 

facilities to the surface, as appropriate, and shall 

be maintained in safe condition and properly marked. 

Mine openings shall be adequately protected to 

prevent the entrance into the underground area of 

1445 
within the meaning of the standard and, thus, subject to the 

requirements of section 75.1704. 

Commission Administrative Law Judge Roy J. Maurer concluded that 

the subject areas were not "working sections" and vacated the two 

citations and the order of withdrawal containing the violations and 

dismissed the associated civil penalty proceeding. 10 FMSHRC 224 

(February 1988) (ALJ). We granted the Secretary of Labor's petition for 

discretionary review and heard oral argument. For the reasons that 

follow, we affirm the judge. 

I. 

The facts underlying the cited conditions in this matter are 

essentially uncontroverted. 

Docket No. PENN 87-94 

Several weeks before October 7, 1986, BethEnergy Mines, Inc. 

officials began rehabilitating the 1 Right Section in the Mine 84 

Complex ("Complex") and assigned workers there, on an intermittent 

basis, to ready the section for resumption of coal production, which had 

ceased ten months earlier in December 1985. On October 7, 1986, an 

inspector of the Department of Labor's Mine Safety and Health 

Administration ("MSHA"), Lloyd Smith, conducted a regular quarterly 

inspection of the Livingston Portal area of the Complex. Before he 

proceeded underground, the inspector was advised by a company official 

that a crew had been sent into the 1 Right Section. There were several 

things that needed to be done on that section before coal production 

could begin, including clean-up work. 

Upon arriving at the section, Smith observed the crew, as well as 

a mechanic and several construction workers. A continuous mining 

machine, a roof bolting machine, a shuttle car, an air pump, and a belt 

conveyor were present in the area. A load center was also present but 

it was not yet operable. Because the load center was not operable, 

there was no power in the 1 Right Section. In addition, the belt 

conveyor was inoperable because there was no hopper at the end of the 

belt to receive coal from the shuttle car. Because of various 

difficulties, coal production on the section was not actually resumed 

until December 1986. 

Inspector Smith reviewed the section map and travelled the No. 2 

and No. 3 entries, the routes identified on the map as the designated 

the mine of surface fires, fumes, smoke, and 

floodwater. Escape facilities approved by the 

Secretary or his authorized representative, properly 

maintained and frequently tested, shall be present 

at or in each escape shaft or slope to allow all 

persons, including disabled persons, to escape 

quickly to the surface in the event of an emergency. 

(Emphasis added.) 

1446 
intake air and alternate escapeways. Smith discovered that the 

escapeways were obstructed by two seven-foot high metal overcasts with 

no means for traversing them. ~/ Smith, believing the 1 Right Section 

to be a "working section" requiring two travelable escapeways 

"maintained to insure passage at all times of any person," concluded 

that the obstructed escapeways violated section 75.1704, and he cited 

BethEnergy for a violation of the standard. Subsequently, BethEnergy 

abated the violation by installing steps with handrails at each 

overcast. 

Docket No. PENN 87-200-R 

Some nine months later, on July 27, 1987, MSHA Inspector William 

Brown conducted an inspection of the same general area of the Complex. 

This inspection took place at the end of a month long mine shutdown. 

Prior to travelling underground, Brown was advised by a union safety 

committeeman that a roof fall had occurred in the designated intake air 

escapeway for the 53 Parallel Section of the Complex and that miners 

were working in the section. The roof fall blocked the escapeway at the 

No. 74 stopping. Inspector Brown went to an area where three miners 

were grading non-combustible material from the bottom to permit a 

mantrip to extend into the Complex 1 s new A-Left Section. Two masons 

were constructing an overcast nearby. Because the mine was at the end 

of its shutdown status, no coal production was underway, although coal 

had been mined there previous to the shutdown and further coal 

production was planned after the shutdown ended. (In fact, production 

resumed in the A-Left .Section approximately eight days later.) The 

inspector believed that the area where the miners were working was a 

"working section," and he concluded that the obstructed intake escapeway 

violated section 75.1704. Therefore, he cited BethEnergy for violating 

the standard. 

Docket No. PENN 87-201-R 

After leaving the 53 Parallel area, Inspector Brown proceeded to 

the 3 Right Longwall Section, which was serviced by the same intake air 

escapeway as the 53 Parallel section. Arriving there, Inspector Brown 

determined that miners were installing roof supports and preparing the 

section for longwall mining. However, coal production was not yet 

possible because only one half of the roof support shields were 

installed at the face, the headgate drive and the shear, used for 

cutting coal, were not at the face (they were in BethEnergy's shops), 

and, although the pan line was installed, the conveyor was not connected 

to the mining equipment •. In fact, coal production did not commence on 

the 3 Right longwall section until some eight days after the inspection. 

Believing the longwall section to also be a "working section" and 

because the designated intake air escapeway for the section was 

impassable, the inspector cited BethEnergy for another violation of 

~/ An overcast is defined as an "enclosed airway to permit one air 

current to pass over another one without interruption." Bureau of 

Mines, U.S. Dep't of Interior, Dictionary of Mining, Mineral, and 

Related Terms 780 (1986). 

1447 
section 75.1704. 

II. 

After a hearing in Docket No. PENN 87-94 and in Docket Nos. PENN 

87-200-R and PENN 87-201-R, Judge Maurer issued his decision holding 

that in each instance the Secretary failed to prove a violation of 

section 75.1704. Because section 75.1704 requires escapeways to be 

provided from each "working section," the judge and the parties agreed 

that existence of the three alleged violations turned in each instance 

upon whether the cited area was a "working section" within the meaning 

of the standard. The judge initiated his analysis of this issue by 

referring to 30 C.F.R. § 75.2(g)(3), the regulatory definition of 

"working section."]/ The judge noted that the definition of "working 

section" dell.ends in turn upon the definition of "working face," which is 

defined in the regulations and the Mine Act as "any place in a coal mine 

in which work of extracting coal from its natural deposit in the earth 

is performed during the mining cycle." 30 C.F.R. § 75.2(g)(l); 30 

U.S.C. § 878(g)(l). Because the term "mining cycle," as used in the 

definition of "working face," is not defined in the Mine Act or the 

Secretary's regulations, the judge considered definitions of the term 

offered by the witnesses and agreed with those that defined the term 

"mining cycle" as meaning those mining operations most immediately 

connected with the extraction of coal -- supporting the roof, cutting 

and loading the coal, and transporting the coal out of the mine. 

10 FMSHRC at 230-32. The judge rejected BethEnergy's argument that 

actual coal extraction must have commenced in order for a working face 

or a working section to exist. However, noting that "in order to have a 

working section one must have a working face," the judge stated that the 

"term is closely related to actual or at least imminent coal production 

at the face, i.e., roof bolting, cutting, loading and/or transporting 

coal out of the mine." 10 FMSHRC at 232. 

In analyzing whether each of the cited areas had the capability 

for imminent production, the judge utilized the test proffered by the 

Secretary's witnesses John DeMichiei, MSHA District Manager, and MSHA 

Inspector Lloyd Smith that the operator must at least have assembled the 

equipment that it needs to produce coal. 4/ 10 FMSHRC at 231-32, 233, 

237. -

Regarding Docket No. PENN 87-94, the judge found that on 

October 7, 1986, in the 1 Right Section, although much of the mining 

equipment necessary to produce coal was present on the section, not all 

11 30 C.F.R. § 75.2(g)(3), which restates section 318(g)(3) of the 

Mine Act, 30 U.S.C. §§ 878(g)(3), defines "working section" as follows: 

"Working section" means all areas of the coal mine 

from the loading point of the section to and 

including the working faces. 

~/ At the time that he testified, DeMichiei was an MSHA Subdistrict 

Manager. Subsequently, he was promoted to District Manager. 

1448 
of the necessary equipment was present or operable. Specifically, he 

found that there was no bin or hopper at the end of the conveyor belt 

enabling the shuttle car to unload coal onto the belt. He further found 

that the load center that would provide power to the mining equipment 

was inoperable. 10 FMSHRC at 228. In addition, he found that 

permissibility checks had to be done on the equipment, ventilation had 

to be adjusted, waterlines established, and rock dusting completed. Id. 

He also noted that BethEnergy did not actually produce coal in the 

section until December 1986, some two months after it was cited for the 

violation. He concluded, therefore, that at the time of citation on 

October 7, 1986, coal production in the section was not actual, 

imminent, or even contemplated. 10 FMSHRC at 232. The judge concluded 

that the 1 Right Section on that date had no working face or loading 

point and, therefore, that the Secretary had failed to prove a violation 

of section 75.1704. 10 FMSHRC at 232-33. 

Regarding Docket No. PENN 87-200-R, the judge noted that while the 

Secretary referred to the alleged violation as having occurred in the 53 

Parallel Section, BethEnergy referred to the same area as the A-Left 

Section. The judge held that the nomenclature of the area did not 

matter, and that the important factors were whether a working face and a 

load point were present in the area thus qualifying it as a working 

section. 10 FMSHRC at 234. The judge found that the A-Left faces were 

"working faces." He also found that there was a loading point that 

would be used for removing coal from the A-Left faces during production. 

10 FMSHRC at 235-36. He concluded, however, that because the miners 

working in the area of the grading job were working outby this loading 

point, and the definition of "working section" only encompasses areas 

from the face to the loading point, they were not working in an area 

that could be termed a "working section" and, therefore, escapeways were 

not required. 10 FMSHRC at 235-36. 

In Docket No. PENN 87-201-R, the judge reiterated that the term 

working face "implies at least imminent capability of coal production 

from that face," and noted the Secretary's concession that at the time 

of the alleged violation BethEnergy did not have assembled the equipment 

necessary to produce coal in the 3 Right Longwall Section. 10 FMSHRC at 

237. The judge held, therefore, that the Secretary failed to prove a 

violation of section 75.1704. 

III. 

On review, the Secretary argues that the judge erred in defining 

the term "working section" by placing an unduly restrictive definition 

upon the term "mining cycle." The Secretary contends that the judge's 

conclusion that "mining cycle activity ..• is limited to 'roof bolting, 

cutting, loading and/or transporting coal out of the mine,' ••. is 

error." PDR 7. The Secretary also argues that the judge failed to 

accord the Secretary's interpretation of section 75.1704 due deference. 

In addition, the Secretary argues that the judge's holding in Docket No. 

PENN 87-200-R, that no violation of section 75.1704 occurred because the 

miners were working outby the working section, improperly focuses upon 

the location of the miners rather than the existence of the working 

section. 

1449 
BethEnergy responds that the judge properly interpreted the 

meaning of "working section" in holding that an area of a mine does not 

become a "working section" for the purpose of section 75.1704 until the 

equipment necessary to produce coal is present in the area and 

production is imminent. BethEnergy contests the Secretary's claim to 

deference by pointing to conflicting testimony by the Secretary's 

witnesses as to the appropriate definition of "mining cycle" and as to 

when a working section comes into existence. BethEnergy also asserts 

that substantial evidence supports the judge's finding in Docket No. 

PENN 87-200-R that the area cited by the inspector at the grading job 

was not a working section. 

IV. 

All underground mines have routes of ingress and egress that can 

be used in emergencies whether or not the miners using them are located 

in working sections. These routes must be shown on a map posted where 

all miners can acquaint themselves with them. 30 C.F.R. § 75.1704-2(d). 

In addition, practice drills must be conducted so that each miner is 

familiar with the evacuation system. 30 C.F.R. § 75.1704(e). As 

counsel for the Secretary acknowledged at oral argument, even though the 

escapeways at issue here were unavailable for use by miners, other 

routes were available. Oral Arg. Tr. at 17. However, the presence of 

these various evacuation routes does not relieve an operator from the 

duty to comply with section 75.1704, i.e., to provide two designated 

escapeways from each working section of a mine. 

Section 75.1704 provides in pertinent part that "at least two 

separate and distinct travelable passageways shall be provided from 

each working section ..•• " The term "working section" first appears in 

conjunction with a federal mining escapeways standard in section 6.g. of 

the 1953 Federal Mine Safety Code for Bituminous Coal and Lignite Mines 

of the United States, issued by the Bureau of Mines, United States 

Department of the Interior. Earlier federal mining laws and regulations 

used the terms "active sections" and "active face areas" to denominate 

areas of the mine now generally encompassed within the definition of 

"working section" set forth in section 75.2(g)(3). See, ~, Federal 

Coal Mine Safety Act Amendments of 1952, Pub. L. No. 82-552, 66 Stat. 

692 (1952). 

"Working section" was accorded its present statutory definition in 

the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801, 

878(g)(3) (1976)("Coal Act"). The Senate Subcommittee report stated 

that the Bureau of Mines provided the definition to Congress and advised 

that the term was one "commonly understood in the coal mining industry." 

S. Rep. No. 411, 91st Cong. 1st Sess. 86, reprinted in Senate 

Subcommittee on Labor, Committee on Labor and Public Welfare, 91st Cong. 

1st Sess., Part I Legislative History of the Federal Coal Mine Health 

and Safety Act of 1969, at 212 (1975). The Coal Act's definition of 

working section was also promulgated by the Secretary of the Interior as 

part of the Coal Act's mandatory safety standards. 30 C.F.R. 

§ 75.2(g)(3). Subsequently, the definition was carried over into the 

Mine Act, 30 U.S.C. § 878(g)(3), and remains part of the Secretary's 

mandatory safety standards for underground coal mines. 30 C.F.R. 

1450 
§ 75.2(g)(3). 

A search of the legislative histories of the various mine safety 

statutes, mine safety regulations, and the Secretary's published 

interpretations of the regulations reveals no further elucidation of 

this "commonly understood" term prior to the inception of the 

controversy now before us. 

Notwithstanding the "common understanding" of the meaning of the 

term and the fact that it has been a part of the federal mine escapeway 

requirements for over 35 years, the judge in this proceeding was 

presented with no less than four distinct constructions of "working 

section," and three of these were propounded by MSHA personnel. MSHA 

witnesses Smith and DeMichiei testified that a working section comes 

into existence when the section contains a loading point and mining 

equipment integral to the coal extraction process, and that actual coal 

extraction is not required. Contradicting Smith and DeMichiei were the 

Secretary's other witnesses, former MSHA District Manager Don Huntley 

and Inspector Brown. Huntley testified that in his view section 75.1704 

is applicable when the "first event" that facilitates extraction of coal 

from an area takes place, however minor that event may be. According to 

Huntley, the "first event" may not necessarily involve roof bolting, 

cutting or loading, or the movement of equipment necessary for these 

operations into the cited area; rather, it may include ancillary 

activity outby the loading point, such as belt or track installation 

that will ultimately facilitate the extraction of coal. Huntley stated 

that his definition could be interpreted to include all areas of the 

mine. Tr. III at 469. MSHA Inspector Brown asserted that the standard 

applies once a potential working section is delineated; i.e., by 

identifying a particular face and its attendant loading point as 

discrete geographical locations regardless of whether equipment has been 

moved into the area. On the other hand, BethEnergy's witness, Mine 

Superintendent Thomas Mucho testified that a "working section" exists 

for purposes of section 75.1704 only when actual coal extraction has 

commenced in an area of a mine containing a working face and a loading 

point. From BethEnergy's point of view, two escapeways need not be 

established until the operator starts his equipment and commences 

mining. 

In view of the divergent "definitions" of "working section" 

offered at the hearing by the Secretary's witnesses, we cannot conclude 

that the further refined interpretation of this term urged by counsel 

for the Secretary on review -- that "working section" be defined broadly 

to encompass areas of the mine between the working face and loading 

point where the work of preparing, maintaining, or disassembling the 

section is occurring, regardless of whether coal is being produced or 

the necessary equipment is present (Sec. Br. at 11, 21; Oral Arg. Tr. 

at 6) -- is a longstanding or consistent departmental interpretation 

justifying the deference that the Secretary claims is merited here. 

See, ~' I.N.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987); American 

Mining Congress v. EPA, 824 F.2d 1177, 1182 (D.C. Cir. 1987). 

Indeed, we note that on January 27, 1988, after this matter had 

been briefed to the judge, the Secretary published a proposed revision 

1451 
of the escapeways standard. 53 Fed. Reg. 2704-05 (1988). The revision 

retains the existing requirement that at least two travelable 

passageways in each mine be designated and maintained as escapeways from 

each working section. In connection with this proposed revision, MSHA 

has set forth, apparently for the first time, a written interpretation 

of when the requirements of section 75.1704 become applicable. In a 

Notice of Public Hearings on the proposed revisions the following 

appears in Section D.: "As under the existing provisions, MSHA intends 

that the proposal would apply not only to areas where coal is being 

produced, but to all areas where miners are working underground." 53 

Fed. Reg. 16873 (emphasis added). This interpretation of the purported 

broad reach of the existing escapeway provision was, however, disavowed 

by counsel for the Secretary at oral argument before us. Oral Arg. Tr. 

at 10-12, 51. Furthermore, at a public hearing on the proposed standard 

on June 6, 1988, the following MSHA position was stated: 

MSHA wishes to clarify its position with respect to 

the proposed requirement on escapeways which would 

retain from the existing rules that two escapeways 

be provided to each working section. MSHA believes 

that the existing rule and the proposal would 

require escapeways to be maintained during the 

installation and removal of mining equipment as well 

as during the actual production and extraction 

phase. 

MSHA intends to clarify the final rule to remove any 

possible ambiguity with this proposed provision. 

That is, any ambiguity that the escapeway would not 

have to be maintained during the process of getting 

the equipment ready for production. 

Submission of counsel for Secretary to Commission, Document 3 (March 17, 

1989) (emphasis added). These statements highlight, in our view, the 

Secretary's failure to articulate a consistent departmental position 

regarding the circumstances under which the requirements of section 

75.1704 apply. 

Given these varying interpretations offered by MSHA, an operator 

could claim with some force that it had no notice of the standard of 

conduct expected of it by MSHA under the regulation. Indeed, the 

chronology of events in this proceeding starkly reflects the result of 

MSHA's equivocal approach to enforcement. The first alleged violation 

was cited in October 1986, and an evidentiary hearing on the violation 

was held before the second and third citations were issued in July 1987. 

District Manager DeMichiei testified at that first hearing regarding the 

requirements of section 75.1704. When the subsequent violations were 

being cited, BethEnergy officials argued to the inspector that in 

determining whether the requirements of section 75.1704 were applicable 

to the involved area of the mine, they had relied upon the criteria for 

compliance as testified to by DeMichiei at the previous hearing. 

Subsequently, at the hearing on the second and third cited violations, 

the Secretary's witnesses either disavowed or distinguished DeMichiei's 

criteria. In fact, MSHA witness Huntley testified that he could 

1452 
understand how BethEnergy officials, relying on DeMichiei's testimony, 

could reasonably have concluded that escapeways were not necessary until 

there was "adequate equipment on the section." Tr. III at 461. We 

believe that the above progression vividly illustrates the difficulties 

BethEnergy faced in attempting to comply with section 75.1704. 

BethEnergy cannot lightly be presumed to be aware of what the standard 

required when the Secretary's own witnesses were so uncertain and in 

such wide disagreement as to the meaning of "working section." See Jim 

Walter Resources, 9 FMSHRC 903, 908 (May 1987). 

Given the absence of any consistent Secretarial interpretation of 

the meaning of the standard meriting deference, the standard must be 

interpreted in a reasonable manner, giving effect to its wording and 

intended safety purpose. As the judge essentially found, all relevant 

factors pertaining to the status of the cited area of a mine must be 

considered. In general, the record suggests that the following broad 

factors are chief among those bearing on whether an area of a mine is a 

"working section": the hazards associated with the work being done in 

the area (hazards); the geographical components of the area (location); 

the physical components of the area and their functional readiness 

(capability); and the development of the area with respect to actual 

production (timeliness). 

For example, the hazards associated with the work being done in 

the area include the increased dangers associated with the ongoing 

activities in a section. As acknowledged by counsel for the Secretary 

at oral argument, the activities associated with reasonably inuninent 

coal production introduce increased hazards to the particular area of 

the mine where production takes place. Oral Arg. Tr. at 12. It is the 

presence of the increased hazards to miners attendant to actual or 

reasonably close coal production that form a pragmatic basis for the two 

escapeways requirement of section 75.1704. It is then that methane is 

more likely to be released in larger quantities during extraction of 

coal at the face. Also at this time, there may be an increase in the 

generation of suspended coal dust, an increase in the possibility of 

sparking, and an increased possibility of exposure to unsupported roof. 

The geographical components of a working section, as delineated in 

section 75.2(g)(3), are the existence of an identifiable face from which 

coal is or will be extracted, as well as a section loading point. The 

physical components of an area and their functional readiness relate to 

the presence of those mechanical mining components integral to the 

method of extraction contemplated in the identified location. In this 

regard, the presence of a functioning power center, a functional loading 

point connected to the mine 1 s main haulage system, and necessary roof 

support equipment (such as shields where longwall mining is involved) 

are appropriate indicators of a section's capability. On the other 

hand, the location of equipment that merely has to be tranuned into 

position -- such as a continuous mining machine, roof bolter or shuttle 

car -- is not necessarily dispositive of the "capability" of a section 

to extract coal. Timeliness is linked to capability and refers to the 

inuninence of production. We agree with the judge that while actual 

production is not necessary, the term "working section" is inextricably 

linked to the term "working face" and that term, we conclude, implies 

coal production that is reasonably close in time. Once production is 

1453 
reasonably close, mechanical and electrical problems that temporarily 

interrupt the otherwise established capability of a section to produce 

coal do not relieve the operator from compliance with the mandates of 

section 75.1704. Other relevant factors also include the status of the 

mine's operations at the time of the alleged violation and any evidence 

as to the operator's plan for establishing unobstructed escapeways prior 

to the start of production activities. See Oral Arg. Tr. at 23-24. 

v. 

Weighing the facts presented in these proceedings in light of such 

factors, we conclude that substantial evidence supports the judge's 

finding in each instance that BethEnergy did not violate section 

75.1704. We note generally that the mine, or in the case of the first 

citation, the area of the mine where the alleged violation occurred, was 

in a state of shutdown at the time of each citation and BethEnergy was 

maintaining and readying the area for future coal production. Also, 

there is no evidence that BethEnergy would have begun coal production 

with the escapeways remaining in their obstructed state. Counsel for 

the Secretary admitted as much in oral argument before us. Oral Arg. 

Tr. at 24. 

Specifically, the violation alleged in Docket No. PENN 87-94 

concerned the 1 Right Section. In this section, there existed 

identified faces from which coal was to be extracted, as well as a 

loading point. However, the loading point was not functional because 

the hopper or bin needed to permit unloading of coal from shuttle cars 

had yet to be constructed and the power center was inoperable. Further, 

as the judge noted, mining was not resumed until December 1986. Thus, 

there is ample support in the record for a finding that at the time of 

citation the section was not capable of coal extraction and that 

production was not reasonably close in time. Moreover, setting up the 

belt, conducting permissibility examinations, and moving equipment 

operations underway when the inspector issued his order -- are not the 

type of mining activities generally associated with the increased 

hazards of the traditional mining cycle -- roof bolting, cutting, 

loading and/or transporting coal out of the mine. 

The violation alleged in Docket No. PENN 87-200-R covered an area 

where miners were grading the entry and two miners were working nearby 

on overcasts. The judge concluded that the miners were not physically 

located in an area that could properly be denominated a "working 

section" for purposes of section 75.1704. He determined that although 

the A-Left Section had an identifiable face and a loading point, the 

miners referred to by the inspector in the citation were outby the 

physical limits of the A-Left Section. 

We agree with the Secretary that the judge erred in focusing 

solely on the location of the maintenance crew in determining whether 

escapeways were required in the A-left section at the time of citation. 

As discussed above, the proper focus must be on an assessment of all the 

relevant factors bearing on whether an area of the mine is a working 

section. Nevertheless, we conclude that substantial evidence supports 

the finding that the A-left was not then a working section. In addition 

1454 
to the fact that the only work being performed in the area was 

maintenance work during the mine shutdown, the A-left was not capable of 

coal production because, as part of the maintenance work, the 53 belt 

conveyor, necessary for removing coal from the section, was 

disassembled. Tr. III at 485-86, 490. In fact coal was not produced in 

the A-left until a week after the citation was issued. Id. at 508. 

The violation alleged in Docket No. PENN 87-201-R occurred in the 

3 Right Longwall Section. The inspector determined that six miners were 

installing temporary roof supports (shields) and connecting hoses to 

prepare the section for longwall mining. Tr. 345-46. It is undisputed 

that only half of the shields were installed at the face, that the 

headgate drive and shear were in BethEnergy 1 s shops, and that, although 

the pan line was installed, the conveyor was not connected to any of the 

mining equipment. Tr. 348-50, 379-81, 517-18. Indeed, the installation 

of the longwall was not completed and production did not commence on the 

section until approximately one week after the violation was cited. 

Therefore, the section was not capable of coal production nor was 

production reasonably close in time on the 3 Right Longwall section when 

the violation was cited. Thus, the section was not, as of that date, a 

working section requiring compliance with the requirements of section 

75.1704. 

1455 
VI. 

We thus conclude that the judge's findings that the requirements.· 

of section 75.1704 were not applicable to the cited three areas of the 

Complex are supported by substantial evidence. Accordingly, we affirm 

the judge's decision. 

Distribution 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

USX Tower, 600 Grant Street 

58th Floor .. 

Pittsburgh, PA 15219 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. · 

Arlington, Virginia 22203 

J oyle, 

Lastowka, 

~. Commissioner 

Administrative Law Judge Roy Maurer 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1456 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH Fl:OOR 

WASHINGTON, D.C. . 20006 

August 28, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket Nos. PENN 87-121-R 

PENN 87-122-R 

PENN 87-124-R 

PENN 87-176 

PENN 87-235 

v. 

TRACEY & PARTNERS, 

RANDY ROTHERMEL, TRACEY PARTNERS 

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

Commissioners 

DECISION 

BY: Ford, Chairman; Doyle and Nelson, Commissioners 

The issue presented in this proceeding ar1s1ng under the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (1982)("Mine 

Act" or "Act"), is whether Tracey & Partners, Randy Rothermel, Tracey 

Partners ("Tracey") violated section 103(a) of the Mine Act because of 

its refusals to permit an inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") to conduct spot inspections 

pursuant to section 103(i) of the Act. 1/ MSHA issued Tracey two 

lf Section 103(a) of the Act states: 

Purposes; advance notice; frequency; guidelines; right of 

access 

Authorized representatives of the Secretary ••• 

shall make frequent inspections and investigations 

in coal or other mines each year for the purpose of 

(1) obtaining, utilizing, and disseminating 

information relating to health and safety 

conditions, the causes of accidents, and the causes 

of diseases and physical impairments originating in 

such mines, (2) gathering information with respect 

to mandatory health or safety standards, (3) deter1457 
mining whether an imminent danger e~ists, and (4) 

determining whether there is co~pliance with the 

mandatory health or safety standards ot with any 

citation, order, or decision issued und~r this 

[Act] •••• In carrying out the requirements of 

clauses (3) and (4) of this subsection, th~ 

Secretary shall make inspections of each underground 

coal or other mine in its entirety at least four 

times a year, and of each surface coal or other mine 

in its entirety at least two times a year. The 

Secretary shall develop guidelines for additional 

inspections of mines based on criteria including, 

but not limited to, the hazards found in mines 

subject to this [Act], and his experience under this 

[Act] and other health and safety laws. For the 

purpose of making any inspection or investigation 

under this [Act], the Secretary •.• with respect to 

fulfilling his responsibilities under this [Act] 

shall have a right of entry to, upon, or through any 

coal or other mine. 

30 U.S.C. § 813(a). 

Section 103(i) of the Act states: 

Spot inspections 

Whenever the Secretary finds that a coal or other 

mine liberates excessive quantities of methane or 

other explosive gases during its operations, or that 

a methane or other gas ignition or explosion has 

occurred in such mine which resulted in death or 

serious injury at any time during the previous five 

years, or that there exists in such mine some other 

especially hazardous condition, he shall provide a 

minimum of one spot inspection by his authorized 

representative of all or part of such mine during 

every five working days at irregular intervals. For 

purposes of this subsection, "liberation of 

excessive quantities of methane or other explosive 

gases" shall mean liberation of more than one 

million cubic feet of methane or other explosive 

gases during a 24-hour period. When the Secretary 

finds that a coal or other mine liberates more than 

five hundred thousand cubic feet of methane or other 

explosive gases during a 24-hour period, he shall 

provide a minimum of one spot inspection by his 

authorized representative of all or part of such 

mine every 10 working days at irregular intervals. 

When the Secretary finds that a coal or other mine 

liberates more than two hundred thousand cubic feet 

of methane or other explosive gases during a 24-hour 

period, he shall provide a minimum of one spot 

1458 
citations under section 104(a) of the Act and a failure to abate 

withdrawal order under section 104(b) of the.Act, 30 U.S.C. §§ 814(a)-

(b), for Tracey's refusals to permit access to its mine. Commission 

Administrative Law Judge George A. Kout~as concluded that MSHA's 

attempts to conduct the spot inspections under s~ction 103(i) were 

improper, vacated the contested citations and withdrawal order, and 

dismissed the Secretary's proposals for assessment Qf civil penalties. 

9 FMSHRC 2127 (December 1987)(ALJ). We granted the Secretary of Labor's 

petition for discretionary review of the judge's decision. For the 

reasons that follow, we affirm. 

The essential facts were stipulated by the parties. The citations 

and order were issued at the Tracey Slope Mine, an underground 

anthracite coal mine located in Schuylkill County, Pennsylvania. The 

mine employs three to five miners underground and produces approximately 

4,000 tons annually. During the 24 months preceding the issuance of the 

contested citations and orders, the mine was subjected to 142 inspection 

days and cited for a total of 24 citations. Stipulations 16 and 17, 9 

FMSHRC 2131. A methane explosion had occurred at the mine on 

February 10, 1982, resulting in serious injuries to three miners. As a 

result, MSHA placed the mine on a five-day spot inspection cycle under 

section 103(i) of the Mine Act. Section 103(i) mandates, in part, that, 

whenever the Secretary finds that a methane explosion that results in 

death or serious injury has occurred in a mine at any time during the 

previous five years, the Secretary shall provide a minimum of one spot 

inspection during every five working days, at irregular intervals. 

The record reflects that no methane ignitions or explosions that 

resulted in serious or fatal injury had occurred at this mine since the 

accident on February 10, 1982, nor had the mine liberated "excessive 

quantities of methane" as that terminology is defined in section 103(i). 

The mine did have a methane ignition in 1985 but there were no injuries. 

On September 15, 1986, six months prior to the fifth anniversary 

of the February 10, 1982 explosion, Tracey sent MSHA a detailed letter 

setting forth its reasons as to why the mine should be removed from the 

section 103(i) spot inspection cycle when the five years elapsed on 

February 10, 1987. The letter was prompted in part by Tracey's 

discovery that a neighboring mine had been removed from the section 

103(i) cycle seven years after it had experienced a methane explosion 

similar to the one that occurred at Tracey's mine in 1982. No written 

response was forthcoming from the agency and one MSHA witness speculated 

that Tracey's letter had been lost or mislaid. 9 FMSHRC 2141, 2143, 

2146. 

On the morning of February 12, 1987, two days after the fifth 

anniversary of the 1982 methane explosion, MSHA Inspector Victor G. 

Mickatavage arrived at the mine to conduct a section 103(i) spot 

inspection by his authorized representative of all 

or part of such mine every 15 working days at 

irregular intervals. 

30 u.s.c. § 813(i). 

1459 
inspection. Randy Rothermel, an owner and the managing partner of the 

mine, denied Mickatavage entry to the mine to· conduct the section 103(i) 

spot inspection but stated his willingness to permit any other type of 

inspection. Mickatavage thereupon issued to Tracey a citation alleging 

a violation of section 103(a) of the Act for denial of entry. After 

allowing 45 minutes for abatement, Mickatavage requested entry to 

conduct the section 103(i) spot inspection and again was denied entry. 

Mickatavage then issued a section 104(b) withdrawal order for failure to 

abate the citation, again alleging a violation of section 103(a) of the 

Act. The withdrawal order did not prohibit entry into the mine. 

On February 17, 1987, the inspector returned to the mine and 

issued a modification to the February 12, 1987, citation and withdrawal 

order that indicated the entire underground area of the mine was 

affected. Tracey again denied entry to perform a section 103(i) 

inspection, but the inspector took no new enforcement action. Two days 

later, however, when Tracey denied Mickatavage entry to the mine to 

conduct a section 103(i) spot inspection, the inspector issued a second 

citation alleging Tracey's failure to comply with the section 104(b) 

withdrawal order as modified and asserting a violation of section 103(a) 

of the Mine Act. On March 23, 1987, a section 103(i) inspection on the 

mine was finally permitted. Tracey filed notices of contest of the 

citations and order, and the Secretary proposed civil penalties for the 

alleged violations. These matters were consolidated and proceeded to 

hearing before Judge Koutras. 

At the hearing, Tracey contended that the requested section 103(i) 

spot inspections were unlawful because none of the criteria set forth in 

section 103(i) with respect to such inspections were satisfied at the 

time of its denial of entry. Tracey maintained that section 103(i) 

inspections are strictly limited by the terms of the statute. In 

response, it was argued for the Secretary that, under section 103(a), 

she possesses an absolute right of entry to perform inspections 

authorized by the Mine Act, and that she has discretion based on the 

particular conditions present in a mine to determine whether that mine 

should remain subject to the section 103(i) spot inspections that were 

originally triggered by a methane ignition resulting in death or serious 

1nJury. The Secretary contended that MSHA acted within its statutory 

authority in continuing the section 103(i) spot inspections beyond the 

five-year anniversary of the triggering methane ignition, based on its 

continued concern for methane gas in the mine as well as concern about 

the mine's ventilation and roof control systems, escapeways, and 

projected development toward impounded water. 

Judge Koutras concluded that, although section 103(a) of the Act 

gives MSHA a right of entry into the mine for inspection purposes, its 

specific authority to conduct spot inspections every five days pursuant 

to section 103(i) is subject to the following conditions delineated in 

that section: (1) liberation of excessive quantities of methane or other 

explosive gases during its operations, namely, more than one million 

cubic feet of methane or other explosive gases during a 24-hour period; 

(2) a methane or other gas ignition or explosion resulting in death or 

serious injury at any time during the previous five years; and (3) the 

existence in the mine of especially hazardous conditions. 9 FMSHRC 

1460 
at 2145. 

Concerning the first and second statutory conditions giving rise 

to the section 103(i) inspections, the judge noted that MSHA had 

stipulated "that the mine had not liberated 'excessive quantities of 

methane' as that term is defined by section 103(i)" and that MSHA had 

also stipulated that no methane ignitions or explosions resulting in 

serious injury had occurred in the mine since the accident of February 

10, 1982. 9 FMSHRC at 2148, 2157. Regarding the third condition, the 

judge considered MSHA's concern about the mine 1 s ventilation, roof 

conditions, escapeways, and planned development, but found that MSHA had 

failed to show that this concern warranted inspections every five days 

under section 103(i). 9 FMSHRC at 2149-55, 2156-57. The judge also 

found there was no credible evidence that MSHA had ever conducted a 

detailed methane or ventilation survey at the mine to support its 

generalized and speculative conclusions that methane liberation is, in 

fact, a hazard at the mine. 9 FMSHRC at 2149, 2152, 2157. ~/ 

Based on these determinations, the judge concluded that MSHA had 

failed to establish good cause for maintaining the mine on a five-day 

section 103(i) inspection cycle and that, accordingly, Tracey's refusal 

to allow entry into the mine for the purpose of conducting such section 

103(i) inspections was justified and not in violation of section 103(a) 

of the Mine Act. 9 FMSHRC at 2156-57. The judge vacated the citations 

and order and dismissed MSHA 1 s proposals for assessment of civil 

penalties. 9 FMSHRC at 2157. 

On review, the Secretary argues that the judge erroneously failed 

to conclude that MSHA had an unlimited right of entry to the Tracey 

Slope Mine under section 103(a) of the Mine Act. The Secretary also 

contends that the judge erred in failing to conclude that MSHA properly 

exercised its discretion in seeking to conduct section 103(i) spot 

inspections. The Secretary submits that under the second statutory 

condition or trigger, the terminology as to five-years does not set a 

ceiling on a section 103(i) inspection cycle triggered by a death or 

serious injury-causing ignition but, in effect, provides only a minimum 

floor. The Secretary also argues that further five-day spot inspections 

were justified because of the existence of other hazardous conditions in 

the mine. We disagree. 

There is no question that section 103(a) of the Mine Act confers 

upon MSHA a broad right of entry to mines for purposes of inspection and 

investigation. Section 103(a) expressly grants authorized 

representatives of the Secretary a right of entry to all mines for the 

purpose of performing inspections under the Act. !:..&.:._, United States 

Steel Corp., 6 FMSHRC 1423, 1430-31 (June 1984). However, the 

~/ The judge noted that Tracey, in its September 15, 1986, letter 

seeking removal from the section 103(i) inspection cycle, advised MSHA 

that recent air samples gathered by MSHA inspectors indicated that the 

maximum amount of methane liberated at the mine during a 24-hour period 

was 87,000 cubic feet. This is somewhat less than 10 percent of the 

amount necessary to invoke the first condition of section 103(i). 

1461 
Secretary's right of entry is not unlimited or absolute. The Supreme 

·Court has acknowledged a mine owner's right to show, in an appropriate 

adjudicative forum, that a specific Secretarial_"search" is "outside the 

federal regulatory authority" or to seek accommodation of "any unusual 

privacy interests." Donovan v. Dewey, 452 U.S. 594, 604-05 (1981). 'J./ 

Moreover, we concur with the judge that section 103(i) clearly 

defines and limits the Secretary's authority to conduct five-day spot 

inspections pursuant to the authority of that provision. The parties' 

stipulations establish that the Secretary sought entry for the purpose 

of carrying out section 103(i) five-day spot inspections. See 9 FMSHRC 

at 2130-31; Stips. 10, 13, & 14. The Secretary makes no claim that her 

efforts to conduct these challenged section 103(i) inspections were 

justified under the first condition set forth in section 103(i) 

(liberation of "excessive quantities of methane or other explosive 

gases"). Like the judge, we discern no warrant on this record for the 

inspections under either the second or third conditions of 

section 103(i). 

We first examine the Secretary's contention that she possessed 

discretion under section 103(i) to maintain the Tracey mine on the fiveday spot inspection cycle. It is a cardinal principle of statutory 

construction that, in the first instance, we must seek the meaning of 

this statute in the language in which it is expressed. If the meaning 

of that language is plain, the statute is to be enforced according to 

its terms unless it can be established that Congress clearly intended 

the words to have a different meaning. See, e.g., Caminetti v. United 

States, 242 U.S. 470, 485 (1916); Chevron, U.S.A. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837, 842-43 (1984); Matala v. 

Consolidation Coal Co., 647 F.2d 427, 429-30 (4th Cir. 1981). See also 

Western Fuels-Utah, Inc., 11 FMSHRC 278 (March 1989), appeal do"Ck;ted':--

No. 89-1258 (D.C. Cir. April 20, 1989). 

In our opinion, section 103(i), as relevant here, displays a plain 

and unambiguous meaning. Whenever the Secretary finds that a methane or 

other gas ignition or explosion resulting in death or serious injury has 

occurred at any time during the previous five years, she must provide a 

11 When entry to a mine is denied, the Secretary may pursue an 

injunction to gain entry pursuant to section 108 of the Act, 30 U.S.C. 

§ 818 (Dewey, 452 U.S. at 604-05), and/or a civil penalty proceeding 

before the Commission alleging a violation of section 103(a) of the Act. 

Waukesha Lime & Stone Co., Inc., 3 FMSHRC 1702, 1703-04 (July 1981). In 

each instance, the party denying entry is permitted to appear before a 

neutral judicial forum to defend its action. Entry to the Secretary is 

denied at one's legal peril. If the adjudicatory body determines that 

there was no justification for the refusal of entry, injunctive relief 

and/or civil penalties under the Act may be imposed. On the other hand, 

if inspection is determined to be "outside federal regulatory 

authority," the denial of access will not be punished under the Act. 

MSHA indicated at the hearing that a court injunction was not sought 

becaus~ the violations in issue had been abated when Tracey finally 

permitted access on March 23, 1987. 

1462 
minimum of one spot inspection by her authorized representative of all 

or part of the mine during every five working days, at irregular 

intervals. After the five-year period has expired without another 

incident of a gas ignition or explosion: resulting in death or serious 

injury, it is obvious that there is no longer such an event "during the 

previous five years." By the express language of the statute, 

therefore, the Secretary is neither required, nor granted "discretion," 

to continue a minimum of one spot inspection every five working days 

where she cannot show that such an event has occurred during the 

previous five years. 

The Secretary asserts that her construction of the statute must be 

accorded deference. While the Secretary must be accorded deference when 

a statute is silent or ambiguous, effect must be given to the 

"unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. 

Natural Resources Defense Council, Inc., supra at 843. We believe that 

Congress, when it drafted section 103(i), was quite specific in setting 

forth the instances in which it intended the Secretary to deploy her 

resources in conducting five, ten, and fifteen day inspections under 

that section. We find no support whatsoever in the statute for the 

Secretary's interpretation. We conclude that section 103(i) plainly 

means that, in this instance, the five-day inspection cycle based on the 

second condition terminates upon the fifth anniversary of the initial 

ignition, if no further triggering event has occurred during that fiveyear period. 

With respect to the Secretary's various arguments concerning 

hazardous conditions in the Tracey Slope Mine, it is not entirely clear 

whether she is suggesting that these conditions support her claim of 

discretion to continue spot inspections pursuant to the second condition 

of section 103(i) or whether she is attempting to raise a separate 

justification for her enforcement actions. We have already demonstrated 

that, under the circumstances presented here, an exercise of discretion 

based on the second condition cannot be reconciled with the plain text 

of section 103(i). A right of inspection based upon the third condition 

of section 103(i) was explicitly waived by the Secretary at the hearing 

when her counsel indicated that while "other hazardous conditions" could 

be a basis for continued section 103(i) five-day inspections, 'the 

foundation for the requested inspections was the second statutory 

trigger. Tr. 95, 131, 133-35, 138, 139, 155, 182. The Secretary's 

counsel also indicated that there was a procedure used by MSHA for 

putting a mine on an inspection cycle based on the third statutory 

trigger, which course had not been followed. Tr. 133-35. ~/ 

~/ As noted above, a combination of section 103(i) spot inspections 

and the regular quarterly· inspections mandated by the Act resulted in 

142 inspection days expended at the Tracey mine during the 24 months 

preceding the instant dispute. Given the evidence of record that the 

mine operated an average of four days per week, that translates to more 

than one inspection every three days. Yet with such heightened 

inspection activity only 24 citations were issued during that 24-month 

period, or .17 citations per inspection day. While we are not bound by 

the Secretary's civil penalty criteria set forth in 30 C.F.R. Part 100, 

.1463 
We turn to the Secretary's alternative argument that further spot 

inspections under section 103(i) were author~zed under the general 

inspection powers conferred upon her by ~ection 103(a). We agree with 

the general proposition that all physical inspections of mines under 

section 103 are conducted pursuant to the basic authority of section 

103(a). We further agree that the Secretary has considerable authority 

to conduct inspections under section 103(a) of the Act. Section 103(a) 

also grants the Secretary authority to conduct general "spot" 

inspections, as distinguished from the more specifically described 

"spot" inspections under section 103(i). See United Mine Workers v. 

FMSHRC, 671 F.2d 615, 623-24 (D.C. Cir. 1982); Consol. Coal Co. v. 

FMSHRC, 740 F.2d 271, 273 (3rd Cir. 1984); Monterey Coal v. FMSHRC, 743 

F.2d 589, 593 (7th Cir. 1984). (Tracey concedes that "spot" inspections 

under section 103(a) are authorized. Tr. 151-52.) 

All this being stated, however, Tracey has been cited for 

violating section 103(a) because it did not accede to an MSHA 

inspector's section 103(i) inspection requests. Although a valid 

section 103(i) inspection is, to an extent, also an inspection made 

pursuant to section 103(a) of the Mine Act, we believe that a section 

103(i) "spot" inspection must be valid in the first instance under 

section 103(i) itself. The Secretary is granted the right of entry into 

a mine only as authorized by the Mine Act. 21 The Secretary's proffered 

basis for obtaining entry into Tracey's mine was section 103(i) of the 

Mine Act and, as discussed, the conditions under which an inspection can 

be made pursuant to that section were unavailable to the Secretary at 

the time she attempted her inspection. 

We emphasize that denial of access to an MSHA inspector, even in 

the limited context presented here, is an action not to be taken 

lightly. As noted in n. 3, the potential consequences of such a 

unilateral step can be severe. What the record makes abundantly clear, 

however, is that in this case we have an insistence by the inspector on 

an inspection of the mine pursuant only to section 103(i). Tracey 

offered access to the mine under the general authority of the Secretary 

pursuant to section 103(a). The inspector chose instead to cite Tracey 

for its refusal to submit to an inspection pursuant to section 103(i), a 

refusal that was based on its sincere belief that the Secretary's 

we note that section 100.3(c) of those criteria provides that penalties 

are not increased on the basis of past compliance history unless that 

history indicates more than .3 violations per inspection day. Thus, by 

the Secretary's own criteria and in light of a rather pervasive 

inspection presence at Tracey's mine, we find no objective basis for the 

Secretary's attempt to extend the five-day cycle. 

21 For example, in Sewell Coal Co., 1 FMSHRC 864 (July 1979)(ALJ), 

cited in Peabody Coal Company, 6 FMSHRC 183, 186 n.5 (February 1984), 

the operator's denial of MSHA access to certain business records not 

required to be maintained by the Mine Act was upheld. Although that 

case, unlike this one, involved expectation of privacy issues, the right 

of entry found in section 103(a) was nevertheless circumscribed to the 

inspection of records required to be maintained and accessible under the 

Act. 

1464 
authority to co.nduct a section 103(i) inspection had expired. fl/ It is 

significant to note that the inspector coulq have performed the 

identical tests under the access proferred pursuant to section 103(a) 

that he had previously performed under section l03(i). The inspector is 

not precluded from making spot inspections of the mine at least every 

five days under the auspices of section 103(a). Therefore, we see no 

overriding safety issue involved in these proceedings. 

Thus, because the Secretary's attempts to conduct section 103(i) 

inspections under the circumstances presented by this case were "outside 

the federal regulatory authority," Tracey's denial of access did not 

violate section 103(a) of the Act. See Donovan v. Dewey, 452 U.S. at 

604-05. Tracey indicated its willingness to permit any other type of 

inspection. The Secretary could have exercised her discretion to 

conduct spot inspections authorized under section 103(a) for purposes of 

"determining whether an imminent danger exists" or "determining whether 

there is compliance with the mandatory health or safety standards or 

with any citation, order, or decision issued under [the Mine Act]." 

Accordingly, and for the foregoing reasons, we affirm the judge's 

decision. 

fl/ We emphasize that Tracey's limited refusal of access to the 

inspector under section 103(i) was in large part the result of MSHA's 

persistent failure to respond officially to the operator's letter 

requesting that the mine be taken off the section 103(i) cycle and 

stating its reasons in support thereof. We agree with the judge that 

MSHA had "the responsibility and obligation to respond in writing to an 

operator's request of this kind." 9 FMSHRC 2146. Furthermore, after 

several informal discussions with inspectors regarding the applicability 

of section 103(i) to Tracey's circumstances, Rothermel testified that 

the inspectors told him that "if you think that's the law, you have to 

fight it. So that's what we're doing here today." Id. at 2141. 

1465 
Commissioners Backley and Lastowka, dissenti-ng: 

In its decision, the majority approves a mine operator's denial of 

entry to an MSHA inspector at a mine to conduct an inspection to 

determine whether the operator was complying with mandatory safety and 

health standards. The inspection sought to be performed by the 

inspector was one authorized by section 103(a) of the Mine Act and the 

inspector therefore possessed a clear right of entry into the mine to 

conduct the inspection. 30 U.S.C. § 813(a). Thus, there is no basis in 

law or fact for the majority's decision upholding the administrative law 

judge's approval of the operator's denial of access. Accordingly, we 

dissent. 

Section 103(a) of the Mine Act sets forth the Secretary's 

authority to make frequent inspections and investigations in our 

Nation's mines. In relevant part, section 103(a) authorizes "frequent 

inspections" for the purpose of ••• " (3) determining whether an imminent 

danger exists, and (4) determining whether there is compliance with the 

mandatory health or safety standards or with any citation, order, or 

decision issued under this title or other requirements of this Act." 

Id. Section 103(a) further provides that "[f]or the purpose of making 

any inspection or investigation under this Act, the Secretary ••• or any 

authorized representative of the Secretary ••• shall have a right of 

entry to, upon, or through any coal or other mine." Id. (emphasis 

added). 

The Supreme Court has concluded that "the general program of 

warrantless inspections authorized by § 103(a) of the [Mine] Act does 

not violate the Fourth Amendment." Donovan v. Dewey, 452 U.S. 594, 605 

(1981). In upholding the Secretary's right of entry, the Court 

emphasized the "substantial federal interest in improving the health and 

safety conditions in the Nation's .•• mines", and that "the regulation 

of mines .•. is sufficiently pervasive and defined that the owner of 

such a facility cannot help but be aware that he 'will be subject to 

effective inspection'." 452 U.S. at 602, 603 (citation omitted). 

Consistent with Dewey, the Commission has held that a mine operator's 

failure to permit inspections authorized by the Mine Act violates 

section 103(a) of the Act. Waukesha Lime & Stone Co. Inc., 3 FMSHRC 

1702, 1703-04 (July 1981); United States Steel, 6 FMSHRC 1423, 1430-31 

(June 1984); Calvin Black Enterprises, 7 FMSHRC 1151, 1156 (August 

1985). 

Supplementing the broad grant of inspection authority provided in 

section 103(a), the Mine Act specifies certain types of more specialized 

mine inspections. For example, section 103(i) requires the Secretary to 

conduct inspections with increased frequency if she finds that certain 

hazardous conditions, including the presence of excessive levels of 

explosive gases, have been found to exist at a mine. 30 U.S.C. 

§ 813(i). As relevant here, section 103(i) requires the Secretary to 

inspect at least once every five working days any mine in which a gas 

ignition or explosion has occurred during the previous five years that 

resulted in death or serious injury. Id. 

1466 
This provision requiring more frequent specialized inspections had 

its genesis in the Federal Coal Mine Health·and Safety Act of 1969, 30 

U.S.C. § 801, 813(i)(1976)(amended 1977)("Coal ,Act"). The legislative 

history of the Coal Act reveals that the bill that passed the Senate 

required the Secretary to station an inspector at underground coal mines 

that liberated excessive levels of explosive gases on a daily basis. 

Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 

94st Cong. 1st Sess., Part I Legislative History of the Federal Coal 

Mine Health and Safety Act of 1969, at 1511 (1975). Comparatively, the 

House bill required 26 spot inspections per year at such mines, and at 

other especially hazardous mines including mines that had experienced a 

gas ignition during any five year period. Id. The Conference Committee 

adopted the House bill with certain amendments including a minimum 

inspection frequency of once every five working days at such especially 

hazardous mines. Id. The House bill, as amended, was adopted because 

the Senate requirement to inspect excessively gassy mines on a daily 

basis would have depleted the Secretary's finite resources. Id. at 

1347-48. Thus, the legislative history makes clear that subsection (i) 

of section 103 was adopted to insure that the Secretary would pay 

particular attention to those mines that Congress determined to be 

especially hazardous and deserving of increased regulation. 

Nevertheless, all inspections of mines conducted by the Secretary 

for the purpose of determining whether there is compliance with 

mandatory safety or health standards or whether an imminent danger 

exists, including those inspections made pursuant to section 103(i), are 

made pursuant to the basic grant of inspection authority in section 

103(a). Section 103(i) does not contain a grant of independent 

inspection authority; for example, only subsection (a) authorizes the 

Secretary to make warrantless searches of mines. Donovan v. Dewey, 

supra. The United States Courts of Appeals for the District of 

Columbia, Third, and Seventh Circuits have each specifically held that 

under the Mine Act all inspections, including section 103(i) 

inspections, are conducted pursuant to section 103(a). In United Mine 

Workers v. FMSHRC, 671 F.2d 615 (D.C. Cir.), cert. denied, 459 U.S. 927 

(1982), the D.C. Circuit stated that "althoug~spot gas inspection may 

be required to be conducted with a certain frequency by subsection (i), 

it is nevertheless conducted 1pursuant to the provisions of subsection 

(a)' because its purpose is to determine whether an imminent danger 

exists and whether there is compliance with mandatory health and safety 

standards." 671 F.2d at 624 n.27. 

The Seventh Circuit has agreed with the D.C. Circuit's analysis of 

the relationship between section 103(a) and (i): 

The only statutory authority for the Secretary to 

inspect mines without a warrant or prior notice is 

section 103(a). That fact suggests that any 

inspection - such as the spot inspectipn in this 

case - lawfully conducted without prior notice or a 

warrant is an inspection conducted pursuant to the 

provisions of subsection (a). Even the types of 

inspections having more specific authority, e.g., 

section 103(g)(l) and (i), are conducted without 

1467 
warrants and notice and are thus conducted pursuant 

to the provisions of subsection (a~. 

Monterey Coal Co. v. FMSHRC, 743 F.2d 5~9, 593 n.8 (7th Cir. 1984). 

Accord, Consolidation Coal Co v. FMSHRC, 740 F.2d 271, 273 (3rd Cir. 

1984)("We find ourselves in agreement with the District of Columbia 

Court -- that spot inspections of the type challenged here are 

authorized by and made 'pursuant to subsection 103(a).'" (citation 

omitted)). 

It is therefore evident that the phrase "103(i) spot inspection" 

is simply a convenient label to describe inspections made pursuant to 

section 103(a) at the increased frequency set forth in subsection (i). 

Such inspections, however, are still inspections authorized by and made 

pursuant to section 103(a). l/ 

We agree with the Secretary that section 103(i) "represents a 

mandate to, rather than a restriction on, the Secretary in the exercise 

of her enforcement function." Sec. Br. 10. The language of subsection 

(i) and its legislative history make clear that the sole purpose of this 

provision is to require the Secretary to conduct inspections with 

increased frequency in certain circumstances that Congress determined 

required increased vigilance. In enacting subsection (i), Congress did 

not seek to in any manner reduce the Secretary's pervasive inspection 

authority. 

In light of the Supreme Court's upholding in Donovan v. Dewey, 

supra, of an MSHA inspector's right of entry into a mine to conduct an 

inspection, the majority errs in concluding that a mine operator can 

deny an MSHA inspector access based on its belief that its mine no 

longer meets the criteria of section 103(i). In this case, the owner of 

the mine stated his willingness to permit any type of inspection other 

than a section 103(i) inspection and the majority endorses his ability 

to so control the terms of the inspector's entry. In doing so, the 

majority fails to recognize that section 103(i) inspections are made 

pursuant to section 103(a) and that section 103(i) does not limit the 

Secretary's right to conduct inspections. Contrary to the majority's 

assertions, the inspection that the inspector attempted to conduct in 

this case was not "outside the federal regulatory authority." (Slip op. 

at 9). Rather, the inspection was to be conducted for a basic and 

eminently lawful purpose, that is, to determine whether the operator was 

complying with the Secretary's mandatory safety and health regulations. 

1/ Analogously, citations issued under section 104(a), which include 

;ignificant and substantial and unwarrantable failure findings, are 

frequently referred to as "104(d)(l) citations." Yet, as the Commission 

has unanimously held, "the commonly used phrase 'section 104(d)(l) 

citation' is merely a term of convenience and does not indicate a 

separate basis for issuance of citations independent from section 

104(a)." Utah Power and Light, 11 FMSHRC 953, 956 (June 1989). 

1468 
Our colleagues elevate form over substance in concluding that 

because the inspector indicated that section 103(i) was the authority 

for his presence, entry to the mine could be denied if, in fact, the 

Secretary was no longer required as a matter of law to inspect the mine 

every five working days under subsection (i). As discussed above, 

however, all inspections are conducted pursuant to the basic grant of 

authority in section 103(a). Furthermore, the inspector did not charge 

the operator with violations of section 103(i). Rather, the citations 

and withdrawal orders issued in this case charge that the operator 

violated section 103(a) by denying the inspector entry into the mine. 

For example, citation No. 2840770 states in part, that "on 02-12-87, 

Randy Rothermel, partner and mine foreman, refused to allow Victor G. 

Mickatavage, an authorized representative of the Secretary, entry into 

the Tracey Slope mine for the purposes of conducting an inspection of 

the mine pursuant to section 103(a) of the Act." Joint Exh. 1. 

(Emphasis added). 

Thus, it is clear that the essential basis for the Secretary's 

assertion of authority to inspect the mine was section 103(a). The 

majority's endorsement of the operator's right to deny entry to the 

inspector unless the inspector would state that he was conducting a 

section 103(a) inspection, rather than a section 103(i) inspection, 

reduces the Secretary's role from enforcer of the Mine Act to 

participant in an operator-controlled game of "Simon Says"; the 

inspector is powerless to enter the mine until he says "May I" in a 

manner satisfactory to the operator. Section 103(a)'s broad grant of 

inspection authority cannot be so constrained. 

1469 
In sum, we conclude that the inspection of the Tracey Slope Mine 

was done for a lawful purpose -- to determine whether the mine operator 

was complying with the Secretary's safety and health standards. Thus, 

the inspection was not "outside.the federal regulatory authority," but 

was squarely within it. We would therefore hold that the denial of 

entry was unlawful. We would reverse the administrative law judge's 

decision, affirm the citations and order and remand for assessment of 

civil penalties. 

Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James P. Diehl, Esq. 

Williamson, Friedberg & Jones 

One Norwegian Plaza 

Pottsville, PA 17901 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

One Skyline Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

1470 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

AUG 11989 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

YAPLE CREEK SAND & GRAVEL, 

Respondent 

. . 

: 

. . 

: 

: 

: 

. . 

DECISION 

Docket No. CENT 88-93-M 

A.C. No. 29-00425-05501 

Yaple Creek Pit 

Appearances: Janice L. Holm, Esq., Jack F. OStrander, Esq. 

Office of the Solicitor, U.S. Department of 

Labor, Dallas, Texas, ,.--

for Petitioneri 

Jay Rubin, Esq., Stout & Rubin, Truth or 

Consequences, New Mexico, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the· Mine Safety and 

Health Administration CMSHA), charges respondent with violating 

eight safety regulations promulgated under the Federal Mine 

Safety and Health Act, 30 u.s.c. § 801 et seq., Cthe Act). 

After notice to the parties a hearing on the merits was 

held in El Paso, Texas on July 18, 1989. 

The parties waived their right to file post-trial briefs, 

and waived receipt of the transcript. Respondent submitted its 

case on oral argument. The parties further requested an expedited decision. 

Stipulation 

At the commencement of the hearing the parties stipulated 

that the Commission had jurisdiction to determine the issues 

herein. Further, it was stipulated that respondent is a sand 

and gravel operator and is subject to the Act1 however, since 

this operator has only one employee engaged in the actual mining 

and processing of the sand and gravel, it is asserted that in 

this unique circumstance the MSHA lacks jurisdiction. 

1471 
Issues 

The issues raised are whether a one-man operation is subject 

to the Act. Further, should the issues of estoppel and vagueness 

cause a dismissal of the complaint herein. Additional issues 

concern whether respondent violated the regulations and, if a 

violation occurred, what penalty is appropriate. 

Threshold Issues 

The initial threshold issue is whether a one-man operation 

is subject to the Mine Safety Act. 

The evidence on this issue is uncontroverted. Mr. Robert 

Huffman is the owner of Yaple Creek Sand & Gravel. He is the 

sole individual involved in processing the sand and gravel. 

Mrs. Pat Huffman handles the book work for the company but she 

does not engage in the actual mining process. 

On the foregoing facts I conclude that although the 

respondent has no employees engaged in the removal of the sand 

and gravel other than Mr. Huffman, the company is nevertheless 

subject to the Act. 

In Marshall v. Sink, 614 F.2d 37, 1980, the United States 

Court of Appeals for the 6th Circuit noted that the respondent 

therein was subject to federal regulations even though he owned 

and operated a small mine without employees, 614 F.2d at 38. 

The foregoing case law, which is now generally established, 

rests on the broad Congressional definition of a mine. The 

definition as enacted by the Congress provides: 

(h)(i) "Coal or other mine" means (a) an 

area of land from which minerals in 

a non-liquid form ••• are extracted. 

30 u.s.c. § 802(3). 

Further, there is no indication in the Congressional history 

that Congress intended to exclude a one-man operation from complying with safety and health regulations. To like effect see 

C.D. Livingston, 7 FMSHRC 1485 (1985). 

On the basis of the existing case law I conclude that a 

one-man operation is indeed subject to the Act. 

1472 
Respondent also raises the defense that other MSHA inspectors had indicated to the operator that his operation was 

in compliance with the law. Since no previous citations have 

been issued, the citations issued here in the instant case 

should be vacated on the doctrine of estoppel. 

The argument is rejected for several reasons. The 

Commission has ruled that estoppel does not apply against the 

federal government, King Knob Coal Company, Inc., 3 FMSHRC 1417, 

1421. Further, it is clear that lack of previous enforcement 

does not support a claim of estoppel. See J & R Coal Company, 

3 FMSHRC 591 (1981); Burgess Mining and Construction Corporation 3 FMSHRC 296 (1981); Price River Coal Company, 5 FMSHRC 

1734 (1983). The defense of estoppel should not prevent the 

Secretary from enforcing the Act. This is because inspectors 

have different areas of expertise. One inspector might not 

consider a factual circumstance to constitute a violation. 

However, another inspector might clearly conclude a violation 

exists. For these reasons the doctrine of estoppel in safety 

and health matters cannot be invoked against the Secretary. 

Respondent also raises the issue that the regulations 

involved in this case are unconstitutionally vague and fail 

to give a one-man operator fair notice of what is required of 

him to comply with the regulation. I reject respondent's views. 

Regulations such as are involved in the instant case are not 

considered in a vacuum. Generally such safety regulations are 

examined and must be looked at in light of the conduct to which 

they are applied. Ray Evers Welding Company v. OSHRC, 625 F.2d 

726, 732, 6th Cir. (1980). General terms such as "unsafe or 

dangerous" frequently appear in federal safety and health regulations. This approach has been recognized as necessary where 

narrower terms would be too restrictive. Specifically, standards 

of this type must often be made simple and brief in order to be 

broadly adaptable to myriad circumstances, Kerr-McGee Corporation, 3 FMSHRC 496 (1981); Alabama By-Products Corporation, 

4 FMSHRC 2128 (1982); Evansville Material, Inc., 3 FMSHRC 704 

(1981). Specifically, I do not find that the regulations herein 

are unconstitutionally void. 

Summary of the Case 

William Tanner, Jr., an MSHA inspector experienced in 

mining, testified for the Secretary. Inspector Tanner inspected 

respondent and issued citations on February 18, 1988. On subsequent f ollowup inspections the alleged violations had not been 

abated. Mr. Huffman, owner of the company, requested that the 

inspector issue orders so the issues could be contested. In 

fact, orders were issued under section 104(b) of the Act. 

1473 
Robert Huffman (owner) and his wife, Mrs. Huffman, 

testified for the company. It is apparent in the case that 

the inspector and Mr. Huffman had difficulty communicating 

during the inspections. Respondent introduced photographs of 

some of the areas cited by the inspector. The judge considers 

these photographs to be pivotal to a disposition of the issues. 

Citation Nos. 2867903, 2867904, 2867905, 2867906, and 

2867908 charge respondent with violating 30 C.F.R. § 56.14001, 

which provides as follows: 

Gears1 sprockets1 chains1 drive, 

head, tail, and takeup pulleys1 

flywheels1 couplings1 shafts; sawblades1 fan inlets1 and similar 

moving machine parts which may be 

contacted by persons, and which may 

cause injury to persons, shall be 

guarded. 

Citation No. 2867903 

The Secretary's evidence by its inspector indicates that 

the chain drive assembly on the hopper feeder conveyor belt was 

not guarded. The drive assembly was 2 or 3 feet off the ground. 

The inspector considered this hazard to be open and obvious; 

other inspectors had said that it needed to be guarded. The 

inspector indicated that the operator would have to get under 

the hopper in order to contact the chain drive. Injury in this 

circumstance could result in loss of fingers. The inspector 

believed the negligence of the operator was moderate. Particularly, the operator had been previously told about this 

guarding requirement. The operator had further indicated that 

the machinery had been running on weekends and that he had 

recently been running it. 

Respondent's case consisted of three photographs (Exhibit 

R-4). These photographs indicated a gate was available to keep 

people away from the chain drive. 

In rebuttal the inspector reviewed Exhibit R-4 and concluded 

that the gate failed to provide a guard such as the type required 

by MSHA. 

1474 
Discussion 

In connection with this citation I credit the Secretary's 

evidence. It is true that Exhibit R-4Ca) and R-4Cc) show the 

presence of the gate but it is apparent, particularly from 

Exhibit R-4(a) that the unguarded chain drive assembly was at 

least 4 to 5 feet from the gate. I further conclude that the 

condition was open and obvious and therefore the operator was 

negligent. However, the gravity is low since the the unguarded 

assembly is quite low to the ground. This citation should be 

affirmed. 

Citation No. 2867904 

The Secretary's evidence in this case shows that the flat 

belt drive assembly on the crusher was not adequately guarded 

and the hand control was located between the wheel and the frame. 

Inspector Tanner testified that respondent attempted to 

guard this assembly. The hazards involve a miner becoming entangled in the equipment or being injured if the· belt should 

break. He considered that the level of exposure was reasonably 

likely and he believed the operator was moderately negligent in 

that he knew of this violation. 

Respondent's evidence indicated that the clutch handle had 

been moved and he offered a series of photographs (Exhibit R-5). 

In rebuttal the inspector reviewed the photographs and he 

indicated that they showed an attempt to guard the tail pulley. 

He further clearly identified an unguarded and exposed pinch 

point, marking it with an "x" on Exhibit R-S(b). Inspector 

Tanner further indicated that Exhibit R-5 shows an unguarded 

condition. Exhibit SCd) shows the head and tail pulley where 

a person could walk to the area and reach the unguarded portions 

by hand. Exhibit SCd), according to the inspector, shows the 

flat belt guarded in front. 

Discussion 

The photographic evidence shows the flat belt drive assembly 

was not adequately guarded; further, the hand control was located 

between the wheel and the frame. Exhibit R-5Ca) shows the hand 

control. I conclude that the photographs support the testimony 

of Inspector Tanner and a violation of the guarding standard has 

been established. Citation No. 2867904 should be affirmed. 

1475 
Citation No. 2867905 

The Secretary's evidence indicates that the head and tail 

pulleys on the conveyor belt system were not guarded. 

The inspector wanted these pulleys guarded because a person 

could contact them. The hazards would involve persons coming 

entangled with such pinch points. Hand and arm injuries were 

possible and the inspector considered it reasonably likely that 

an injury would occur. He further believed the negligence of 

the operator to be moderate. He had designated this as an S&S 

violation. The inspector estimated that the head and tail pulley 

was 5 to 6 feet off the ground. 

Respondent offered photographs of the head pulley and tail 

pulley. Exhibit R-6(a) seems to indicate that both the head 

and tail pulley are over 6 feet off the ground. Exhibit R-6Cb) 

shows the unguarded pulley to be 8 feet off the ground and 

Exhibit R-6Cc> shows the head pulley to be 15 feet off the 

ground. 

In rebuttal the inspector reviewed the photographs and 

indicated that a person could reach the pinch points by standing on the opposite side of the head and tail pulley shown in 

Exhibit R-6(a). He further marked an arrow to the pinch points 

in the photographs. 

In addition, he indicated that Exhibit R-6Cb> shows the 

head pulley. An arrow was marked to the pinch point. Such a 

pinch point could be readily reached without using a ladder or 

by walking up the muck piles. Most operators leave muck piles 

there so they can get to the pinch point to perform maintenance. 

In the inspector's view Exhibit R-6Cd) possibly shows the head 

pulley 8 feet high and the inspector agrees that it may be that 

the head pulley was not covered by the particular citation. 

Exhibit R-6Cd) shows where the inspector asked the operator 

to guard the equipment. In his view the head pulley was not 

guarded. 

Discussion 

The testimony and the photographic exhibits cause me to 

conclude that the head and tail pulleys were at least in excess 

of 6 feet off the ground and, in fact, as high as 15 feet off 

of the ground. For these reasons I conclude that the unguarded 

equipment and these moving machine parts are not likely to be 

contacted by any person nor injure any such person within the 

meaning of the regulation. For these reasons no violation of 

the guarding standard occurred and Citation No. 2867905 should 

be vacated. 

1476 
Citation No. 2867906 

In connection with this citation, the Secretary's evidence 

showed that the V-belt drive assembly on the jaw crusher was not 

guarded on the inside and outside. Inspector Tanner considered 

this the worst of the guarding violations he saw. This was particularly hazardous because at this unguarded point Mr. Huffman 

poured oil into the machinery. It was 4 to 6 inches from the oil 

cups to the gears. There was oil dripping on the side. The 

inspector told Mr. Huffman that this condition must be fixed 

before he operated the equipment. If a person became caught in 

the unguarded assembly a fatality could result. The inspector 

considered this an S&S violation and, further, he believed the 

operator was negligent because the operator knew of the problem. 

The operator offered to write a letter stating if anything 

happened the inspector would not be responsible. 

Respondent's evidence indicated that one guard had been 

added on the V-belt side since the citation was written. He 

further offered photographs of the condition (Exhibit R-7). 

Exhibits R-7Ca), Cb> and Cc> depict the V-belt drive 

assembly and show the conditions as they existed in February 1988. 

The additional guard had in fact been added at the suggestion of 

respondent's attorney. 

In rebuttal, Inspector Tanner reviewed the photographs. 

Exhibit R-7(a) shows the place where Mr. Huffman checks the 

bearings and also shows the piece of steel where he stands. 

Mr. Huffman had added a guard between the cups and the flywheel 

but in the inspector's opinion the right hand side was still 

unguarded. 

Exhibit R-7Cb) shows the outside of the V-belt assembly and 

shows it to be unguarded. A person would have to reach out to 

"get it". When the inspector was there these were unguarded. 

Inspector Tanner marked an arrow to the unguarded area and 

indicated a person could reach the motor drive by hand. 

Exhibit R-7 shows an area where Mr. Huffman oils the equipment which was unguarded at the time of the inspection. He asked 

for a guard on the side and indicated that there is a guard on 

the left hand side. 

1477 
Respondent agrees that one guard on the V-belt side was 

added since the citation was written. The photographs, 

particularly R-7Cb) and R-7(a), show the unguarded assembly. 

Discussion 

This citation should be affirmed. The photographs support 

Inspector Tanner's testimony. 

Citation No. 2867907 

Citation No. 2867907 charges respondent with violating 

30 C.F.R. § 56.11012, which provides as follows: 

Openings above, below, or near 

travelways through which persons 

or materials may fall shall be 

protected by railings, barriers, 

or covers. Where it is impractical 

to install such protective devices, 

adequate warning signals shall be 

installed. 

The Secretary's evidence shows that the screw on the sand 

washer was not protected to prevent persons from falling into 

it. The evidence further indicated to Inspector Tanner that the 

sand washer was 2 to 5 feet high and it was necessary to have a 

cover over the lower half. The equipment was supposed to have 

a travelway and nearby footprints indicated that someone had been 

in the area. 

In the inspector's view this was a large size screw1 the 

hazard could involve possible loss of leg or hand or an arm. 

He further considered that it was likely that such an accident 

could occur. In addition, he considered this to be an S&S 

violation. 

The inspector believed the operator was moderately negligent 

because the company knew the hazard was there and had been so 

advised by previous inspectors. The screw conveyor itself was 

between 6 to 8 feet to a.low of 2 feet. The inspector asked that 

the lower part be covered. 

Respondent's evidence consisted of photographs, Exhibit R-8. 

Respondent indicated that both screens had been taken off 

the shaker but the Mr. Huffman felt safe with the condition. 

1478 
In rebuttal Inspector Tanner reviewed the photograph and 

noted that the cover was not in place on the occasion of his 

first and second inspections. The inspector required that it be 

put in place. 

Discussion 

Mr. Huffman agrees that both screens had been taken off the 

shaker. Exhibit R-8 was taken after the citation was written. I 

accordingly credit the inspector's testimony that the violative 

condition existed at the time of the inspection. 

It accordingly follows the citation should be affirmed. 

Citation No. 2867908 

This citation charges a violation of the guarding standard, 

30 C.F.R. § 56.14001. 

Inspector Tanner testified the screw drive assembly for the 

sand screw washer was unguarded. It was unlikely that a person 

would get into the screw drive assembly but if it occurred he 

would suffer the possible loss of a hand, fingers, arms, or in 

any event, lost days. 

He believed the operator was moderately negligent since he 

knew of the violative condition. The assembly was between 2 feet 

on the wall to a high of 6 to 8 feet off the ground. The bottom 

of the assembly was filled with sand. 

Mr. Huffman indicated that the assembly was at least 8 feet 

off the ground. In support of his position he offered Exhibit 

R-9. The photograph shows the end of the screw sand washer which 

is 8 feet above ground. This is the condition that was depicted 

in February 1988. The operator believed the condition was safe 

because it was necessary for him to use a ladder in order to 

reach it to service it. He usually services the areas that are 

to be maintained before he to runs his equipment. 

In rebuttal Inspector Tanner drew an arrow to the area he 

believed should have been guarded. Due to the build up of a 

muck pile underneath, a person could reach it. It was in this 

same condition in February 1988. He wrote this as a non-S&S 

violation. 

14 79 
Discussion 

I credit Mr. Huffman's version of this condition. The 

existence of a muck pile is not shown in the photograph nor 

does the equipment indicate that there would be a build up of 

such a pile in this particular area. It accordingly follows 

that workers could not contact or be injured by the exposed 

parts. 

This citation should be vacated. 

Citation No. 2867909 

Citation No. 2867909 charges respondent with violating 

30 C.F.R. § 56.12032, which provides as follows: 

Inspection and cover plates on 

electrical equipment and junction 

boxes shall be kept in place at 

all times except during testing or 

repairs. 

The Secretary's evidence shows that the cover on the 

electrical junction box to the screw drive motor was missing. 

There were electrical connections inside the box and there 

were wires sticking out. The hazard involved improper insulation and a fatality could result if a person contacted 

such equipment. The inspector believed the operator was 

moderately negligent. The condition was open and obvious, 

and the box itself was 6 to 8 feet off the ground. 

Respondent indicated and concurred that the cover was 

missing but he did not see that it would make any difference 

since there were no exposed wires. Exhibits R-lO(a)(b) and 

Cc> were received in evidence and the operator indicated he 

had never had a problem with this particular junction box. 

In rebuttal Inspector Tanner drew arrows to the junction 

box. In Exhibit R-lOCb> you can observe where a person could 

contact the junction box by walking up the muck pile. 

Discussion 

The operator admits the cover on the electrical junction box 

was missing and he failed to prove in the inspection that there 

was testing being done or that repairs were being undertaken. 

1480 
The particular standard in question, namely § 56.12032, is a 

mandatory standard. The regulation does not require a potential 

for contact or injury as does the guarding regulation. 

This citation should be affirmed. 

Citation No. 2867910 

Citation No. 2867910 charges respondent with violating 

30 C.F.R. § 56.12028, which provides as follows: 

Continuity and resistance of 

grounding systems shall be tested 

immediately after installation, 

repair, and modification7 and 

annually thereafter. A record 

of the resistance measured during 

the most recent tests shall be 

made available on a request by 

the Secretary or his duly authorized representative. 

The Secretary's evidence shows that a test of the 

continuity of resistance of the grounding systems had not 

been done on the plant and a record of such test had not been 

made. 

The purpose of the regulation is to insure that plant 

generators are grounded. The hazard in this situation is 

that a possible fatal injury could occur and there have been 

numerous such fatalities. 

The inspector considered this to be an S&S violation 

particularly because of the volume of water in close proximity to the crusher. Water could establish an effective 

ground. 

The inspector believed the operator had been moderately negligent and he should have known that electrical equipment 

had to be grounded. Mr. Huffman indicated that it had not been 

tested. 

Mr. Huffman testified that he had not had an electrician 

run a test but he believed the grounding wires were apparent. 

In connection with this he offered Exhibit R-ll(a), (b} and 

(c) which show the ground wires. This was the condition existing in February 1988. 

1481 
In rebuttal Inspector Tanner reviewed the photographs 

and stated that Exhibit R-ll(a) does not show if the grounding 

is adequate and that cannot be determined until a grounding 

check has been done. Further, Exhibit R-ll(b) shows the power 

cable was wrapped in tape. In addition, Exhibit R-ll(c) shows 

the frame was grounded but it doesn't show, nor does it establish, if the grounding system was effective. 

Discussion 

The evidence established by the inspector and confirmed 

by Mr. Huffman is that a test of the continuity of resistance 

of the grounding system had not been done on the plant nor had 

a record of such tests been made. 

For the foregoing reasons this citation should be affirmed. 

Civil Penalties 

The statutory criteria to assess civil penalties is contained in section llO(i) of the Act. 

One criteria involves the operator's history of previous 

violations. However, in this case there was no evidence of the 

prior history. However, inasmuch as the inspection occurred 

shortly after a start-up, I infer that the operator's history 

is favorable to the company. 

Additional criteria is whether the penalty is appropriate 

in relation to the size of the business and whether the penalty 

will affect the operator's ability to continue in business. 

It is apparent that this is a small operator and in fact only 

Mr. Hoffman engaged in the actual preparation of the sand and 

gravel. Mrs. Huffman indicated the company is doing better 

than breaking even. 

Concerning the operator's negligence, the evidence establishes that the operator was negligent in that the conditions 

were open and obvious. 

The Mine Safety Act provides for a credit for good faith 

in attempting to achieve rapid compliance. However, in this 

case the operator requested that an order be issued in order 

that he might litigate the issues involved. However, issues of 

good faith fall under a broad umbrella and I find 

1482 
from the credible evidence that Mrs. Huffman was in contact 

with MSHA in a conference call in an effort to resolve these 

citations. In addition, she previously advised MSHA of their 

most recent start-up of the business (Exhibit R-5). I conclude 

that such activities fall within the broad umbrella of good 

faith. 

The foregoing conditions apply to all of the statutory criteria for assessment of the civil penalty except the criteria 

of gravity. This criteria is now considered. 

Citation No. 2867903 (chain drive assembly): the gravity 

in this situation is low since a person would have to be within 

2 or 3 feet of the ground to contact the unguarded chain drive. 

Citation No. 2867904 (flat belt drive assembly): the gravity 

here is likewise low. The guard did not fully enclose the belt 

but the pinch points are enclosed by the guard and the position 

of the hand control as shown in Exhibit R-5(a) would not cause 

any serious problems. 

Citation No. 2867905 (head and tail pulleys on conveyor):-

this citation is to be vacated. 

Citation No. 2867906 CV-belt assembly): the gravity involved in this guarding violation is particularly troublesome 

in that the operator must pour oil to maintain the equipment 

while it is running. No doubt the oil in the immediate vicinity 

would cause a slippery condition. I believe the gravity in this 

violation is high. 

Citation No. 2867907 (sand washer): the gravity connected 

with this violation is high. Due to the size of the screw 

involved a person could lose a limb. 

Citation No. 2867908 (screw drive assembly for sand washer): 

this citation is to be vacated. 

Citation No. 2867909 (cover for electrical junction box): 

I consider the gravity for this violation to be low. In 

addition, the positioning of the box, 6 to 8 feet off the ground, 

would render likelihood of any serious injury to be remote. 

Citation No. 2867910 (checking grounding system): the 

gravity involved in this violation is high since an inadequate 

grounding system could result in a fatality. 

I conclude that the penalties set forth as to each of these 

citations in the order in this decision are appropriate. 

1483 
ORDER 

Based on the foregoing findings of fact and conclusions 

law it is hereby ordered that: 

1. Citation No. 2867903 is affirmed and a civil penalty $25 is assessed. 

2. Citation No. 2867904 is affirmed and a civil penalty 

$25 is assessed. 

3. Citation No. 2867905 is vacated. 

4. Citation No. 2867906 is affirmed and a civil penalty 

$100 is assessed. 

5. Citation No. 2867907 is affirmed and a civil penalty 

$50 is assessed. 

6. Citation No. 2867908 is vacated. 

7. Citation No. 2867909 is affi·rmed and a civil penalty 

$25 is assessed. 

8. Citation No. 2867910 is affirmed and a civil penalty 

$50 is assessed. 

Law Judge 

Distribution: 

Janice L. Holm, Esq., Jack F. Ostrander, Esq., Office of 

the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX 75202 (Certified Mail) 

of 

of 

of 

of 

of 

of 

of 

Jay Rubin, Esq., Stout & Rubin, 418 Main Street, P.O. Drawer 151, 

Truth or Consequences, NM 87901 (Certified Mail) 

/ot 

1484 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2 1989 

DONALD R. BAB BS,. 

Complainant 

v. 

PEABODY COAL COMPANY, 

Respondent 

Before: Judge Fauver 

. . 

. . 

. . 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. KENT 89-119-D 

MADI CD 89-02 

Camp 9 

On June 7, 1989, a show cause order was issued allowing 

Complainant until June 17, 1989 to show cause why his 

complaint should not be dismissed for lack of jurisdiction. 

Complainant has not filed a response to the show cause 

order. Accordingly, the complaint will be dismissed for lack 

of jurisdiction. 

ORDER 

WHEREFORE IT IS ORDERED that this proceeding is 

DISMISSED. 

Distribution: 

u}~ 7-~v~ William Fauver 

Administrative Law Judge 

Mr. Donald R. Babbs, ~oute 2, Box 248, Sturgis, KY 42459 

(Certified Mail) 

Eugene P. Schmittgens, Jr., Esq., P.O. 13ox 373, St. Louis, MO 

63166 (Certified Mail) 

iz 

1485 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

AUG 3 1989 

SECRETARY OF LABOR, . . DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH . . ADMINISTRATION (MSHA), . . Docket No. CENT 88-142-D 

ON BEHALF OF THIRTEEN . . COMPLAINANTS, . . Ada Quarry & Plant 

complainant . . 

. . v. . . IDEAL BASIC INDUSTRIES, INC., . . Respondent . . 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

The parties have reached an amicable resolution of this 

matter and on July 28, 1989, filed their motion for approval of 

settlement. .. 

Pursuant to their settlement agreement, the parties reached 

the following accord: 

1. Respondent agrees (a) not to impose requirements or 

restrictions upon its employees solely due to the employees' 

filing of State Workers Compensation claims based on disabilities 

allegedly caused by hazardous conditions existing in their work 

environment, (b) to comply with the provisions of Section 105(c) 

of the Federal Mine Safety and Health Act, and (c) that the 

employment records of the individual complainants will be 

completely expunged of all references to the circumstances involved in these matters. 

2. Respondent agrees to submit to the counsel for 

Petitioner (Complainant> a certified or cashier's check payable 

to individual Complainant R. Gene Myers in the amount of $637 

less statutory deductions for FICA, state and federal tax 

withholding in full settlement of a claim for backwages due to R. 

Gene Myers arising from his five-day suspension for failing to 

comply with Respondent's work rules regarding respiratory and 

noise protection. This payment in no way prejudices R. Gene 

Myers' right to pursue his allegation of discriminatory 

discharge. 

1486 
3. Respondent agrees to submit to the "Mine Safety and 

Health Administration-Labor" (Office of Assessments, 4015 Wilson 

Boulevard, Arlington, VA, 22203) a certified or cashier's check 

in the amount of $11,000, which civil money penalty represents 

the full penalties to be assessed against Respondent in 

connection with all complained of activity, excluding discharge, 

asserted by complainants. 

4. Petitioner agrees to withdraw from prosecuting its 

claims of discriminatory discharge. Complainant (Petitioner), 

i.e., the Secretary of Labor, after further review and 

evaluation, has determined that there is an insufficient basis 

for the Secretary to proceed with the claim of discriminatory 

discharge of any of the complainants. Pursuant to the parties' 

agreement, the individual complainants have been advised of this 

decision by the Solicitor's Office and have been informed that 

they can reserve their statutory rights to proceed independently. 

Accordingly, upon dismissal of the Secretary's case, the 

complainants are to be afforded their full statutory rights 

pursuant to 30 u.s.c. § 815(c)(3) and 29 C.F.R. § 2700.40(b), 

4l(b) and 42(a). See Roland v. Secretary of Labor, 3 MSHC 1770 

(1985). 

(Complainant and Respondent have agreed that the Secretary 

of Labor's withdrawal shall not prejudice the rights of the 

individual claimants to pursue, pursuant to 30 u.s.c. § 815(c)(3) 

and 29 C.F.R. § 2700.40(b), 41Cb) and 42(a), their allegations of 

discriminatory discharge). 

5. Each party has agreed to bear its own fees and other 

expenses incurred by such party in connection with any stage of 

this proceeding. 

6. The parties have agreed that, except for actions under 

the Federal Mine Safety and Health Act, none of the foregoing 

agreements, statements, stipulations and actions taken by 

Respondent shall be deemed an admission by Respondent of the 

allegations contained in the Complainant's (Petitioner's) charge 

or the complaint filed by the Petitioner or the Motion to Approve 

this settlement agreement. The agreements, statements, 

stipulations, findings and actions taken herein are made for the 

purpose of amicably and economically settling disputed issues of 

fact and law and they shall not be used for any purpose except 

for proceedings arising under the enforcement of the Federal Mine 

Safety and Health Act or the terms of their agreement. 

It is concluded that the settlement reached is appropriate 

and such is here approved. 

1487 
ORDER 

(1) The Complaint herein is dismissed with prejudice except 

as to any charges of discriminatory discharge brought directly by 

individual complainants which shall be without prejudice to any 

rights that they may have pursuant to statute, 30 u.s.c. Section 

815(c) and 29 C.F.R. Sections 2700.40Cb>, 41Cb) and 42(a). 

(2) Within five working days of receipt of this order of 

the Administrative Law Judge approving the Settlement Agreement, 

counsel to the Secretary of Labor will send to each complainant a 

copy of the order and settlement agreement, certified mail, 

return receipt requested. This action by the Solicitor shall be 

the formal notification of withdrawal pursuant to 30 u.s.c. 

S 815(c)(3) and 29 C.F.R. § 2700.40Cb). · 

(3) Respondent, shall pay a civil penalty totaling $11,000.00 to the Secretary of Labor within 30 days from the date 

hereof. 

(4) Within 30 days from the date of issuance hereof, 

Respondent shall pay to R. Gene Myers back pay de~cribed herein 

($637.00 less deductions). 

tl;;;.,~/1 4 ~~I A' 

Michael A. 'f,';;h-;~, Jr. 

Administrative Law Judge 

Distribution: 

Michael Olvera, Esq., and Terry K. Goltz, Esq., Office of the 

Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 

501, Gallas, TX 75202 (Certified Mail) 

Michael Towers, Esq., Fisher and Phillips, 1500 Resurgens Plaza, 

945 East Paces Ferry Road, Atlanta, GA 30326 (Certified Mail) 

/bls 

1488 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

BRUCE MITCHELL, 

Complainant 

v. 

ASARCO, INC., 

Respondent 

Before: Judge Lasher 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 

AUG 3 1989 

. . DISCRIMINATION PROCEEDING . . 

. . Docket No. WEST 88-244-DM . . MD 87-59 

: 

. . Troy Mine . . 

DECISION 

The parties have reached an amicable resolution of this 

matter. On July 17, 1989, the parties, through counsel filed 

herein a duly executed "Stipulation of Voluntary Dismissal With 

Prejudice", requesting dismissal of this matter with prejudice 

based on their settlement agreement. Based on their Stipulation, 

which inter alia constitutes in essence a withdrawal of 

Complainant's action herein, pursuant to Commission Rule 11 (29 

C.F.R. § 2700.11), this proceeding is DISMISSED with prejudice. 

Distribution: 

Henry Chajet, Esq., Doyle & Savit, 919 Eighteenth Street, Suite 

1000, N.W., Washington, D.C. 20006 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

Fifteenth Street, N.W., Washington, D.C. 20005 (Certified Mail) 

Mr. Bruce Mitchell, Box 681, Libby, MT 59923 (Certified Mail) 

/bls 

1489 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

INDUSTRIAL CONSTRUCTORS, 

Respondent 

AUG 4 1989 . . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 88-256-M 

A.C. No. 04-04917-05501 

Docket No. WEST 88-311-M 

A.C. No. 04-04917-05502 

Colosseum Mine 

DECISION 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California, 

for Petitioneri 

Michael Tanchek, Esq., Industrial Constructors 

Corporation, Missoula, Montana, 

for Respondent. 

Before: Judge Lasher 

This matter was commenced by the filing of proposals for 

assessment of civil penalties by Petitioner, seeking penalties 

for two alleged violations described in two Citations -numbered 

3286940 in Docket No. WEST 88-256-M and 3286684 in Docket No. 

WEST 88-311-M -issued by MSHA Inspector Vaughn D. Cowley on 

February 3, 1988 and May 11, 1988, respectively. 

Separate discussion of these Citation follows. 

Docket No. WEST 88-256-M 

Citation No. 3286940, alleging a "significant and 

substantial" violation was issued pursuant to Section 104(a) of 

the Federal Mine Safety. and Health Amendments Act of 1977, 30 

.u.s.c. Section 801 et seq., and charges Respondent with an 

infraction of 30 C.F.R. S 56.9022, as follows: 

"The wash water pond located at the shop area was not 

provided with a berm or guard to prevent equipment from 

driving into the pond." 

30 C.F.R. § 56.9022 provides: 

•serms or guards shall be provided on the outer bank of 

elevated roadways." 

1490 
Respondent concedes that there were no berms around the wash pond 

in question, but alleges that because it intended to build a 

fence around the pond and had materials present with which to do, 

that the "significant and substantial" (S & S) designation on 

the Citation was not warranted (T. 11-12). 

Inspector Cowley described the activities conducted at the 

shop area which he observed on his inspection on February 3, 

1988, as follows: 

"Maintenance of the mining equipment, servicing of 

equipment, maintenance, breakdowns, hoses break, brakes 

fail, whatever, they have mechanics working there, 

service equipment working." (T. 14) 

Located in this shop area, which is about 1 acre in size CT. 

34), is a "wash pad" where trucks and equipment are washed (T. 15 

Ex. P-3). Adjacent to the wash pad is the subject water 

collection pond or wash pond into which the wash water runs and 

which is about 28 feet x 28 feet in dimension and 10 feet deep 

(T. 15, 32, 38, 52, 60, 66). The pond is created by the runoff 

from wash water CT. 38, 41). The depth of the water in the pond 

would not have been ascertainable by the operator .. of a vehicle 

traveling along an adjacent roadway CT. 32, 33, 38). 

Inspector Cowley indicated that running a "complete circle" 

around the flat shop area is this gravel roadway which extends 

"right to the edge of the pond" and on which various types of 

vehicles frequently travel CT. 16, 17., 18, 20, 21, 33, 34, 35, 

39). Traffic flows in both directions adjacent to the pond CT. 

25, 27) and runs along 2 sides of the pond CT. 33, 35). 

At the time of his inspection Ca) there was a drop of one to 

two feet from the roadway to the water level of the wash pond and 

there was 8 to 9 feet of water in the pond CT. 17, 32), and (b) 

there were no berms, guards, fences or other obstacles between 

the roadway and the pond CT. 17, 21, 24). Inspector Cowley 

observed vehicle tire tracks-rubber tire tracks-- within 

approximately 3 feet of the northwest corner of the pond CT. 19, 

22, 31). 

The roadway, which was wide enough to accommodate 4 pickup 

trucks- or two 15-foot wide haulage trucks -- side by side CT. 

43, 70) did not have marked lanes, nor were there "Red lights" or 

flagmen present to control traffic CT. 47). Respondent did post 

a 5 mph speed limit for the area and its drivers were instructed 

in its "left-hand traffic" rule CT. 52, 70). 

Inspector Cowley described the hazard presented by the 

violative condition in this manner: 

1491 
"A vehicle running off into the pond, overturning, -- seriously injuring a person or even possibly in the event 

he went in and overturned, was trapped in the cab, he 

could possibly drown. 

Q. So the basic hazard would be going over the edge into 

the pond and sinking to the bottom? 

A. Yes." (T. 17) 

It was the Inspector's opinion that a serious injury, i.e., 

one resulting in "lost time (T. 25, 47), was posed by the hazard 

(T. 25). He explained further: 

"It would be a serious injury if a guy was in the truck 

and it went into the pond and tipped over, the least that 

could be expected would be at least a lost time accident, 

and a very possible fatal if he was trapped in the---cab 

went under water and the guy was trapped in the cab, it 

could have been a drowning." (T. 25, 26) 

From the outer edge of the pond, the slope of the pond drops off 

sharply to its maximum depth (T. 36, 37, 65). Because of the 

severity of the drop off, a vehicle is more likely to flip over 

(T. 36-38). 

The violative condition was abated immediately by Respondent 

by having a front-end loader put up a berm (T. 22). 

Although Respondent contends that it was planning to install 

a fence around the wash pond, Inspector Cowley did not observe 

fence materials in the area (T. 23, 44), he was not advised on 

the inspection day that management was planning to install such a 

fence (T. 24, 25), and it was his opinion, and conceded by 

Respondent--that a fence would not have been sufficient to have 

stopped large equipment having mechanical failure (T. 24, 55, 

56). 

Respondent's Maintenance Superintendent, Lewis Young, 

testified that fence materials had been acquired for the pond 

which were stacked alongside a building CT. 50) on the day the 

Citation was issued. However, no part of the fence had been 

constructed (T. 50, 55), and all of the materials for the fence 

had not been acquired (T. 55) 1/. 

1/ It is thus found that even had the fence been in place it 

would not have complied with the berm/guard standard, and 

further, by Respondent's own admission, that all the fence 

materials for the fence had not been acquired on the day the 

hazard was observed and the violation cited. 

1492 
Mr. Young offered only the following explanation as to why 

the fence (not berms or guards) had not been put up: 

51). 

"We had been busy, we'd just moved into the new shop. 

We were trying to get our maintenance program, the equipment, on line. we were still organizing in the building." 

(T. 50). 

Water had been in the pond for approximately two weeks (T. 

Respondent established that some of the larger vehiclesbecause of the height of their cabs-- would not have exposed 

their drivers to the drowning hazard mentioned by the Inspector 

had such vehicles tipped over into the pond (T. 26). Nevertheless Respondent's witness, its Maintenance Superintendent, 

admitted that small vehicles were subject to the hazard described 

by the Inspector (T. 51) and that such vehicles did traverse the 

area around the pond CT. 51, 52). 

Discussion 

It was conceded and the evidence clearly established that 

there were no berms or guards provided on the outer bank of the 

roadway at the time the condition was cited. There is no 

question but that the violation charged did occur and that it was 

very serious and resulted from Respondent's negligence since it 

had existed for approximately two weeks without the hazard being 

recognized. Respondent's primary, if not sole contention, 

involves the propriety of the "significant and substantial" 

(S & S) designation to the violation. 

A violation is properly designated S & S "if, based upon the 

particular facts surrounding· the violation there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division, National GYPSUID co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission 

listed four elements of proof for s & S violations: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard1 

(2) a discrete safety hazard--that is, a measure of danger 

to safety--contributed to by the violation1 (3) a reasonable likelihood that the hazard contributed to will result 

in an injury1 and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129 (1985), the Commission expounded thereon as follows: 

1493 
We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984). 

We have emphasized that, in accordance with the language 

of section 104(d)(l), it is the contribution of a violation 

to the cause and effect of a hazard that must be signif icant and substantial. U.S. Steel Mining Company, Inc., 6 

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

It is concluded that Petitioner carried its burden of proof 

under Mathies, supra, with respect to this violation since the 

violation was clearly established and the violative condition 

involved contributed a "measure of danger" to the vehicle 

operators who were exposed to the hazard credibly described by 

the Inspector. There is no question but that had an accident 

occurred, the miners (employees) involved would have been exposed 

to injuries ranging from broken bones to fatalities. Because of 

the slope of the pond from its outer edge, the likelihood that a 

vehicle might overturn was increased. In addition, the 

likelihood of a vehicle going into the pond was increased not 

only by the absence of berms and guards, but by the absence of .. other warning respect to the nature of the hazard posed by the 

pond. The roadway itself was relatively uncontrolled and a 

vehicle operator could not visibly determine the depth of the 

water because of its muddy CT. 33) constituency. Thus, I 

conclude that there was a reasonable likelihood that the hazard 

contributed by by the violation would result in an injury, and 

also that such injury would be of a reasonably serious nature, 

including fatalities. 

The designation of this violation as "significant and 

substantial" is affirmed. 

Docket No. WEST 88-311-M 

Citation No. 3286684, also alleging a "significant and 

substantial" violation was issued pursuant to Section 104Ca)of 

the 1977 Mine Act, and charges Respondent with an infraction of 

30 C.F.R. § 56.9087, as follows: 

"The backup alarm was not operating on the large service 

truck. n 

30 C.F.R. § 56.9087, pertaining to "Audible warning devices 

and back-up alarms", provides: 

"Heavy duty mobile equipment shall be provided with audible 

warning devices. 

1494 
When the operator of such equipment has an obstructed view 

to the rear, the equipment shall have either an automatic 

reverse signal alarm which is audible above the surrounding 

noise level or an observer to signal when it is safe to 

back up." 

Respondent concedes the occurrence of this violation but 

challenges its designation as "significant and substantial" (T. 

89). 

During the course of an inspection of the Colosseum mine on 

May 11, 1988, Inspector Cowley again inspected the shop area and 

observed a large flat-bed service truck parked outside the shop 

area (T. 80, 85). The truck, which travels all over the mine and 

over grades, carries diesel fuel and oil (T. 80-81). 

At this time, the Inspector saw the driver of the truck get 

into the truck and he asked the driver if his back-up alarm 

worked. The driver said yes. Inspector Cowley then asked him to 

put the truck in reverse and the alarm did not work. (T. 82). 

The driver's view to the rear was obstructed because of the 

oil barrels, fuel tanks mounted on the back of the· truck (T. 82). 

There is no question but that the vehicle operator had an 

obstructed view to the rear. The Inspector actually described 

the nature of the visibility obstruction in this manner: 

"Standing behind the truck approximately 25 feet looking 

you could not see either one of the mirrors on the truck 

at an angle, a "V" shape, from the back of the truck back 

to where I was standing approximately 25 feet, both mirrors 

was out of sight. Both mirrors was out of sight, he 

could n ' t see. " ( T. 8 2 ) 2 I 

The area of the mine most susceptible to the hazard posed by this 

violation was the pit area (T. 84, 86). The driver told the 

Inspector at the time that he was on his way to the pit area to 

service equipment there during the lunch hour (T. 83). During 

the lunch hour, various employees are in the pit area--normally 

6 in number -- and they are free to go where they want (T. 84). 

The Inspector gave this description of the hazard posed by 

the violation: 

2/ I infer from this testimony that if one standing behind the 

truck at a given point cannot see the mirrors that the driver--

looking through the mirrors--- could not see the reflected image 

of someone standing at such point. 

1495 
"Employees on foot being in the area is the biggest danger 

of not -- of the truck backing up and them not being -- the 

alarm not going off, or the bell going off, buzzer, whatever, not making noise to warn whoever was behind the truck· 

that it was backing up. (T. 82-83). 

xxx xxx xxx xxx 

"Well if the vehicle backed over an employee, hit him, 

knocked him down and backed over him, it very likely be 

fatal, or at least broken legs, or if he run over his 

legs, or whatever. 

(Pause) 

Judge Lasher: What are the dimensions, weights approximately of this vehicle? 

The Witness: Of this vehicle? Well, approximately eight 

feet wide and maybe 20 feet long, and the weight with a 

full load on it, probably 30,000 pounds, would that be 

close? I don't -- I don't know. With a ful~ load of diesel 

fuel and oil and--? (T. 85). 

The Inspector gave this description of the pit area and the 

service truck's function there: 

"The pit area itself depends on which level they're working 

on. Most of the ~reas are large, open, flat areas where 

they're mining ore or waste out of a blast area, there's 

a large area behind them, possibly in front of them, 

possibly on three sides of this work area, where the 

trucks come in, back up, the shovels load them. The trucks 

will leave the shovel area, come over and park away from 

the work area. The truck drivers will -- some of them stay 

in their truck. I talk to them generally. Some of them 

get out, they walk around their trucks, they generally eat 

lunch at this time. The service truck comes into the pit 

area at that time, pulls up and greases, changes oil, 

pumps oil in or whatever is necessary as far as servicing 

goes, during this lunch break." 

The Inspector was of the opinion that the service truck 

would be required to back under certain situations obtaining in 

its operation (T. 93) and he also indicated that there was no 

alternate means of alerting someone behind the truck when the 

truck was backing up (T. 100-101). 

other factors bearing on the question of the likelihood of 

the hazard coming to fruition were the presence of ex~raneous 

noise in the pit area beyond that created by the service truck 

1496 
CT. 101, 103) and the significant level of foot traffic in this 

area CT. 91, 102-103, 104-106, 113). Thus, the Inspector 

testified: 

"The fact that the truck in question, the service truck, 

works in the pit area during the noon hour when there is 

quite a bit of exposure of employees on foot in the area. 

Employees not only of Industrial Constructors, but Bond 

Gold Corporation's engineers and geologists in the area 

during the lunch hour when the service truck is in the 

process of servicing the large mining equipment in the 

pit area." 

While Respondent's Maintenance Superintendent, Lewis Young, 

was of the opinion that there would "normally" CT. 109) be no 

reason for the service truck to back up while servicing other 

equipment in the pit area, he also conceded the likelihood of the 

truck's striking employees had it been put in reverse CT. 112). 

Discussion 

The issue presented with respect to this Citation is whether 

the Inspector's determination that the violation was significant 

and substantial CS & S) should be upheld. Applying the 

Commission's analytical formula for making such determination -- set forth succinctly in its Mathies decision, supra, it is 

readily seen that there is no question as to the establishment of 

three of the four prerequisite elements. Thus, Respondent admits 

that the violation occurred, and the record strongly supports the 

finding that the violation contributed a measure of danger to 

safety. Had the violative condition resulted in an accident, it 

is equally clear that an injury of a reasonably serious nature 

would have resulted therefrom CT. 85, 86). 

The question remains: was there a reasonable likelihood that 

the hazard contributed to by the violation would result in an 

event in which there would have been an injury? 

Here, the record is clear that there was considerable foot 

traffic in the area in which this large truck was operating -- which must be considered in conjunction with the size of the· pit 

area and the potential proximity of employees to the truck CT. 

91, 94, 101-103, 112). The nature of the violation itself 

inherently carries a considerable threat of risk to the safety of 

miners: Cl> a large piece of mobile equipment, (2) operating 

without a backup alarm, where (3) the operator's vision is 

obstructed to the rear. Add to this mix the presence of a 

considerable number of miners on foot in proximity to the truck, 

no alternate means of alerting such employees of the vehicle's 

being put into reverse, extraneous noise, and one must conclude 
that a reasonable likelihood existed that the hazard contributed 

to by the violation would occur and cause an injury. The 

Inspector's determination that this violation was significant and 

substantial is affirmed. 

Penalty Assessment Factors 

The parties stipulated that Respondent, ~/ a large company 

{T. 73) with a large mine, had no history of assessed violations 

within the pertinent 24-month period preceding the occurrence of 

the violations in question {T. 13, 76). It was also stipulated 

that (1) Respondent, after notification of the violations, 

proceeded in good faith to abate the same and (2) that assessment 

of penalties would not jeopardize Respondent's ability to 

continue in business {T. 13, 76). Both violations involved have 

been previously found to be "significant and substantial". I 

have also previously found that the violation charged in Citation 

No. 3286940 was very serious and resulted from Respondent's 

negligence. 

In connection with Citation No. 3286684, the parties 

stipulated that the violation resulted from a "lo~ degree of 

negligence" and I so find. It is also found that this violation 

was very serious. 

Having considered the above mandatory penalty assessment 

criteria, penalties of $150.00 for Citation No. 3286940 and 

$100.00 for Citation No. 3286684 are found appropriate and are 

here assessed. 

ORDER 

Citations numbered 3286940 {Docket No. WEST 88-256-M) and 

3286684 {Docket No. WEST 88-311-M), including the designations 

"Significant and Substantial" thereon, are affirmed. 

Respondent is ordered to pay the Secretary of Labor within 

30 days from the date hereof the total sum of $250.00 as and for 

the civil penalties above assessed. 

~~~~~~~, Michael A. Lasher, Jr. 

Administrative Law Judge 

ll Respondent operates a "multiple bench level type" of gold 

mine and at material times had a payroll of approximately SO 

employees {T. 14). 

1498 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETAR~ OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent 

AUG 111989 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 89-5 

A.C. No. 36-00856-03615 

Rushton Mine 

Appearances: Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania for Petitioner; 

Joseph A. Yuhas, Esq., Greenwich Collieries, 

Ebensburg, Pennsylvania for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seq., the "Act," in which the 

Secretary has charged Rushton Mining Company (Rushton) with 

two violations of· regulatory standards. At hearings the 

parties submitted a Motion to Approve a Settlement agreement 

with respect to Order No. 2885754 in which Rushton agreed to 

pay a civil penalty of $500 -- a reduction of $100 from the 

initially proposed penalty. I have considered the evidence 

submitted in support of the motion and find that it comports 

with the requirements set forth under Section llO(i) of the 

Act. Accordingly the motion is approved. 

Citation No. 2885977 remains at i~sue. The citation, 

issued pursuant to Section 104(d)(l) of the Actl/, alleges a 

"significant and substantial" violation of the standard at 

30 C.F.R. ~ 75.303Ca), and charges as follows: 

1/ Section 104(d)(l) of the Act provides ad 

follows: 

If, upon any inspection of a coal 0£ other mine, an 

authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such 

1499 
Preshift examinations of the N-14, No. 2 supply 

haulage entry were not being conducted. The supply 

haulage entry begins one crosscut inby station 8013 

for a distance of approximately 2500 feet. No 

dates, times or initial3 were preoent in the entry 

to signify that examinations were conducted nor 

were [sic] any record of preshift examinations 

available. The No. 2 entry track-trolley haulage 

ends at station 8032 where the S&S rubber tired 

battery motor transports the supplies to the 

section. Within the 2500 feet there were 3 full 

rubber tired supply cars containing cement blocks, 

for permanent type stoppings, roof bolts and roof 

bolt plates. There were others supplies stored in 

crosscuts that had been removed from supply cars. 

It was necessary this shift for the S&S tractor to 

go off the section into the No. 2 entry for roof 

straps and it was necessary for the section foreman 

to conduct a preshift examination. This 

examination was conducted after a discussion about 

the situation with the safety inspector and 

section foreman. This entry was identified as the 

secondary escapeway from the N-14, 016 section, on 

all mine maps such as temporary notation map, 

section map, the map posted for the miners and the 

main map retained in the engineers office. 

cont'd fn.l 

violation do not cause imminent danger, such 

violation is of such nature as could significantly 

and substantially contribute to the cause and 

effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused 

by an unwarrantable failure of such operator to 

comply with such mandatory health or safety 

standards, he shall include such finding in any 

citation given to the operator under this Act. If 

during the same inspection or any subsequent 

inspection of such mine within 90 days after the 

issuance of such citation, an authocized 

representative of the Secretary finds another 

violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection Cc> to be withdrawn from, 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has b9en abated. 

1500 
The cited standard, 30 C.F.R. § 75._303(a), prov!_des in 

part as follows: 

Within 3 hours immediately preceding·the beginning 

of any shift, and before any miner in such shift 

enters the active workings of a coal mine, 

certified persons designated by the operator of the 

mine shall examine such workings and any other 

underground area of the mine aesignated by the 

Secretary or his authorized representative. Each 

such examiner shall examine every working section 

in such workings and shall make tests in each such 

working section for accumulations of methane with 

means approved by the Secretary for detecting 

methane, and shall make tests for oxygen deficiency 

with a permissible flame safety lamp or other means 

approved by the Secretary; examine seals and doors 

to determine whether they are functioning properly; 

examine and test the roof, face, and rib conditions 

in such working section; examine active roadways, 

travelways, and belt conveyors on which men are 

carried, approaches to abandoned areas, and 

accessible falls in such section for hazards; test 

by means of an anemometer or other device approved 

by the Secretary to determine whether the air in 

each split is traveling in its proper course and in 

normal volume and velocity; and examine for such 

other hazards and violations of the mandatory 

health or safety standards, as an authorized 

representative of the Secretary may from time to 

time require. 

* * * 

Such mine examiner shall place his initials and the 

date and time at all places he examines. 

* * * 

Upon completing his examination, such mine exam.ine.c 

shall report the results of his examination to a 

person, designated by the operator to receive such 

reports at a designated station on the surface oi 

the mine, before other persons anter the 

underground areas of such mine to work in such 

shift. Each such mine examiner shall also .cecord 

the results of his examination with ink or 

1501 
indelible pencil in a book approved by the 

Secretary kept for such purpose i~ an area on the 

surface of the mine chosen by the operator to . minimize the danger of destruction by fire or other 

hazard, and the record shall be open for inspection 

by interested persons. 

Rushton admits that its mine examiner did not in fact 

place his initials and the date and time of his examination 

within the cited No. 2 supply haulage entry and therefore 

admits to this extent that a violation of the cited standard 

was committed. Rushton denies however that a proper preshift 

examination was not performed and was not recorded in the 

preshift examination book. Rushton also argues that the 

violation was neither "significant and substantial" nor the 

result of its "unwarrantable failure" to comply with the 

cited standard. 

Accocding to the undisputed testimony of MSHA Inspector 

Donald Klemick, he was present in the cited No. 2 supply 

haulage entry on both May 8 and May 9, 1988. On May 8, 1988, 

neither Klemick nor the company representative, Safety 

Inspector Bob Crain, were able to locate any dates, times or 

initials within the entry. Again on May 9, 1988, neither 

KlemicK nor Crain (nor on this occassion the miner's 

representative) were able to locate any evidence of dates, 

times or initials in the cited entry. According to Klemick 

there was no evidence of even old dates, times or initials 

evidencing earlier examinations of the entry. 

Dennis Stoltz the section foreman responsible for 

performing the preshift examination in the cited entry within 

three hours of the commencement of the 8:00 a.m. to 4:00 p.m. 

shift on May 9, 1988, testified that he in fact did preshift 

the cited area between about 6:15 a.m. to 7:00 a.m. He 

explained at hearing why he was unable to place the date, 

times and his initials in the No. 2 entry as required by the 

cited regulation. His testimony was as follows: 

All right. My normal routine because I had done 

this other, was to travel to the end. Well, I 

engaged in this pump by myself which weighs hundr~ds and hundreds of pounds and I got into a 

mess and got tied up. On the way b3.ck, I was 

negligent and I was in a hurry and did not stop 

and date my usual areas of datings. (Tr. 63) 

1502 
Stoltz was unable to satisfactorily explain why the 

inspection party had been unable to locate any older dates, 

times or initials anywhere in the cited entry. . . 

I find Stoltz's testimony to be less than credible. He 

maintains that he conducted all of the examinations required 

by section 303(a) in the cited entry but was·in too much of a 

hurry to place, the date, time and his initials in the entry. 

Section 303Ca) requires, among other things, tests for 

accumulations of methane, oxygen deficiency, examination of 

seals and doors to determine whether they are functioning 

properly, examinations and testing of the roof and ribs 

examination of active roadways, etc. In particular I note 

that the regulation requires not only the examination but 

also the testing of roof conditions. Stoltz admitted that he 

was "negligent" and "in a hurry" and made only a visual 

examination of the roof as he rode through the entry. Thus 

even if he did perform a cursory observation of conditions 

while passing through the entry it is clear that he did not 

properly perform all of the required tests. Indeed I do not 

find credible that Stoltz had sufficient time to perform a 

proper preshift examination in the entry yet did not have 

sufficient time to place the time, date and his initials in 

that entry. Under the circumstances I cannot find that the 

a preshift examination was performed on May 9, 1988, in the 

cited entry. 

The testimony of Inspector Klemick regarding gravity and 

negligence is however largely unhelpful. In this regard the 

record shows the following colloquy: 

Q [By Government Counsel] Now, looking at what has 

been admitted as Government's Exhibit Number 1 

under Section 10, Gravity. It is chec~ed off as 

"Reasonably likely to result in lost work days of 

restricted duty." 

Could you explain the lose work days or the 

restricted duty injury that you were referring to 

in this citation? 

A [Inspector Klemick] More likely from the fall 

of the roof and anything else. This, up near 

the section there was seine roof that had been 

supported~ however, it was a fall coming 

through there or a car. It was taking water 

and throughout the area that the pre-shift 

examinations are intended to preclude any 

hazardous situation which from day to day, 

shift to shift can occur. 

1503 
Q Why did you rate it as "reasonalily likely." 

A Because of the fact that as ·far as evident 

records or evident that people were in that 

area pre-shift, there was not any and this was 

a high negligent situation because the operator 

is well aware of his requirement. 

Q You say that it was a high negligent situation. 

Why was it a high negligent situation? 

A Because of the lack of the operator going into 

these areas and making pre-shift examinations. 

Q Do you or do you not believe that the operator 

engaged in aggravated conduct in this 

violation? 

A I do, because, I have never encountered a 

situation like this at Rushton Mine that they 

did make any examinations of this particular 

situation or area; especially, pre-shift as 

important as they are. (Tr. 37-38) 

There is nevertheless sufficient evidence elsewhere in 

the record to conclude that the violation was the result of 

Rushton's "unwarrantable failure". The evidence is 

undisputed that co.mpany representative Bob Crain, 

accompanying Inspector Klemick, was unable to locate any 

dates, times, or initials within the cited entry on 

May 8, 1988, thereby placing management on notice that 

pre-shift examinations were probably not being conducted in 

that entry. On the following day when the citation was 

issued, again no dates, times or initials were found in the 

cited entry. It may reasonably be inferred from this 

evidence that even after notice the operator continued in its 

failure to conduct required pre-shift examinations in the 

cited entry. This is evidence of gross negligence and 

aggravated conduct sufficient to constitute "unwarrantable 

failure". Emery Mining Co., 9 FMSHRC 1997 (1987), appeal 

pending (D~C. Cir. No. 88-1019). 

The violation was also serious and "significant and 

substantial". See Mathies Coal Co., 6 FMSHRC 1 (1984). I 

agree with the Secretary's analysis of this issue in her 

brief: 

1504 
The intent of the pre-shift requirement is to 

prevent miners from entering ar~ai that may contain 

unexpected or unanticipated ha~ards. · Miners 

travelled this supply haulageway to mqve equipment 

through the haulageway while inspector KlemicK was 

still at the mine, on the day he issued the 

citation; mine management used this hauiageway to 

transport equipment. The failure to pre-shift this 

area exposed these miners to any variety of 

unforeseen hazards. The failure to pre-shift 

contributed to a discrete safety hazard that would 

result in a reasonably serious injury. Therefore, 

the order was properly rated as significant and 

substantial. 

ORDER 

Section 104(d)(l) Order No. 2885754 and 

Section 104(d)(l) Citation No. 2885977 are hereby affirmed. 

Considering the available criteria under Section llO(i) of 

the Act Rushton Mining Company is directed to pay civil 

penalties of $500 and $600 respectively for the violations in 

the above order and citation within 30 days of the date of 

this decision. 

Law Judge 

Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Joseph A. ~uhas, Esq., Greenwich Collieries, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

nt 

1505 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent 

AUG 11 \989 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-17 

A.C. No. 36-00856-03616 

Rushton Mine 

Appearances: Linda Henry, Esq., Office of the Solicitor 

U.S. Department of Labor, Philadelphia, 

Pennsylvania for Petitioner; 

Joseph A. Yuhas, Esq., Rushton Mining Company 

Ebensburg, Pennsylvania for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor against the Rushton 

Mining Company (Rushton) pursuant to section 105(d) of the 

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

et seq., the "Act·," in which the Secretary has charged one 

violation of the regulatory standard at 30 C.F.R. § 75.301. 

The issue before me is whether Rushton has committed the 

violation as alleged and, if so, what is the appropriate 

civil penalty for the violation. 

The citation at issue, No. 2884010, charges a 

"significant and substantial" violation of 30 C.F.R. S 75.301 

and alleges as follows: 

The active workings on the outby side of bleeder 

evaluation point No. 9 was [sic] not being 

ventilated by a current of air containing not less 

than 19.5 volume per centum of oxygen as ~as 

indicated using and approved MX240 oxygen-methane 

detector. The detector indicated that 19.l volume 

per centum of oxygen was ventilating the immediate 

outby side of the evaluation point where pecsons 

are required to evaluate the 3, 4 and 5 butts 

1506 
bleeder systems. Bottle sample No. 1 was collected 

to substantiate the condition. 

The citation was subsequently modified on 

March 21, 1988, as follows: 

Citation No. 2884010 is being modified to reflect 

the analytical results of the air sample. The per 

centum of 6xygen was 19.2. The per centum of 

carbon dioxide was 1.4 which was more than the 

allowable 0.5 per centum. This additional 

information shall therefore be inclusive in the 

citation as part of the violation. 

The cited standard, 30 C.F.R. § 75.301, provides in part 

as follows: 

All active workings shall be ventilated by a 

current of air containing not less than 19.5 volume 

per centum of oxygen, not more than 0.5 volume per 

centum of carbon dioxide, and no harmful quantities 

of othec noxious or poisonous gases ••• 

Rushton does not dispute the oxygen and carbon dioxide 

readings obtained by MSHA Inspector Donald Klemick but 

maintains that the area in which these readings were 

obtained, bleeder evaluation point Number 9, was not within 

the "active workings" of the mine. Indeed it is not disputed 

that this bleeder evaluation point is part of the bleeder 

system. If the cited bleeder evaluation point was not within 

the "active workings" then clearly there was no violation of 

the cited standard. 

The same issue has previously been litigated before 

several judges of this Commission. In U.S. Steel Corp., 6 

FMSHRC 291 {1984) Judge Koutras concluded that "when read 

together with the other standards in Part 75, a bleeder entry 

is not active workings is a sound and logical interpretation 

and application of the cited standard." Recently in 

Rochester and Pittsburgh Coal Co., FMSHRC {July 18, 

1989) {Docket Nos. PENN 88-164-R and PENN 88-2~Judge 

Weisberger similarly concluded that a bleeder system is not a 

part of th~ "active workings" of the mine. These decisions 

are based on sound logic and policy reasons and are therefore 

followed here. I therefore find that bleeder evaluation 

point Number 9 here cited is not within the "active wor~ings" 

of the subject mine. Accordingly there can be no violation 

of 30 C.F.R. § 75.301 as charged. 

1507 
ORDER 

Citation No. 2884010 is vacated and these proceedings 

are dismissed. 

./, 

·~/- ~ 

Judge 

Distribution: 

Linda Henry, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Room 14480 Gateway Building, 

Philadelphia, PA 19104 (Certified Mail) 

Joseph A. Yuhas, Esq., Rushton Mining Company, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

nt 

1508 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AUG 111989 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-121 

A.C. No. 05-00301-03629 

Dutch Creek No. 1 Mine 

MID-CONTINENT RESOURCES, INC.,: 

Respondent : 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

Upon motion for approval of a proposed settlement of the 16 

Citations and Orders originally involved, and the same appearing 

proper and fully supported in the record, the settlement is 

approved. 

A summary of the agreement reached follows: 

Citation/Order No. 

3043587 

3043593 

3044798 

3944799 

2504970 

2832602 

2832603 

2503932 

2503864 

2503867 

2503868 

2503869 

2334828 

2334829 

2334830 

2503874 

Proposed 

Penalty 

$1,400.00 

1,300.00 

1,100.00 

1,350.00 

1,300.00 

1,000.00 

1,000.00 

1,100.00 

1,000.00 

1,300.00 

1,000.00 

900.00 

1,100.00 

1,200.00 

1,100.00 

1,000.00 

Amended 

Proposed Penalty 

$1,400.00 

780.00 

1,100.00 

810.00 

5 0 0 • O 0 < 10 4a > 

250.00 

250.00 

1,100.00 

1,000.00 

1,300.00 

600.00 

500.00 (104a) · 

660.00 

O. 00 <vacated) 

340.00 

300.00 

As part of the overall settlement, Respondent Mid-Continent 

agrees to withdraw all defenses in all pending cases, specifically as to the "MSHA enforcement abuse" issue. 

1509 
The above settlement actually reflects and incorporates 

various agreements reached at formal hearing in March, 1989. 

Thus, as to two 104(d)(2) Orders listed below, MSHA agreed 

at the hearing Cl> that such did not result from the mine 

operator's "unwarrantable failure" to comply with the pertinent 

standard, (2) that such should be modified to 104(a) Citations, 

and (3) that the penalties should be reduced from the original 

assessments as follows: 

Original Agreed 

Section/Order No. Modification Assessment Penalty 104(d)(2) Order TO 104(a) 

Order No. 2503869 Citation $ 900.00 $500.00 

104(d)(2) To 104(a) 

Order No. 2504970 Citation $1,300.00 500.00 

As to two 104Ca) Citations, numbered 2832602 and 2832603, 

since neither violation was charged to be "significant and 

substantial" or considered serious, Petitioner at the hearing 

agreed to penalty reductions for both from $1,000.00 to $250.00. 

Also at the hearing, Petitioner, after a re-evaluation of 

its case, withdrew its prosecution of Section 104Cd)(2) Order No. 

2334829, and moved to vacate such. Such motion was granted on 

the record, is reflected in the written settlement motion, and is 

here affirmed. 

ORDER 

1. Withdrawal Orders numbered 2503869 and 2504970 are 

modified to 104Ca) Citations and withdrawal Order No. 2334829 is 

vacated. 

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

to pay to the Secretary of Labor on or before OCtober 1, 1989, 

the sum of $10,890.00 as and for the civil penalties agreed on 

and above assessed. 

~~.I~ .tf: ~JI, ~[chael A. Lasher, Jr. 

Administrative Law Judge 

1510 
Distribution: 

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

Department of Labor, 1585 Federal Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail) 

/bls 

1511 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 AUG 111989 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v •. 

MID-CONTINENT RESCXJRCES, 

Respondent 

. . 

. . 

. . 

. . 

. . INC.,: . . 

Docket No. WEST 88-122 

A.c. No. 05-00301-03630 

Dutch Creek No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

Upon Petitioner's motion for approval of a proposed 

settlement of the 7 Orders involved, and the same appearing 

proper and fully supported in the record the settlement is 

approved. 

A summary of the agreement reached follows: 

Order No. 

2503875 

2503876 

2503877 

2503878 

2503879 

2503880 

2334839 

Proposed 

Penalty 

$1,100.00 

1,300.00 

1,100.00 

1,300.00 

1,000.00 

1,100.00 

1,100.00 

Amended 

Proposed Penalty $ 660.00 

780.00 

660.00 

810.00 

600.00 

660.00 

660.00 

As part of the overall settlement, Mid-Continent agrees to 

withdraw all defenses in all pending cases, specifically as to 

the "MSHA enforcement abuse" issue. 

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

pay to the Secretary of Labor on or before August 1, 1989, the 

sum of $4,830.00. 

~~~/~~A Michael A. Lasher, Jr. 

Administrative Law Judge 

1512 
Distribution: 

Margaret Miller, Esq., Office of the Solicitor, u.s. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail) 

/bls 

1513 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 16 1989 

SECRETARY OF LABOR, 

MINE SAFE·ry ANO HEALTH 

ADMINISTRA'rION (MSHA), 

Petitioner 

v. 

JUNIOR PHILLIPS, Employed by 

SCARAB ENERGY CORPORATION, 

Respondent 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-10 

A.C. No. 40-02611-03563-A 

No. 2 Mine 

DECISION 

Appearances: J. Philip Smith, Esq., Office of the Solicitor 

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Junior L. Phillips, Clinton, Tennessee, pro se. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

Section llO(c) of the Federal Mine Safety artd Health Act of 

1977, 30 u.s.c. § 801 et seq., the "Act," charging 

Junior Phillips as an agent of a corporate mine operator with 

knowingly authorizing, ordering, or carrying out the 

corporate mine operator's violation of a mandatory safety 

standard under _30 C.F.R. § 1725(a). 

The alleged corporate mine operator, Scarab Energy 

Corporation (Scarab), was charged with a violation of the 

mandatory.safety standard at 30 C.F.R. § 1725(a) under 

Citation No. 2789152. The citation alleged as follows: 

The 488 S&S Scoop (approval No. 2G-2831-5, Serial 

No. 4481951) was not maintained in safe operating 

condition in that the 128-volt motor leads and the 

control cables were run over the top of the scoop, 

and at the center s~ction on the scoop the bearingretaining nut and retaining ring were missing 

allowing the center section to 1nove up and down. 

The brakes on the scoop were not in operative 

condition. This condition was one of the factors 

that contributed to the issuance of Imminent Danger 

1514 
Order No. 2789161 on 6/15/87. Therefore no 

abatement time was set. (Defective-for one month.) 

The cited standard provides that "mobile and stationery 

machinery and equipment shall be maintained· in safe operating 

condition and machinery or equipment in unsafe condition 

shall be removed from service immediately." 

Section llO(c) of the Act provides in part as follows: 

Whenever a corporate operator violates a mandatory 

health or safety standard ••• , any director, 

officer, or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation, 

failure, or refusal shall be subject to the same 

civil penalties, fines and imprisonment that may be 

imposed upon a person under subsection (a) and (d). 

The evidence set forth by the Secretary at hearing is 

essentially undisputed. The Secretary's evidence establishes 

that Scarab was indeed a corporate mine operator and that 

Junior Phillips at the time of the alleged violation on 

June 11, 1987, was an agent of that corporate mine operator. 

The undisputed evidence further shows that on June 11, 1987, 

at about 5:15 a.m., shuttle car operator William K. Disney 

was killed as he was driving a mantrip scoop under an 

overcast. The work crew had entered the mine at about 

4:45 a.m. that day under the supervision of foreman Kenneth 

Jackson. They traveled on a flat bed rail car to the end of 

the track then boarded the subject scoop operated by Disney 

for transportation to the working section. As the scoop 

traveled under the belt overcast in the No. 2 entry of the 

001 section, a powered lead placed on top of the scoop was 

pinched against an "I" beam supporting the overcast. Disney 

reversed the scoop and traveled about two feet backward when 

his head was crushed against a second "I" beam. 

According to the undisputed testimony of MSHA Special 

Investigator Lawrence Layne, Disney's death was caused in 

part by the defective condition of the scoop. In particular 

Layne noted that the absence of bushings, retainer rings and 

nuts on the pin connecting the two sections of the scoop . allowed the center section to flex 4 to 5 inches. Because of 

this f leKing the scoop was unable to pass under the 

protruding "I" beam. It was then necessary for Disney to 

reverse the scoop thereby causing his head to be crushed 

against another "I" beam. This deficiency in the scoop ~as 

clearly an unsafe condition, a violation of the cited 

standard and of high gravity as evidenced by the resulting 

fatality. 

1515 
The evidence is also undisputed that at the time of the 

fatality Junior Phillips was second-in-command at the subject 

No. 2 Mine and had served in that capacity during the time 

that the scoop had been ope.eating in an unsafe condition. 

Phillips was also the direct supervisor of foreman Jackson 

and served under mine superintendent Sherman Carroll. 

According to MSHA Inspector Don McDaniel either Phillips or 

Carroll had informed him that parts had been ordered for the 

repair of tne center section of the subject scoop more than a 

month before the accident. 

Alvin Goad was working as a roof bolter operator at the 

time of the accident. He testified that the defective 

conditions in the cited scoop had been "general knowledge" at 

the mine. He opined that Phillips in particular was aware of 

the defective condition of the scoop. He also confirmed that 

Phillips was acting in a supervisory capacity at the time of 

the accident. The undisputed statement of general laborer 

William Gouge further corroborates the evidence that the 

center section of the scoop had been defective long before 

the accident. Gouge stated that he told Phillips concerning 

the condition of the scoop about siK months before the 

accident. 

Within this fra,nework of undisputed evidence it is clear 

that Phillips knew of the defective condition of the cited 

scoop at least a month before the fatal accident and failed 

to have this scoop removed from service._ It is therefore 

clear that he was grossly negligent in his duties as an agent 

of the mine operator~ In this regard I have not disregarded 

the testimony of Scarab owner Terry Reaves, that Carroll was 

superintendent of the_No. 2 mine at the time of the fatality 

and that Phillips waa the "number two man" serving under 

Carroll at that time. Clearly Phillips was in a position in 

which, knowing of the defective condition of the scoop, he 

had the authority and responsibility to have the scoop 

removed fro1n service until it was in safe wor.1<.ing condition. 

In assessing a civil penalty in this case I have also 

considered other relevant criteria under section llO(i) of 

the Act. Mr. Phillips declined to present any evidence 

concerning his financial condition or ability to pay a civil 

penalty in this proceeding. The Secretary acknowledges that 

there is no history that Mr. Phillips has pre~iously been 

subject to proceedings under section llO(c) of the Act. 

Under the circumstances I find that the Secretar~'s proposed 

penalty of $2,000 is appropriate. 

1516 
ORDER 

Mr. Junior L. Phillips is directed to ay a civil 

penalty of $2,000 within 30 days of-the da of this 

decision. 

Law Judge 

Distribution: 

J. Phillip Smith, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Suite 400, 

Arlington, VA 22203 (Certified Mail) 

Mr. Junior L. Phillips, Rt. #5, Box 186-A, Clinton, TN 37716 

(Certified Mail) 

nt 

1517 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMl_SSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 161989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . Docket No. CENT 88-140-M 

A.C. No. 41-02522-05513 

v. 

Damon Quarry 

V H W INCORPORATED, 

Appearances: 

Before: 

DECISION 

Brian L. Pudenz, Esq., Office of the Solicitor, 

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

Petitioner; 

Russell E. Mackert, Esq., Mackert & Garrett, 

Houston, Texas, for the Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), 

seeking civil assessments for 17 alleged violations of certain 

mandatory safety standards found in Part 56, Title 30, Code of 

Federal Regulations. The respondent filed an answer denying the 

alleged violations, and a hearing was held in Houston, Texas. 

Issues 

The issues presented in this proceeding are (1) whether the 

respondent has violated the provisions of the Act and implementing regulations as alleged in the proposals for assessment of 

civil penalties and, if so, (2) the appropriate civil penalties 

that should be assessed against the respondent for the alleged 

violations based upon the .criteria set torth in section llO(i) of 

the Act. 

Applicable Statutory and Regulatory Provisions 

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

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

1518 
2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

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

Stipulations 

The parties stipulated in relevant part to the following 

(Exhibit AIJ-1): 

1. The respondent is subject to the jurisdiction of the 

Act, and the alleged violations took place in or involves a mine 

that has products which affect commerce. 

2. The name of the mine is Damon Quarry, and it is located 

near Damon, Texas in Brazoria county. The size of the company is 

21,166 production tons or hours worked per year and the size of 

the mine is 21,166 production tons or hours worked per year. 

3. The imposition of any penalty in this case will not 

affect the operator's ability to continue in business. 

4. The total number of inspection days in the preceding 

twenty-four months is seventeen. 

5. The total number of assessed violations (including 

single penalties timely paid) in the preceding twenty-four months 

is twenty two. 

6. On March 10 through April 26, 1988, an inspection was 

conducted by MSHA Inspectors James s. Smiser and Robert J. 

Kinterknecht, and ·they issued 17 section 104(a) citations. All 

of the citations were abated by the respondent. 

Findings and Conclusions 

Inspector Smiser testified that the respondent is a crushed 

stone operator who operates a small surf ace quarry producing 

abrasive black limestone from different areas of one pit. He 

stated that the respondent employs 12 to 14 miners, has a very 

good compliance record,· and has always attempted to address any 

safety problems in a timely manner. He characterized the respondent as a small-to-medium sized operator, and stated that the 

quarry pit is a small operation. Respondent's mine supervisor 

John Duke agreed that the respondent's normal employment consists 

of 12 to 14 miners (Tr. 30-31). 

Contested section 104(a) non-"S&S'' Citation Nos. 3273935. 

3273939, 3273894, and 3273898, are all ''single penalty" citations 

which were issued during regular mine inspections on March 10, 

and April 21, and 26, 1988. MSHA seeks civil penalty assessments 

in the amount of $20 for each of the citations. The respondent 

1519 
agreed to pay the proposed civil penalties for these citations, 

and to withdraw its contests {Stipulation #3 (exhibit ALJ-1; Tr. 

6). I considered the respondent's request as a motion to approve 

a settlement pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, 

and after review of the citations and the pleadings, the motionwas approved from the bench, and my decision in this regard is 

herein reaffirmed. 

With regard to section 104Ca) ''S&S" Citation Nos. 3273897 

and 3273899, issued on April 26, 1988, citing violations of 

mandatory safety standards 30 C.F.R. § 56.9002 and 56.5003, the 

respondent agreed to pay the full amounts of the proposed civil 

penalty assessments of $85 and $98, and to withdraw its contests 

and request for a hearing {Tr. 8-9). I considered this request 

as a motion for approval of a settlement, and approved it from 

the bench. My decision in this regard is herein reaffirmed. 

Section 104Ca) "S&S" Citation No. 3273893, was issued by 

MSHA Inspector Robert J. Kinterknecht on April 20, 1988, and he 

cited a violation of mandatory safety standard 30 C.F.R. 

§ 56.12019. The cited condition or practice states as foliows: 

The access to the electrical switch gear in the N. 

West wall of the shop was not being maintained in that 

misc. diesel motor parts and {l) electrical Toshiba 

40 H.P. 4-pole Nema design, serial No. 80905691 was in 

the walkway to the switch gear. 

Mandatory safety standard 30 C.F.R. § 56.12019, provides as 

follows: "Where access is necessary, suitable clearance shall be 

provided at stationary electrical equipment or switchgear." 

The evidence establishes that MSHA Inspector James s. Smiser 

accompanied Inspector Kinterknecht during the inspection on 

April 20, 1989, and that the citation was served on respondent's 

mine supervisor, John Duke. Mr. Smiser and Mr. Duke were present 

at the hearing, and they testified in this proceeding. Both 

Mr. Smiser and Mr. Duke viewed the cited conditions in question, 

and petitioner's counsel asserted that the citation should be 

reduced to a non-"S&S" citation because the likelihood of an 

injury was unlikely, and that the materials which were present in 

the area were from an engine which was being dismantled and that 

it was a temporary, rather than a continuing condition. The 

violation was immediately abated by simply moving the engine 

parts to one side. 

Petitioner's counsel confirmed that the intent of the 

standard is to provide clearance so that someone could have ready 

access to the electrical switch controls, and that the presence 

of the engine parts did not provide ''straight-line" access. 

Although the only conceivable hazard was a tripping hazard if 

someone stumbled over the engine parts, counsel confirmed that 

1520 
there was enough room to go around the parts to access the 

switch, and that someone would likely go around the parts to do 

this. 

Counsel proposed to reduce the proposed civil penalty 

assessment of $74 to $20 as a non-"S&S'' single penalty citation, 

and Inspector Smiser agreed (Tr. 14-16). I considered the argument presented by petitioner's counsel as a motion for approval 

of a proposed settlement pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30, and it was approved from the bench (Tr. 16). 

My bench decision in this regard is herein reaffirmed, and the 

section 104(a) "S&S" citation is modified to a single penalty 

non-"S&S" citation. The respondent agreed to pay the modified 

civil penalty assessment of $20 for the violation in question, 

and to withdraw its contest. 

Section 104(a) "S&S" Citation No. 3273896, was issued by 

Inspector Kinterknecht on April 26, 1988, and he cited a violation of mandatory safety standard 30 C.F.R. § 56.12032. The 

cited condition or practice states as follows: 

The Dieplex box on the side of the crusher frame 

located just under a transformer was not provided with 

a cover plate. There was an orange colored extension 

cord plugged into it. This is a 120 VAC. 

Mandatory safety standard 30 C.F.R. § 56.12032, provides as 

follows: 

Inspection and cover plates on electrical equipment and junction boxes shall be kept in place at all 

times except ·during testing or repairs. 

Petitioner's counsel stated that the parties proposed to 

settle this violation by a slight reduction in the original civil 

penalty assessment, from $74 to $60, and that the respondent has 

agreed to pay the settlement amount in satisfaction of the violation. In support of this proposal, counsel stated that after 

consulting with the inspectors, they agreed that the box in 

question was located out of sight under a transformer, and that 

the respondent's negligence was "low" rather than "moderate." 

The inspectors also agreed that cover plates were in place on· 

other equipment, and that the plate in question had been removed 

for some unexplained reason, and simply not replaced (Tr. 17). 

Abatement was achieved immediately by the replacement of the 

cover plate. The proposed settlement was approved from the 

bench, and my decision in this regard is herein reaffirmed (Tr. 

17) . 

1521 
Section 104(al "S&S" Citation No. 3273937, was issued by 

Inspector Kinterknecht on March 10, 1988, and he cited a violation of mandatory safety standard 30 C.F.R. § 56.14001. The 

cited condition or practice states as follows: 

The head pulley on the shaker belt was not 

guarded, thus exposing a pinch point to persons that 

would have to work around this area cleaning up and 

maybe grease (sic) and maintenance work (sic). 

Mandatory safety standard 30 C.F.R. § 56.14001, requires 

that pulleys and similar exposed moving machine parts which may 

be contested by persons, and which may cause injury to persons,. 

be guarded. 

Resnondent•s Mine Supervisor John Duke testified that the 

unguarded pulley belt in question was located out of reach and 

approximately 10 feet above a platform on which the shaker was 

located. He confirmed that while one could stand on the shaker 

and reach the belt, no one is permitted to stand on a vibrating 

shaker at any time, and that any maintenance work which would 

place someone in close proximity to the belt while standing on 

the shaker would only be done while the equipment was deenergized 

and inoperative (Tr. 18-20). 

Inspector Smiser, who accompanied Inspector Kinterknecht 

when he issued the citation, agreed with Mr. Duke's testimony and ~greed that it would be unlikely that anyone would come in contact with the unguarded belt during the normal operation of the 

shaker (Tr. 20-21). 

Petitioner's ·counsel stated that in view of the fact that it 

was unlikely that anyone would contact the unguarded belt and 

sustain an injury, he proposed to modify the citation to a non-

"S&S" citation, and to reduce the civil penalty assessment from 

$136 to $20. Respondent's counsel joined in the motion, and 

agreed that the respondent would pay the modified civil penalty. 

Upon further consideration of the proposed settlement disposition 

for this citation, it was approved from the bench (Tr. 21) . My 

bench decision in this regard is herein reaffirmed. 

Section 104(a) "S&S" Citation Nos. 3062190, 3062191, and 

3062192, were issued sequentially by Inspector Smiser on 

March 17, 1988, after he found that three motors on a shaker 

conveyor were not being ~rotected against excessive overloads by 

fuses of the correct type and capacity. Two of the motors were 

7.5 horsepower, and the third one was a 5 horsepower motor, and 

they were all protected by one 100 amp. fused disconnect. 

Inspector Smiser cited violations of mandatory safety standard 

30 C.F.R. § 56.12001, which requires that all circuits be protected against excessive overloads by fuses or circuit breakers 

of the correct type and capacity. 

1522 
Petitioner's counsel stated that the parties proposed to 

settle these violations by joining the three citations into one 

citation which would be assessed at $136, and that the inspector's "S&S" finding would stand (Tr. 21-22). Counsel proposed to 

vacate Citation Nos. 3062191 and 3062192, and to modify Citation 

No. 3062190, to include all three of the cited motors, and that 

this citation will be affirmed as an "S&S" citation, and assessed 

a civil penalty in the amount of $136 (Tr. 29). 

Inspector Smiser confirmed that he issued the citations 

after finding that the three motors were being protected by one 

100 amp. disconnect fuse system rather than three individual 

fuses, and that this was contrary to the National Electrical Code 

which requires individual fuse protection for each motor. He 

stated that protecting each of the motors by one large 100 amp 

fuse disconnect would not afford adequate short circuit protection for each of the motors, and that section 75.12001 requires 

circuits to be protected against excessive overload by fuses of 

the correct type and capacity. 

Mr. Smiser stated that the hazard presented involved inadequate short circuit protection which could result in an electrical shock should anyone touch any energized equipment frames. He 

agreed that such a hazard would only be present in the event of a 

fault condition, which may cause a short circuit in the motors. 

Mr. Smiser confirmed that the violations were timely abated 

by the respondent by providing adequate fuse protection for each 

of the individual motors. Although he extended the abatement 

times because of the difficulty encountered by the respondent in 

obtaining the nec~ssary parts to correct the conditions, he 

confirmed that the respondent exercised good faith in correcting 

the conditions. 

Mr. Smiser confirmed that all of the conditions cited in the 

three individual citations were all the result of one violation, 

namely, the failure to provide fuses of the correct capacity to 

protect the motors from short circuits. He also confirmed that 

he issued three separate violations because of office policy, but 

agreed that the issuance of one citation incorporating the same 

violative conditions with respect to each of the motors would 

effectively take care o~ the problem. 

With regard to the proposed settlement by vacating Citation 

Nos. 3062191 and 3062192, and incorporating the conditions as 

part of Citation No. 3062190, Mr. Smiser expressed agreement with 

this proposal and confirmed that it was a reasonable resolution 

since all of the citations essentially stemmed from one common 

violative condition. Mr. smiser also agreed that payment of the 

full amount of $136 for "S&S" Citation No. 3062190, as amended, 

to incorporate the two other motors was reasonable and that he 

1523 
would have no objection to the proposed settlement disposition 

for the three citations which he issued (Tr. 22-29). 

The proposed settlement was approved from the bench (Tr. 

29), and my bench decision in this regard is herein reaffirmed.-

With regard to section 104(a) Citation Nos. 3273934, 

3273936, 3273938, 3273887, and 3273895, the parties agreed to 

settle these violations. The respondent agreed to pay the full 

amount of the proposed civil penalty assessment of $74, for 

Citation No. 3273895. With respect to the remaining citations, 

the parties proposed to settle these citations by reducing the 

proposed civil penalty assessment of $85 to $75 for Citation 

No. 3273938: $112 to $100 for Citation No. 3273887; $112 to $100 

for Citation No. 3273934; and $136 to $68 for Citation 

No. 3273936. 

In support of the proposed settlements, Inspector 

Kinterknecht testified as to the facts and circumstances surrounding the issuance of the violations, and he confirmed that 

all of the violations were timely abated by the respondent, and 

that they all resulted from moderate negligence on the part of 

the respondent. He also testified as to certain mitigating 

factors in support of the proposed settlement reductions, and 

confirmed that he was in agreement with the proposed settlement 

dispositions for all of these violations (Tr. 7-25). The proposed settlements were approved from the bench, and my decision 

in this regard is herein reaffirmed (Tr. 33). 

ORDER 

On the basis.of the foregoing findings and conclusions, and 

taking into account the civil penalty criteria found in section 

llO(i) of the Act, I conclude and find that the approved settlement dispositions for the violations in question are reasonable 

and in the public interest. The respondent IS ORDERED to pay to 

MSHA the following civil penalty assessments for the violations 

which have settled and affirmed, and payment is to be made within 

thirty (30) days of the date of this decision. 

Citation No. Date 30 C.F.R. Section Assessment 

3273934 03/10/88 56.14001 $100 

3273935 03/10/88 56.12032 $ 20 

3273936 03/10/88 56.14007 $ 68 

3273937 03/10/88 56.14001 $ 20 

3273938 03/10/88 56.14003 $ 75 

3273939 03/10/88 56.12013 $ 20 

3062190 03/17/88 56.12001 $136 

3273887 04/07/88 56.14003 $100 

3273893 04/20/88 56.12019 $ 20 

3273894 04/21/88 109)a) Act) $ 20 

1524 
3273895 

3273896 

3273897 

3273898 

3273899 

04/20/88 

04/26/88 

04/26/88 

04/26/88 

04/26/88 

56.12008. 

56.12032 

56.9002 

56.15002 

56.5003 

$ 74 

$ 60 

$ 85 

$ 20 

$ 98 

Citation Nos. 3062191 and 3062192, ARE VACATED. 

Distribution: 

,f/0-t,, 

G~~/A. ~K~utras 

,,; Ir;{~ Administrative Law Judge 

Brian L. Pudenz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Russell E. Mackert, Esq., Mackert & Garrett, 2024 Bissonnet, 

Suite E, Houston, TX 77005 (Certified Mail) 

/fb 

1525 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 171989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HELEN MINING COMPANY 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket ~o. PENN 88-312 

A.C. No. 36-00926-03753 

: Homer City Mine 

. . 

DECISION 

Appearances: Judith L. Horowitz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner~ 

Ronald B. Johnson, Esq., Volk, Franovitch, 

Anetakis, Recht Robinson & Hellersted, Wheeling, 

West Virginia, for Respondent. 

Sef ore: Judge Maurer 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801, et seq, (the Act). 

Pursuant to notice, a hearing was commenced in Pittsburgh, 

Pennsylvania on June 27, 1989. At that hearing, prior to the 

taking of any testimony, the parties proposed a settlement 

agreement. The petitioner proposed reducing the specially 

assessed penalty for Order ?>Jo. 2888642 from $600 to $300 based on 

reducing the negligence factor from "high" to "moderate" and 

therefore modifying the section 104(d)(2) order to a citation 

issued under section 104Ca> of the Act. I approved that motion 

on the record at the hearing. 

t have considered this matter in that light and under the 

criteria for civil penalties contained in section llOCi) of the 

Act and I conclude that the proffered settlement is appropriate 

under the circwnstances. 

'Pursuant to the Rules of Practice before this Commission, 

this written decision confirms the bench decision I rendered at 

the hearing, approving the settlement. 

1526 
Since the respondent already paid the $600 civil penalty 

originally assessed by mistake, and only $300 is actually owed, 

respondent should be given a $300 credit by MSHA, and upon such 

credit, this proceeding IS DISMISSED. 

Distribution: 

/J Ji l1l .' 

Admintjt~ative 

Roy 

1Zl~./-f'' J • ';Majlr er 'V 

Law 

~ 

Judge 

Judith L. Horowitz, Esq., Office of the Solicitor, U.S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Ronald B. Johnson, Esq., Volk, Franovitch, Anetakis, Recht, 

Robertson & Hellersted, 3000 Boury Center, Wheeling, WV 26003 

(Certified Mail) 

/ml 

1527 
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 2 1989 

ARNOLD R. SHARP, 

complainant 

DISCRIMINATION PROCEEDING 

v. : Docket No. KENT 89-70-D 

MSHA Case No. PIKE CD 89-02 

BIG ELK CREEK COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Arnold Sharp, Bulan, Kentucky, pro se, for the 

Complainant; 

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, 

Louisville, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a pro se discrimination complaint 

filed by Mr. Sharp with the Commission on January 25, 1989, 

against the respondent pursuant to section 105(c) of the Federal 

Mine Safety and Health Act of 1977. Mr. Sharp initially filed 

his complaint with the Secretary of Labor, Mine Safety and Health 

Administration (MSHA), at its Hazard, Kentucky Field Office, on 

November 3, 1988. In a statement executed by Mr. Sharp on that 

day on an MSHA complaint form, he made the following complaint: 

M. c. Couch, Jim Neece (sic), and Big Elk Coal co., 

Inc., are harassing me because I have missed work to 

stay home to take care of my sick wife. She is confined to bed rest and under a doctor's care. I have 

notified management and taken them a statement from the 

doctor. They still call my residence and harass me and 

my family, saying that this is no excuse for me to miss 

work. I want the harassment to stop. 

MSHA conducted an investigation of Mr. Sharp's complaint, 

and by letter dated January 12, 1989, advised him that on the 

basis of the information gathered during the course of its 

investigation, a violation of section 105(c) of the Act had not 

1528 
occurred. Mr. Sharp pursued his complaint further with the 

Commission, and filed it on January 25, 1989, stating as follows: 

"I disagree with MSHA determination and I'm asking for all 

expenses and damage (sic) in case number PIKE CD-89-02." 

The respondent filed an answer to the complaint denying that 

it has harassed Mr. Sharp for any reason, including his staying 

home to take care of his sick wife. Respondent asserted that it 

took reasonable action in handling Mr. Sharp's absences from 

work, including the absences attributed to his wife's illness. 

A hearing was held in Pikeville, Kentucky, on May·16, 1989, 

and the parties appeared and participated fully therein. The 

parties filed posthearing briefs, and I have considered their 

respective arguments in the course of my adjudication of this 

matter. I have also considered all oral arguments and representations made by the parties on the record during the course of 

the hearing. 

Issues 

The critical issue presented in this case is whether or not 

the respondent's alleged harassment of Mr. Sharp in connection 

with his absences from work was motivated in whole or in part by 

any protected safety activities on the part of Mr. Sharp. I take 

note of the fact that in his complaint filed with MSHA, as well 

as the Commission, Mr. Sharp does not allege that the alleged 

harassment by the respondent was in any way "safety related." 

His complaint simply states that the alleged harassment resulted 

from Mr. Sharp's missing work to stay home with his sick wife. 

However, during the course of the hearing, Mr. Sharp alleged, for 

the first time, that the respondent harassed him for missing work 

because it sought to punish his wife for preparing a brief on his 

behalf in connection with an earlier discrimination proceeding 

which he initiated against the respondent, and that the respondent harassed him for missing work in order to retaliate against 

him for filing several prior discrimination complaints against 

the respondent. These and other issues raised by Mr. Sharp 

during the course of the hearing are identified and discussed in 

the course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301 et seq. 

2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1), (2) and 

( 3) • 

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

1529 
Complainant's Testimony and Evidence 

Complainant Arnold Sharp testified that he took his wife to 

the hospital emergency room on October 28, 1988, when she became 

ill, and also took her back on October 30, when her condition 

worsened. He took her to the family doctor on October 31, who 

prescribed bed rest, gave her medication, and advised her that 

she needed a back operation because of a ruptured disk and 

pinched leg nerve condition. He stated that he tried to hire 

people to take care of his wife while she was restricted to bed 

so that he could work, but that he could not find anyone to stay 

with her (Tr. 16). 

Mr. Sharp stated that he telephoned the respondent on 

November 1, 1988, and spoke to Mr. Jim Meese at his office in 

Lexington, and advised him that he needed to be off work "a few 

days" to stay with his wife, and that Mr. Meese told him that he 

could be off work as long as he had a doctor's statement attesting to his wife's condition. Mr. Sharp stated that he obtained a 

doctor's statement and took it to the mine office at Isom, 

Kentucky, and gave it to Mine Superintendent M. c. Couch's secretary, Gloria. When asked to produce a copy of the statement, 

Mr. Sharp stated that had lost it (Tr. 17-19). 

Mr. Sharp stated that Mr. M. c. couch telephoned him at home 

on November 1, 2, and 3, 1988, and advised him that "my place was 

at work, not home with my wife." Mr. Sharp stated that Mr. Couch 

also stated to him that "Doctor's statements don't mean shit to 

him. He could care less if my wife lived or died" (Tr. 20) ., Mr. Sharp confirmed that after taking a doctor's statement to the 

mine office on November 1, he took off work, and Mr. Couch kept 

calling him, and that his wife would listen in on the calls 

through a cordless telephone in her bedroom (Tr. 21). 

Mr. Sharp stated that as a result of Mr. Couch's telephone 

calls, he filed a complaint with MSHA on November 3, 1988, and 

also swore out a warrant against him for harassment because the 

telephone calls were upsetting his wife. Mr. Sharp explained the 

status of his court complaint against Mr. Couch and he stated 

that the state district court judge informed him that the matter 

belonged in the criminal circuit court and that "its turned over 

to my attorney right now, but we ain't never filed it in court 

yet" (Tr. 23). Mr. Sharp confirmed that the district court 

dismissed his case, but that he intends to pursue it in the 

circuit court (Tr. 25). 

Mr. Sharp stated that after leaving court on November 16, 

1988, Mr. Couch called him and changed his working hours from 

6:00 p.m. to 4:00 a.m. to 5:00 p.m. to 3:00 a.m., and reassigned 

him (Tr. 24). Mr. Sharp stated that Mr. Couch changed his working hours "to keep me from helping my wife with the kids of an 

evening, getting them from school. So I couldn't help her none 

1530 
of an evening" (Tr. 26). Mr. Sharp confirmed that he worked 

these new hours until he was fired on February 28, 1989 (Tr. 27). 

Respondent's counsel raised an objection to Mr. Sharp's 

testimony concerning the steam jenny on the ground that he filed 

a subsequent MSHA complaint on February 8, 1989, PIKE CD 89-07, 

claiming that his assignment to the steam jenny was in retaliation for filing the November 3, 1988 complaint which is the 

subject of the instant case (Exhibit R-6). Counsel stated that 

MSHA dismissed his complaint, and Mr. Sharp stated that he did 

not appeal the dismissal of his complaint (Tr. 28-30; 35). 

Mr. Sharp confirmed that he did not work for 2 weeks, from 

November 1, 1988, through November 14, 1988, and stayed home with 

his wife, and that he returned to work on November 15, 1988 (Tr. 

32). He contended that when he returned to work, his new foreman 

Mack Cornett informed him that his job was to "steam jenny," and 

that he performed these duties until he was fired (Tr. 33). He 

claimed that he was taken off his job as a truck driver, and was 

assigned as a laborer in order to harass him "because I was off 

with my wife, because she took sick" and "because I filed that 

complaint on the 3rd of the month" (Tr. 34). 

When asked to produce any evidence of his claim of harassment while he was off work for the 2-week period and home with 

wife, Mr. Sharp referred to certain notes which he kept concerning his work duties after he returned to work, and he stated that 

the harassment began after he returned to work on November 15, 

1988 (Tr. 39-40). When asked whether he viewed these job assignments after he returned to work as harassment, Mr. Sharp replied 

"No," but again referred to the matter of being required to 

"steam jenny" in ~reezing weather (Tr. 40-41). 

The notes produced by Mr. Sharp were daily notes made during 

November and December, 1988, and January 1989, and one noted item 

dated November 28, 1988, concerned an unexcused absence given to 

him that day when Mr. Sharp took his wife to a doctor for a 

checkup (Tr. 41). Mr. Sharp explained that his job foreman 

Harlan Couch, (not related to M. c. Couch), gave him an unexcused 

absence after he called in to advise that his wife was sick, and 

that he did so in order to harass him because his wife wrote up 

the brief in one of his earlier discrimination cases, and in 

spite of the fact that he produced a doctor's excuse for that 

absence. Mr. Sharp also stated that Harlan Couch told him "Don't 

lay out no more or you will be fired" (Tr. 42-45; 49). 

Mr. Sharp produced a memorandum dated October 27, 1988, 

addressed to all mine employees from M. c. Couch, advising them 

that they must advise the off ice when they know they are going to 

be late or off work, and must produce a written doctor's excuse 

when going to a doctor. Mr. Sharp identified this memorandum as 

the respondent's work absence policy, and he asserted that prior 

1531 
to this, respondent had no rules regarding work absences, and 

that employees could take off without calling in or producing a 

doctor's excuse (Tr. 50). 

Mr. Sharp stated that mine employee J. R. Deaton missed 33· 

work days in the past 5 months and was not required to produce a 

doctor's excuse. Mr. Sharp stated that he did not know the 

reason for Mr. Deaton's absences, and stated that "he just took 

off any time he wanted to" (Tr. 51). He also stated that 

employee Jack Johnson missed 2 weeks of work, but did not know 

why (Tr. 52). Mr. Sharp further identified employee Rick Stacy 

as an individual who told him that he missed 3 days of work and 

was charged with unexcused absences for those days and was told 

that he would be laid off for 3 days after his third unexcused 

absence (Tr. 53). 

Mr. Sharp confirmed that the respondent fired him after he 

missed work with strep throat, and that he has a pending complaint with respect to the discharge (Tr. 55). 

Mr. Sharp referred to a November 8, 1988, letter mailed to 

him by Mr. Jim Meese, and he claimed that Mr. Meese advised him 

that he would give him a leave of absence to stay home with his 

wife (Tr. 56). Mr. Sharp also produced a copy of a letter which 

he stated was drafted by his attorney, and then rewritten by 

Mr. Sharp, concerning his need to have time off work (exhibit 

C-3). Mr. Sharp stated that a copy of this letter was sent to 

Mr. Meese (Tr. 57-60). 

Mr. Sharp stated that he requested Mr. Meese to give him 

until November 14, 1988, to advise him further as to his need for 

a leave of absence, and after taking his wife to the doctor again 

on that day, he went back to work the next day and did nothing 

about Mr. Meese's suggestion that he take a leave of absence 

"because I didn't need it" (Tr. 62). Mr. Sharp stated that he 

did not in fact take a leave of absence and did not inform 

Mr. Meese that he did not need it because "I went back to work. 

There wasn't no use to tell him that" (Tr. 62). 

Mr. Sharp produced copies of his payroll records, and he 

contended that they establish that pursuant to the respondent's 

work "show up" pay policy, he was required to work 2 hours before 

being sent home for lack of work, while other employees were 

allowed to go home and receive 2 hours pay without being required 

to work. Mr. Sharp cited November 16, 19, and 23, 1988, as days 

he was required to work before being sent home pursuant to this 

policy (Tr. 65-68). 

On cross-examination, Mr. Sharp stated that he was not aware 

that as of the end of October 1988, he had missed 56 days of 

work, but was aware that "I missed with a broke foot," and he 

denied that anyone had ever discussed his absenteeism with him 

1532 
(Tr. 70). Mr. Sharp could not recall speaking with Mr. Meese on 

October 24, and 26, 1988, about being off work on October 28, 

1988, to watch his daughter perform as a cheerleader (Tr. 72). 

He confirmed missing 2 weeks of work, beginning on October 31, 

1988, to be with his wife when she was sick because he had no one 

to take care of her (Tr. 72). 

Mr. Sharp confirmed that when he was off work on October 31 

and November 1, 1988, he advised Mr. Meese that he would go to 

work if he could find someone to stay with his wife, but after 

trying, he could find no one to stay with her (Tr. 72-73). 

Mr. Sharp denied that he told Mr. M. c. Couch's secretary 

that he was going "to shut the company down" when he took her a 

doctor's statement on November 1, 1988, but admitted telling her 

that he was going to "indict" Mr. Couch for making false statements against him (Tr. 73). Mr. Sharp confirmed that he swore 

out a warrant against Mr. Couch for upsetting his wife with 

telephone calls threatening to fire him (Tr. 75). Mr. Sharp 

confirmed that his complaint against Mr. Couch was dismissed and 

voided by the district court judge, and although the court's 

order advised him to file his action in the circuit court, 

Mr. Sharp confirmed that he has not done so (Tr. 77). 

Mr. Sharp confirmed that when he returned to work his pay 

rate remained the same (Tr. 77). He confirmed that his wife has 

not had an operation, and that Mr. Harlan Couch informed him at 

the end of November, 1988 that if he missed any further work 

because of his wife's condition he would be fired (Tr. 80). 

Mr. Sharp confirmed that Mr. M. c. Couch spoke with him on 

November 1, 2, and 3, 1988, about his absences, and that on each 

occasion told him that he could "care less about my wife, if she 

lived or died, that wasn't his problems, that was mine, and he 

could care less. My place was at work, not home with her, taking 

care of her" (Tr. 84). 

Mr. Sharp stated that he made notes concerning Mr. Couch's 

comments about his wife, and after producing them, he admitted 

that he prepared them "a couple of weeks ago" from his original 

notes which he did not have with him (Tr. 85). He explained that 

his original notes which were made the day that Mr. Couch called 

him "got folded up in a drawer and wadded up" and that is why he 

copied them down (Tr. 87). 

Mr. Sharp confirmed that he spoke to M. c. Couch on 

October 28, 1988, and told him that he needed the day off because 

his wife had to be taken to the emergency room. Mr. Sharp stated 

that Mr. Couch told him to either come to work or be fired, and 

Mr. Sharp stated that he made no notes of this conversation (Tr. 

87) . 

1533 
Mr. Sharp produced copies of documents, showing that he was 

off for 2 days on January 9, and 10, 1989, with the flu and that 

he was granted excused leave for January 9, when he produced a 

doctor's excuse, but was charged with an unexcused absence for 

January 10. The "slip" for that day contains a notation that 

Mr. Sharp did not call the office, and he claims that he did. He 

asserted that he called the office on January 9, and informed the 

respondent that he would be off for 2 days, and that Mr. Harlan 

Couch advised him that he was supposed to call on each day (Tr. 

90) • 

Mrs. Imogene Sharp, the complainant's wife, testified that 

on October 28, 1988, her husband took her to the emergency room 

after she became ill, and when they returned home, her husband 

called the mine office at Isom, Kentucky, and asked to speak to 

Mr. M. c. Couch. Mr. Couch returned his call while her husband 

was picking up their children from school, and she advised 

Mr. Couch that her husband had to be off work that evening 

because she had been taken to the emergency room. Mrs. Sharp 

stated that Mr. Couch told her that "you tell Arnold he needs to 

be at work tonight or else he's fired" (Tr. 92). 

Mrs. Sharp stated that when her husband returned home, he 

called Mr. Couch, and that after Mr. Couch told him "you're to be 

at work tonight, or you're fired," her husband reported for work 

that evening. Mrs. Sharp stated that she has a ruptured disk, 

and that her condition worsened, and that she visited her family 

doctor Elmer Ratliff, on October 31, 1988, and he advised her to 

stay in bed, and that she would require further tests and x-rays 

(Tr. 92) • 

Mrs. Sharp stated that her husband called Mr. Couch on 

November 1, 1988, and informed him that he needed to be off work 

that day, but that Mr. Couch would not let him off and "Arnold 

hung the phone up" and called Mr. Jim Meese who informed him that 

he could take the day off if he had a doctor's statement documenting Mrs. Sharp's condition. Mrs. Sharp stated that her 

husband obtained the doctor's statement and took it to the mine 

office that day, but that Mr. Couch continued to call Mr. Sharp, 

and told him that if he didn't come to work he would be fired 

(Tr. 93). Mrs. Sharp stated that she was aggravated because 

Mr. Meese told her husband he could take off work, and Mr. Couch 

threatened to fire him. She confirmed that her husband received 

a letter from Mr. Meese concerning his need to be off work, and 

that Mr. Sharp obtained a·warrant against Mr. Couch because she 

was upset, and to keep him from calling her home about her 

husband. 

Mrs. Sharp confirmed that she typed the brief filed by her 

husband in his first discrimination case, and she believed that 

she was resented because of this and her husband was being 

harassed and punished (Tr. 95). Mrs. Sharp stated that she 

1534 
phoned the mine office on February 15, 1989, and left a message 

for her husband to come home because she was sick, but that he 

never received the message (Tr. 96). She believed that her 

husband was being harassed because Mr. Couch threatened to fire 

him (Tr. 98). 

Mrs. Sharp confirmed that her husband missed 69 days of work 

in 1 year, which "couldn't have been helped," and she believed 

that he was not being treated equally because "he's not the only 

one who missed work" (Tr. 98-99). Mrs. Sharp confirmed that her 

husband told her that Mr. J. R. Deaton missed 33 days of work in 

the past 5 months, and that Mr. Richard Sexton fell off a horse 

and missed 6 months of work with a broken foot (Tr. 100). She 

also confirmed that some of the 69 days of missed work by her 

husband was due to the fact that he broke his foot, and that the 

2-weeks of missed work which is at issue in this case resulted 

from the fact "that he was off with me" (Tr. 101). Mrs. Sharp 

also believed that another employee, Danny Napier, missed work 

when his wife had an operation (Tr. 101). 

In response to further questions, Mrs. Sharp stated that 

when Mr. Couch spoke with her husband over the telephone he made 

the statement that the doctor's excuse "didn't mean shit," and 

that she listened in on the conversation on another occasion when 

Mr. Couch stated that "he didn't care if she lived or di£d. 11 (Tr. 

104). She confirmed that on this occasion, Mr. Sharp and 

Mr. Couch were arguing with each other and that she started to 

cry (Tr. 104). 

Mrs. Sharp stated that Mr. Meese gave her husband permission 

to be off work for 2 weeks, and that Mr. Meese did not state that 

this was contingent on Mr. Sharp bringing in doctor's slips (Tr. 

106). Mrs. Sharp believed that the telephone calls to her home 

were made because the respondent resented her for writing her 

husband's brief in a prior case, and that Mr. Couch's calls were 

made to harass her because they were always made when her husband 

left home to pick up their children (Tr. 107). Mrs. Sharp also 

believed that Mr. Meese gave her husband permission to stay home 

from work to take care of her as long as her husband supplied a 

doctor's excuse attesting to her condition (Tr. 108-109). 

Respondent's Testimony and Evidence 

James Meese testified that he is employed by the respondent 

in its Lexington, Kentucky office, and that he is in charge of 

administration. He stated that he was at the mine site on 

Monday, October 24, 1988, and on his way back to Lexington he 

encountered Mr. Sharp at a gas station in Isom, Kentucky. 

Mr. Sharp spoke to him and requested to be off on Friday, 

October 28, and Mr. Meese told Mr. Sharp to take it up with his 

foreman Harlan Couch. 

1535 
Mr. Meese stated that he subsequently received a telephone 

call from Mr. Sharp on Wednesday, October 26, 1988, and Mr. Sharp 

informed him that Mr. M. c. Couch had denied his request to be 

off on Friday. Mr. Meese stated that it was his understanding 

that Mr. Sharp wanted the day off to attend a school event with· 

his daughter, and at that time, Mr. Sharp had missed approximately 56 days of work. 

Mr. Meese stated that Mr. Sharp called him again on Friday, 

October 28, and again informed him that Mr. Couch would not give 

him the day off. Mr. Sharp further informed Mr. Meese that he 

had a doctor's appointment that evening and did not know whether 

he would be able to report to work. Mr. Meese again informed 

Mr. Sharp to take it up with his supervisor, and Mr. Meese called 

Mr. Couch to advise him of Mr. Sharp's calls. He also suggested 

to Mr. Couch that he call Mr. Sharp to determine whether he was 

going to report to work, and Mr. Meese confirmed that Mr. Sharp 

did in fact report to work {Tr. 114-117). 

Mr. Meese stated that Mr. Sharp called the mine office on 

Monday morning, October 31, 1988, and "reported off" for that 

day, as well as Tuesday, November 1, and that he stated that "he 

needed to attend to his wife at home. He was going to get some 

sort of doctor's slip" {Tr. 118). Mr. Sharp did not report for 

work on October 31. 

Mr. Meese stated that Mr. Couch telephoned Mr. Sharp on 

Tuesday morning, November 1, to check on his leave status. 

Mr. Sharp called Mr. Meese that same day and advised him that he 

was taking his wife to the doctor and was not going to come to 

work {Tr. 118). Mr. Meese stated that Mr. Sharp again telephoned 

him on two more occasions on Tuesday and advised him that his 

wife was confined to bed rest and that he would try to find 

someone to sit with her, but that he was not coming to work. 

Mr. Meese called Mr. Sharp back and advised him to obtain a 

doctor's excuse for his absences {Tr. 119). 

Mr. Meese stated that he and Mr. Couch jointly decided to 

excuse Mr. Sharp's absence of October 31, and Mr. Meese advised 

Mr. Sharp that he could be off that day, as well as November 1st 

{Tr. 120) . 

Mr. Meese stated that on Wednesday, November 2, 1988, 

Mr. Sharp brought a doctor's excuse to the mine office, and the 

excuse indicated that his wife would need bedrest for at least a 

week (Tr. 120). At that time, Mr. Sharp informed the office 

secretary, Gloria Stacy, that he would not be at work that evening and he "reported off." Mr. Meese telephoned Mrs. Sharp's 

doctor on the morning of November 2, to ascertain whether the 

doctor believed that Mrs. Sharp needed around the clock attention. Mr. Meese stated that the doctor said nothing about 

Mrs. Sharp's condition, and with respect to whether she needed 

1536 
daily attention, stated to Mr. Meese "That's something you'll 

have to work out with your employee. I cannot tell you one way 

or the other, if she needs it or not" (Tr. 122). 

Mr. Meese stated that he was present when Mr. Couch tele- · 

phoned Mr. Sharp on November 2, and advised him to have someone 

stay with his wife so he could come to work. Mr. Couch also 

advised Mr. Sharp that the doctor's excuse was for his wife and 

that he was expected to do his job and to be at work. Mr. ~eese 

stated that he never heard Mr. Couch state that he didn't care 

whether Mrs. Sharp lived or died, and did not hear him use any 

curse words (Tr. 123). 

Mr. Meese stated that after Mr. Couch called Mr. Sharp, 

Mr. Sharp called his office, and they exchanged several calls 

that same day. Mr. Sharp advised him that he was swearing out a 

criminal complaint against Mr. Couch for harassment, and stated 

that he had the right to stay home with his wife. Mr. Meese 

stated that he reminded Mr. Sharp that he had taken time to find 

someone to stay with his wife and needed to pursue this search 

(Tr. 124). 

Mr. Meese confirmed that he was again present when Mr. couch 

telephoned Mr. Sharp on November 3, 1988. He explained that 

Mr. Sharp had called the mine office that morning and advised 

Mrs. Stacy that he had filed an MSHA complaint and would not 

report to work. Mr. Sharp advised Mr. Couch that he filed the 

complaint because he was being harassed. Mr. Couch and Mr. Meese 

advised Mr. Sharp that "we have a rock truck sitting, we have a 

job open, we feel that you have had plenty of time to find someone to sit with your wife, and we just reminded him of those 

facts" (Tr. 126). · 

Mr. Meese stated that during Mr. Sharp's initial absences 

from October 31 to November 3, 1988, his truck was parked, but he 

was not replaced because management did not know exactly when he 

would be returning to work (Tr. 127). Mr. Meese confirmed that 

he wrote Mr. Sharp a letter on November 8, 1988, after Mr. Sharp 

called the mine office on November 7, and advised that he would 

have to be off another week because he had taken his wife to the 

doctor again, and she would be confined to bed for a week. 

Mr. Meese stated that he had spoken to Mr. Sharp about 

taking a leave of absence, and asked Mr. Sharp to provide him 

with a firm date for his return to work. After Mr. Sharp failed 

to respond, Mr. Meese decided to send him the letter concerning a 

leave of absence (Tr. 128, exhibit R-3). 

Mr. Meese confirmed that he received a letter dated 

November 10, 1988, from Mr. Sharp on November 14, and on 

November 15, Mr. Sharp called him at his office and informed him 

that he would be returning to work that evening, but that his 

1537 
wife would need to return to the doctor on November 28, that she 

may need an operation, and that he may have a need to be off in 

the future, but was unclear and did not know for certain (Tr. 

129, exhibit R-4). 

Mr. Meese stated that he wrote Mr. Sharp a letter on 

November 15, 1988, and informed him that his absences disrupted 

the scheduling of equipment, that he failed to give management a 

timely response with respect to his absences, and that he was 

being reassigned to another position "until he could get this 

situation worked out" (exhibit R-5, Tr. 130). 

Mr. Meese stated that no action has been taken against 

Mr. Sharp because of any safety complaints on his part, or 

because of his filing of discrimination complaints against the 

company (Tr. 131). 

Mr. Meese stated that he was aware of one employee who was 

off work for 2 days when his wife gave birth, but he could not 

recall the employee's name. Mr. Meese confirmed that he knew 

J. R. Deaton, as a mine employee, but in the absence of his 

attendance records, he had no knowledge as to whether he had any 

absences from work. Mr. Meese had no independent recollection of 

any absences by employees Jack Johnson and Richard Sexton, but 

confirmed that he would be aware of any leave problems if they 

were off for any extended periods of time (Tr. 132-133). 

Mr. Meese stated that employees with excessive absenteeism 

are notified of their absences by certified mail, as was 

Mr. Sharp, and that similar letters have been sent to other 

employees. Mr. Meese stated that his November 15, letter to 

Mr. Sharp was part of his effort to deal with his work attendance 

(Tr. 134). 

Mr. Meese explained the respondent's "two hour show up pay" 

procedure, but stated that he was not clear as to the exact 

policy, and was not aware of the particular circumstances concerning Mr. Sharp and this policy. Mr. Meese stated that as a 

general rule, an employee who reports for work when major machinery is down and there is no work for him to do is sent home with 

2 hours of pay. The question of how each employee is treated 

with respect to this policy depends on the nature of his job and 

is discretionary with the employee's foreman (Tr. 135-136). 

Mr. Meese confirmed that when Mr. Sharp came to work on 

November 15, he was assigned to a laborer's position and operated 

a steam jenny from time to time (Tr. 137). He denied that he 

took any action against Mr. Sharp because his wife wrote a brief 

in connection with his prior discrimination complaint. He also 

denied ever telling Mr. Sharp, or instructing anyone else to tell 

him, that he was on a leave of absence for an indefinite period 

of time. He also denied having any conversations with Mrs. Sharp 

1538 
about Mr. Sharp's leave, except for one telephone 

he left a message for Mr. Sharp to call him back. 

saying anything to Mrs. Sharp indicating that Mr. 

have any time off (Tr. 138). 

call in which 

He denied 

Sharp could 

During his cross-examination of Mr. Meese, Mr. Sharp stated 

that mine employee Richard Sexton missed 6 months of work with a 

broken foot and crushed leg which he sustained when he got drunk 

and fell off a horse (Tr. 141). Mr. Sharp also indicated that 

mine employee J. R. Deaton missed 33 days of work in the last 

5 months, and that Jack Johnson missed 2-1/2 weeks in February, 

1989, because he was sick (Tr. 143). 

When asked why he did not produce these two individuals for 

testimony in this case, Mr. Sharp replied that "both of them is 

mixed up in Labor cases, and they say they don't want to get them 

mixed up in that." Mr. Sharp conceded that he never attempted to 

subpoena these individuals (Tr. 144). 

Mr. Sharp also questioned Mr. Meese about employees Bony 

Banks and Ricky Stacy, missing work to be with their wives in an 

emergency, and Mr. Meese stated that he had no knowledge of these 

matters (Tr. 145, 150). He also denied any personal knowledge of 

the circumstances concerning Mr. Sexton, Mr. Deaton, and 

Mr. Johnson without reviewing their employment records (Tr. 152). 

Mr. Meese denied that mine management required Mr. Sharp to 

steam clean coal equipment knowing he would become ill in order 

to punish him (Tr. 148). He also denied ever telling Mr. Sharp 

that he would steam clean equipment as long as he worked for the 

respondent, and that he would continue to harass him (Tr. 153). 

In response to further questions, Mr. Meese stated that the 

respondent's leave policy was reduced to writing in letter form, 

and that it was a restatement of prior unwritten policy which 

required employees to call in and bring in doctor's excuses 

(Exhibit C-2; Tr. 154). He confirmed that under this policy an 

employee would state the time period he will need to be excused 

from work so that the respondent can work out a schedule to cover 

his work and position, and that any leave of absence granted by 

the respondent would be without pay. He also confirmed that the 

respondent was willing to work this out with Mr. Sharp (Tr. 

154-155). 

Mr. Meese stated that Mr. Sharp missed 41 days of work 

during January and February, 1988, when he broke his foot in a 

home accident, and that he had scattered absences during the 

remainder of the year, for a total of 69 absences for 1988 (Tr. 

160). Mr. Meese stated that absences resulting from job related 

injuries for which an employee receives workmen's compensation 

are excused absences and are treated differently from non-work 

1539 
injury related absences under the respondent's leave policy (Tr. 

163). 

Mr. Meese stated that the respondent has no written formal 

leave discipline policy, but that employees do receive warnings· 

and are notified of their absentee record by certified mail. 

They are also informed when they need to discuss their leave 

record with their supervisors or when there is a need for 

improvement in their work attendance (Tr. 163-164). 

Mr. Meese summarized the respondent's position in this 

matter as follows (Tr. 159-160: 164-165): 

Q. So what you're telling me, Mr. Meese, is that, 

beginning with the onset of Mr. Sharp's illness with 

his wife, that your position for the company in this 

case is that, absent any specific information from him 

as to specifically when he wanted to be off, how long 

he wanted to be off, and all that business, you took 

the position that the company could no longer afford to 

be without him as a rock truck driver, and that's why 

they gave that job to someone else or let the truck set 

or whatever, and then put him on as a laborer? 

A. That's correct. 

Q. I guess what this boils down to is Mr. Sharp wants 

to be home to take care of his wife, who is ill and 

needs and operation, and the company says, "I'm sorry, 

we can't accommodate you because we need you at work." 

Is that what it boils down to? 

A. Basically, yes, sir. 

Q. And when you tell him that we can't accommodate 

you, Mr. Sharp, I'm sorry, you have to get somebody to 

look after your wife, Mr. Sharp comes back and says the 

reason they're doing that to me, Judge, is they're 

trying to take it out on me, because my wife wrote the 

brief in the first case that I prevailed against them? 

Is that what you thing this case is all about, or am I 

being oversimplistic about it? 

A. No, I believe Mr. Sharp has it in his mind that his 

family comes first, and he's related that to me several 

times over the telephone, and I view work as more, as 

equal, or more important. You have to go to work. You 

have to provide for your family. I've related that to 

him several times, and whenever he cannot get a favor 

able decision in one area, he wilr keep going to everywhere he can to try to get it. And I feel in this 

instance that he felt that because we weren't giving 

1540 
him a favorable response to his request, he issued a 

warrant for harassment, and he filed an MSHA complaint. 

At that point, we had no--didn't quite know what to 

know. 

Mr. Meese denied Mr. Sharp's assertions that he resents 

Mr. Sharp's family, or that he "set up" and fired Mr. Sharp and 

canceled his insurance coverage in order to punish his wife (Tr. 

166). 

Marcus "M.C." Couch, Jr., respondent's surface mine supervisor, stated that Mr. Sharp telephoned him during the latter 

part of October, 1988, and informed him that he would not be at 

work on Friday, October 28, 1988, because of some athletic or 

cheerleading event concerning his daughter. Mr. Couch stated 

that Mr. Sharp said nothing about his wife during this conversation, and that after he informed Mr. Sharp that he was needed on 

the job, he did report for work that day (Tr. 168). 

Mr. couch stated that during the week of October 31, 1988, 

he returned several calls that Mr. Sharp had made to him at the 

mine office. During the first call, Mr. Couch stated that he 

asked Mr. Sharp to try and find someone to stay with his wife and 

that he was needed at work. Mr. Sharp advised him that he would 

try to find someone to stay with his wife (Tr. 170). 

Mr. Couch stated that he had a second short telephone conversation with Mr. Sharp on Tuesday, November 1, 1988, and that 

he explained to Mr. Sharp that he was needed at work (Tr. 170). 

Mr. Couch stated that he had a third telephone conversation 

with Mr. Sharp after Mr. Sharp swore out a warrant against him 

accusing him of harassing his wife, and as a result of this 

action by Mr. Sharp, Mr. Couch stated that he had no further 

telephone contact with Mr. Sharp, and that he "stayed away from 

him from there out" (Tr. 170). 

Mr. Couch vehemently denied that he ever told Mr. Sharp that 

he "didn't care weather his wife lived or died." He also denied 

ever telling Mr. Sharp that he "didn't give a shit about any 

doctor's excuses that he brought in" (Tr. 171). He also denied 

any telephone conversations with Mrs. Sharp concerning 

Mr. Sharp's coming to work during the week of October 31, 1988 

(Tr. 171). Mr. Couch further denied that he ever threatened to 

fire Mr. Sharp for not coming to work (Tr. 172). 

Mr. Couch explained the circumstances under which 

Mr. Sharp's working hours were changed when he returned to work 

on November 15, 1988. He stated that all laborers are required 

to report to work at 5:00 p.m., an hour prior to the equipment 

operators who report at 6:00 p.m., in order to fuel and prepare 

the equipment for the second shift operation. He confirmed that 

1541 
the laborers work until 3:00 a.m., and that the equipment operators work until 4:00 a.m. (Tr. 172). 

With regard to Mr. Sharp's operating the steam jenny or 

steam cleaner in the winter time, Mr. Couch stated that all 90 

employees under his supervision have operated the steam jenny at 

one time or another, regardless of the weather. He denied that 

he has ever taken any action against Mr. Sharp because of any 

complaints that he may have filed with MSHA, complaints about 

safety, or because of any discrimination complaints which he has 

filed. He also denied taking any action against Mr. Sharp 

because his wife was involved in the typing of his brief in an 

earlier discrimination case (Tr. 173-174). 

On cross-examination, Mr. Couch confirmed that the respondent purchased a new steam jenny in April, 1989, and now has 

three of these machines (Tr. 174). He also confirmed that he 

informed Mr. Sharp that he would perform the duties of a laborer, 

including steam cleaning, fueling equipment, and cleaning up, and 

that he changed his working hours after he was relieved of his 

rock truck duties and assigned as a laborer (Tr. 177-178). 

Mr. Couch stated that he recently notified employee J. R. 

Deaton that he was missing too much work and that he would 

receive a written notice to this effect (Tr. 179). He confirmed 

that employee Jack Johnson was hospitalized, and that employee 

Bony Banks has had a written notice served on him for several 

weeks for missing too much work (Tr. 180). 

Mr. Couch confirmed that employee Mike Campbell was transferred from the reclamation day shift to the production second 

shift to drive the truck that Mr. Sharp was previously assigned 

to (Tr. 185-186). With regard to Mr. Sharp's "show up" time, 

Mr. Couch stated that as a laborer, Mr. Sharp would be required 

to work cleaning off a piece of machinery, and if the equipment 

did not operate, he could be sent home. He could also be 

assigned to cleaning up coal on his night shift, and Mr. Couch 

did not recall ever requiring Mr. Sharp to work for 2 hours, and 

then sending him home (Tr. 192). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

1542 
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no pro- .· 

tected activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut the 

prima facie case in this manner it may nevertheless affirmatively 

defend by proving that (1) it was also motivated by the miner's 

unprotected activities alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of 

persuasion does not shift from the complainant. Robinette, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

Cir. (April 20, 1984) (specifically-approving the Commission's 

Fasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2.d 86 (D.C. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965) : 

It would indeed be the unusual case in which the 

link between the discharge and the [protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

1543 
In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June 

1982), the Commission stated as follows: 

As we emphasized in Pasula, and recently 

re-emphasized in Chacon, the operator must prove that 

it would have disciplined the miner anyway for the 

unprotected activity alone. Ordinarily, an operator 

can attempt to demonstrate this by showing, for 

example, past discipline consistent with that meted to 

the alleged discriminatee, the miner's unsatisfactory 

past work record, prior warnings to the miner, or 

personnel rules or practices forbidding the conduct in 

question. Our function is not to pass on the wisdom or 

fairness of such asserted business justifications, but 

rather only to determine whether they are credible and, 

if so, whether they would have motivated the particular 

operator as claimed. 

The evidence in this case establishes that on or about 

Monday, October 24, 1988, at a chance meeting with Mr. Meese, 

Mr. Sharp made a verbal request of Mr. Meese to be off work on 

Friday evening, October 28, 1988. Mr. Meese informed Mr. Sharp 

to contact his supervisor to discuss the matter, and that he 

(Meese) could not give him the day off. Subsequently, on 

Wednesday, October 26, 1988, Mr. Sharp telephoned Mr. Meese at 

his office in Lexington and informed him that Mr. Couch would not 

give him the day off, and Mr. Sharp again requested Mr. Meese to 

allow him to be off on Friday evening. Mr. Meese informed 

Mr. Sharp that it was not his decision to make, and Mr. Meese 

believed that Mr. Sharp wanted the evening off to attend a school 

event with his daughter. Mr. Sharp telephoned Mr. Meese again on 

Friday, October 28·, 1988, and again informed Mr. Meese that 

Mr. Couch would not give him the evening off. Mr. Sharp also 

informed Mr. Meese at this time that he had a doctor's appointment for Friday evening, and did not know whether he would be 

able to report for work. Mr. Meese again informed Mr. Sharp to 

take the matter up with his foreman, and Mr. Sharp did in fact 

show up for work that evening. 

Mr. Meese•s credible testimony reflects that Mr. Sharp 

telephoned the mine office on Monday morning, October 31, 1988, 

and "reported off" for that day, as well as Tuesday, November 1, 

1988, in order to stay home with his wife who was ill. Mr. Sharp 

confirmed that he telephoned Mr. Meese on November 1, 1988, and 

advised him of his need to be off work for "a few days" to stay 

home with his wife, and that Mr. Meese informed him that he could 

be off as long as he had a doctor's statement attesting to his 

wife condition. Mine policy, as reflected by a memorandum issued 

on October 27, 1988, by mine superintendent M. c. Couch (exhibit 

C-2), required all employees to inform the mine office when they 

know they will be off work, and to produce a written excuse when 

they miss work to go to a doctor. Mr. Sharp produced a statement 

1544 
from a doctor dated October 31, 1988, which attests to the fact 

that he brought his wife to the doctor that day. The doctor also 

indicated in his statement that Mr. Sharp's wife "needs to be on 

bed rest for one week." Mr. Sharp could not produce a doctor's 

statement for his absence of November 1, 1988, claiming that he· 

gave the original excuse to Mr. M. C. Couch's secretary, and that 

he had lost the copy of the excuse. In any event, Mr. Meese 

confirmed that he and Mr. M. c. Couch jointly decided to excuse 

Mr. Sharp's absence of October 31, 1988, and that Mr. Meese 

excused his absence of November 1, 1988. 

The evidence further establishes that on Wednesday, 

November 2, 1988, Mr. Sharp went to the mine with a copy of the 

doctor's excuse of October 31, 1988, for his wife, which indicated that she was in need of bed rest for at least a week. At 

that time, Mr. Sharp advised Mr. M. c. Couch's secretary that he 

would not be at work that evening, and Mr. Sharp "reported off" 

and did not work. Mr. Meese confirmed that he telephoned 

Mrs. Sharp's doctor that same morning to inquire about her condition and to determine whether she required daily attention. 

Mr. Meese testified that the doctor advised him that he could not 

state whether or not Mrs. Sharp required daily attention, and 

that this was a matter for Mr. Meese "to work out with your 

employee." 

A copy of Mr. Sharp's attendance record (exhibit C-5), 

reflects that he was absent from work from November 3, 1988, 

through November 13, 1988, and Mr. Sharp confirmed that he did 

not report for work for 2 weeks, from November 1, through 

November 14, 1988, when he was home with his wife, and that he 

next reported for work on November 15, 1988. Mr. Sharp produced 

a copy of a doctor's statement dated November 7, 1988, which 

reflects that his wife had an appointment with a neurosurgeon for 

"a possible ruptured disk," and that she was confined to bed rest 

until she could see that doctor. He also produced a copy of a 

doctor's statement which states that his wife visited a doctor's 

clinic and that she was brought in by Mr. Sharp. The statement 

is dated in November, but the day of the visit is not clear, and 

it appears to be 11 11/14. 11 

Mr. Meese testified that after he learned that Mr. Sharp had 

called the mine office on November 7, 1988, to advise that he 

would be off work for another week because he had again taken his 

wife to the doctor and that she would be confined to bed for a 

week, he sent Mr. Sharp a letter on November 8, 1988 (exhibit 

C-3(a). In the letter, Mr. Meese informed Mr. Sharp that his 

absences from work on November 3, 5, and 7, 1988, were considered 

by mine management as unexcused. Mr. Meese further informed 

Mr. Sharp in the letter that management had a need for someone to 

perform his rock truck driver's duties, and that if he could not 

return to work within a reasonable time, management would be 

forced to hire a permanent replacement to fill that job, and that 

1545 
Mr. Sharp should consider taking a leave of absence for the time 

that he needed to be off work. Mr. Meese confirmed that he had 

previously spoken to Mr. Sharp about taking a leave of absence 

and requested him to provide a firm date for his return to work. 

However, when Mr. Sharp could not provide him with the requested 

information, Mr. Meese confirmed that he decided to send the 

letter in question. 

Mr. Meese confirmed that he received a response to his 

letter from Mr. Sharp on November 14, 1988 (exhibit R-4). In 

that letter, Mr. Sharp states that after another doctor's 

appointment on an unspecified Monday, he "will know whether or 

not a temporary leave of absence is in order," and that he complied with company policy by calling the mine office to report 

off work on the dates mentioned in Mr. Meese's letter, and that 

he also supplied management with doctor's excuses for the days in 

question. Mr. Sharp alluded to another letter which he claimed 

had been drafted by his attorney, and which he had rewritten and 

mailed to Mr. Meese, explaining his need to be off work. I have 

reviewed that purported letter, and it is an unsigned "rough 

draft" in some unknown individual's handwriting. I find no 

credible evidence that Mr. Sharp sent Mr. Meese any letter other 

than the one dated November 10, 1988, with his signature. This 

is the same letter received by Mr. Meese on November 14, 1988. 

Further, I find no credible support for Mr. Sharp's assertion 

that Mr. Meese in fact granted him a leave of absence (Tr. 56). 

The letter clearly states that Mr. Sharp should consider a leave 

of absence, and Mr. Sharp confirmed that this was the case (Tr. 

57). I also find no credible evidence to support any conclusion 

that Mr. Sharp ever made a decision to request a leave of 

absence, or to otherwise inform Mr. Meese of his desire to do so. 

Mr. Meese's credible testimony reflects that Mr. Sharp 

telephoned Mr. Meese at his office on November 15, 1988, and 

informed him that he would return to work that evening, but that 

his wife would need to return to the doctor again, that she may 

need an operation, and that Mr. Sharp may have a need to be off 

work again at some further uncertain time. Mr. Sharp did in fact 

return to work on November 15, 1988, and he confirmed that he did 

not take any leave of absence, and did nothing about Mr. Meese's 

suggestion that he request a leave of absence. 

Upon Mr. Sharp's return to work on November 15, 1988, he was 

reassigned from his rock truck driver's position to a laborer's 

position at the same rate of pay, and his work hours were changed 

from 6:00 p.m. to 4:00 a.m. to 5:00 p.m. to 3:00 a.m. Mr. Meese 

confirmed that he sent Mr. Sharp a letter on November 15, 1988, 

informing him of his reassignment, and the letter states as 

follows (exhibit R-5): 

1546 
This is to confirm our conversation in which we 

discussed your assignment to a laborer position 

effective immediately. 

This past year you have missed a total of 69 work 

days. Most recently, you have been off due to a 

medical problem in your family. Although we pressed 

you for a firm date of return so that we could put you 

on a leave of absence and plan for our production 

needs, you refused to give us a firm date. Therefore, 

we are compelled to put someone who is more dependable 

in your former position. Your absences over the past 

year have been very disruptive to our ability to 

schedule your truck in an orderly manner, thereby 

contributing to inefficiencies. 

In the next 90 days, we expect to see an improvement in your attendance. If improvement is not forthcoming, we will have no alternative but to take 

disciplinary action. 

Mr. Sharp continued to work for the respondent until he was 

terminated on February 28, 1989. 

Mr. Sharp's Complaint 

The basis of Mr. Sharp's discrimination complaint in this 

case is his assertion that mine superintendent Marcus "M.C. 11 

Couch harassed him by making telephone calls to his home during 

the period November 1-3, 1988. Mr. Sharp confirmed that his wife 

listened in on the calls through a cordless telephone in her 

bedroom, and that she was upset by the calls. Mr. Sharp confirmed that the telephone calls prompted the filing of his complaint with MSHA on November 3, 1988, and also prompted him to 

swear out a criminal warrant against Mr. couch for harassment. 

The record reflects that this complaint was dismissed by a local 

Kentucky state court judge on March 7, 1989. 

Mr. Sharp alleges that Mr. Couch's motive in calling him at 

home was to harass him for having filed a prior discrimination 

complaint against the respondent in which he prevailed, and to 

punish his wife because she drafted some of his briefs which he 

filed in connection with prior discrimination complaints which he 

had filed against the respondent. He also alleges that other 

employees had missed work for illnesses or to stay home with a 

sick wife, but were not accorded the treatment that he received 

from the respondent because he missed work to stay with his wife. 

In the course of the hearing in this case, Mr. Sharp alluded 

to several additional alleged acts of discrimination by the 

respondent which are not the subject of his present complaint. 

He claimed that the respondent discharged him out of retribution 

1547 
for his prior discrimination complaints and to punish him for 

staying home with his wife. Mr. Sharp has filed a complaint 

concerning this discharge, and it is my understanding that it is 

still pending. Under the circumstances, I will make no findings 

or conclusions concerning Mr. Sharp's discharge. · 

With regard to Mr. Sharp's allegations of disparate treatment in connection with his absences from work, he claimed that 

other employees missed work because of illnesses to themselves or 

their spouses, but were not subjected to any discriminatory 

treatment by the respondent. Although I find no connection 

between this allegation and the alleged telephone harassment of 

Mr. Sharp by Mr. Couch, I do note in passing that Mr. Sharp 

failed to call any of the employees in question to testify in 

this case, and he did not produce any credible facts or evidence 

to support such a claim. Further, in view of Mr. Sharp's pending 

discrimination claim resulting from his discharge, and his asser- . 

tion during the course of the hearing that he was terminated 

after missing work with a strep throat (Tr. 55), I believe that 

any further findings and conclusions on this issue is best left 

to the judge who will adjudicate that claim. 

Mr. Sharp claimed that his reassignment as a laborer after 

his return to work on November 15, 1988, and his work assignments 

in connection with that job (steam cleaning equipment), were made 

to punish and harass him for filing the November 3, 1988, complaint which is the subject of this case, and because he missed 

work to stay home with his ill wife (Tr. 34). With regard to 

this complaint, the record reflects that Mr. Sharp filed a complaint with MSHA on February 2, 1989, Complaint Docket No. PIKE 

CD-89-07 (exhibit R-6). MSHA apparently investigated the complaint and found rio violation of section 105(c) of the Act. 

Respondent's counsel confirmed that MSHA dismissed the matter, 

and Mr. Sharp confirmed that he took no further appeal to the 

Commission with respect to MSHA's decision. Under the circumstances, I conclude and find that this complaint is moot, and 

since it is outside the scope of the instant complaint filed by 

Mr. Sharp, I decline to make any findings or conclusions with 

respect to Mr. Sharp's allegations. 

Mr. Sharp also raised an issue concerning the respondent's 

work "show up" policy, and claimed that he was treated differently from other employees because he was required to work on 

November 16, 19, and 23, 1988, before being sent home pursuant to 

this policy. I find that Mr. Sharp's allegations in this regard 

are outside the scope of the complaint and issues which are the 

subject of the instant proceeding, and I declined to make any 

findings or conclusions regarding Mr. Sharp's allegations. My 

findings and conclusions in this case will be limited to 

Mr. Sharp's complaint concerning the alleged harassing telephone 

calls by Mr. couch. 

1548 
With regard to the telephone calls in question, I take 

initial note of the fact that the record in this case clearly 

reflects that the issue concerning Mr. Sharp's absences from work 

is unrelated to any illness on the part of Mr. Sharp. His 

absences from work were the result of his desire to stay home to 

be with his sick wife, and Mr. Sharp obviously made a judgment 

that his first priority was to be with his wife rather than to 

report for work when the respondent expected him to be there. 

Although I sympathize with Mr. Sharp's predicament, particularly 

in light of his wife's illness, I must balance his concern for 

his wife and the legitimate business interest of the respondent 

in attempting to maintain the continuity of its day-to-day mining 

operation. 

The record in this case establishes that some of the calls 

were initiated by Mr. Couch, and some were "call backs" by 

Mr. Couch in response to prior calls initiated by Mr. Sharp. 

There is no evidence that the calls were made during other than 

normal business hours, or that they were made at unusual hours of 

the day or evening. Although Mr. Sharp indicated that some of 

the calls were taken by his wife while he was away from the house 

picking up his children from school, I find no credible evidence 

that Mr. Couch deliberately timed his calls so that he could 

harass Mr. Sharp's wife. Although Mrs. Sharp believed that this 

was the case, and stated that all of the calls made by Mr. Couch 

were at a time when her husband was not at home, Mr. Sharp 

testified that he received the calls made on November 1-3, 1988, 

by Mr. Couch during which they discussed his absences from work. 

With regard to the frequency of the calls prior to the 

filing of the complaint on November 3, 1988, Mr. Couch testified 

that he returned several calls that Mr. Sharp had placed to him 

at the mine office during the week of October 31, 1988, during 

which he discussed with Mr. Sharp his need to be at work and to 

find someone to stay with wife. Mr. Couch confirmed another 

telephone conversation with Mr. Sharp on November 1, 1988, when 

he again discussed the need for Mr. Sharp to come to work. 

Mr. Couch confirmed a subsequent telephone conversation with 

Mr. Sharp after he swore out the warrant against him on 

November 3, 1988, and as a result of the warrant, Mr. Couch 

confirmed that he had no further telephone contact with 

Mr. Sharp. 

With regard to the alleged harassing nature of the calls, 

Mr. Sharp claimed that Mr. couch's alleged threats to fire him 

for not reporting to work, and Mr. Couch's alleged statements 

that "doctor's statements don't mean shit" and that "he could 

care less whether his wife lived or died," were upsetting to his 

wife and were intended to punish his wife for assisting him with 

his prior complaints. The evidence establishes that these statements attributed to Mr. couch were not made directly to 

Mrs. Sharp. She was listening in on another telephone, and she 

1549 
testified that Mr. Couch made the statements, and that she began 

to cry after Mr. Sharp and Mr. Couch began arguing. Mr. Couch 

vehemently denied making the statements, denied that he ever 

spoke to Mrs. Sharp and told her that he would fire Mr. Sharp for 

not coming to work, but he confirmed that he returned some calls 

made by Mrs. Sharp after Mr. Sharp was terminated. Mr. Meese 

testified that he was present when Mr. Couch spoke with Mr. Sharp 

over the telephone from his office concerning his failure to come 

to work, and that he never heard Mr. Couch make the statements in 

question. 

Having viewed Mr. Sharp's demeanor during the course of the 

hearing in this case, it is more than obvious to me that he has a 

most extreme personal dislike for Mr. Couch. Although 

Mr. Couch's demeanor reflects a rather outward calm and 

dispationate nature, given the fact that Mr. Sharp obtained a 

warrant and took him to court for allegedly harassing his wife, 

and has on several occasions caused Mr. Couch to be called to 

answer for his alleged discriminatory actions against Mr. Sharp, 

I would venture a guess that Mr. Couch is not particularly fond 

of Mr. Sharp. However, the issue here is not whether Mr. Couch 

or Mr. Sharp like each other. The issue is whether or not one 

can conclude from the credible evidence in this case that the 

telephone calls made to Mr. Sharp's home by Mr. Couch establish 

harassment, and if so, whether the harassment was motivated by 

Mr. Couch's desire to punish Mr. Sharp or to otherwise discriminate against him for engaging in any safety activity protected by 

the Act. 

Having viewed Mr. Couch and Mr. Meese during the course of 

the hearing, I find them to be credible witnesses. I find it 

very difficult to believe that the telephone calls in question 

were made by Mr. Couch to punish or otherwise harass Mr. Sharp's 

wife for simply preparing some of his briefs in prior discrimination cases. I find no credible evidentiary support for any such 

conclusion. I also find it difficult to believe that Mr. Couch 

did not care whether Mr. Sharp's wife lived or died. Mr. Couch 

simply did not impress me as being that type of an individual. 

Even if Mr. Couch did make the statements attributed to him, 

Mrs. Sharp would not have heard them had she not been listening 

in on the conversation. Further, given Mr. Couch's obvious 

frustrations in attempting to determine when Mr. Sharp would 

return to work, the argumentative and hostile mood which prevailed during the conversation, and Mr. Sharp's provocative 

nature and propensity for.making indiscriminate accusations 

against Mr. Couch, I believe that if the statements attributed to 

Mr. Couch were in fact made, they were made in the anger of the 

moment, and that Mr. Sharp more than likely provoked Mr. Couch, 

and he reacted in kind. Mr. Couch testified that Mr. Sharp had 

cursed him on several occasions during telephone conversations 

(Tr. 170) • 

1550 
After careful review of all of the testimony and evidence in 

this case, I conclude and find that the telephone calls and 

conversations initiated by Mr. Couch, as well as Mr. Sharp, 

during which the subject of Mr. Sharp's absences from work 

because of his wife's illness were discussed, do not constitute· 

harassment by Mr. Couch because of any protected activity on the 

part of Mr. Sharp. Mr. Sharp's absences from work because of his 

wife's illness is not protected activity under the Act. I find 

no credible evidence to support any conclusion that the respondent acted unreasonably in its attempts to determine when 

Mr. Sharp would be able to return to his normal work schedule at 

the mine. 

I conclude and find that the respondent had a legitimate, 

reasonable, and plausible concern for Mr. Sharp's absences, and 

the need to insure that he either return to work, or at least 

give the respondent some assurance as to when he would be able to 

return to his normal scheduled work. Mr. Sharp did neither. As 

a result of his failure to respond, and his sporadic day-to-day 

attendance record, Mr. Sharp placed the respondent in a position 

of not knowing from day-to-day if or when he would show up for 

work, when he would return to work on a regular basis, or whether 

he would request a leave of absence to stay home with his wife. 

I conclude and find that mine management's actions in dealing with Mr. Sharp, including the telephone calls by Mr. Couch, 

were prompted by a legitimate and rational effort to determine if 

and when Mr. Sharp would return to his normal work schedule at 

the mine. Given Mr. Sharp's overall attendance record, and his 

rather erratic and unpredictable practice of reporting on and off 

work during late October, and early November, 1988, when he wife 

was ill, I cannot conclude that the telephone calls made by 

Mr. Couch to Mr. Sharp's home, or the conversations Mr. Sharp had 

with Mr. Meese, were anything more than a reasonable effort by 

mine management to resolve a work attendance problem with one of 

its employees. I further conclude and find that Mr. Sharp has 

failed to present any credible evidence to support his claim that 

management's actions were motivated by its desire to harass or 

punish him for any safety related activities protected by the 

Act. 

ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all of the credible testimony and 

evidence adduced in this case, I conclude and find that Mr. Sharp 

has failed to establish that the respondent has discriminated 

against him or has otherwise harassed him or retaliated against 

him because of the exercise of any protected rights on his part. 

1551 
Accordingly, Mr. Sharp's complaint IS DISMISSED, and his claims 

for relief ARE DENIED. 

d 

· ~~J ~,/ A-#··Kbutras ai::'-vv--6--~ Administrative Law Judge 

Distribution: 

Mr. Arnold Sharp, General Delivery, Bulan, KY 41722 

(Certified Mail) 

Edwin S. Hopson, Esq., Wyatt, Tarrant & Combs, 2600 Citizens 

Plaza, Louisville, KY 40202 (Certified Mail) 

/fb 

1552 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 AUG 2 2 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CYPRUS EMPIRE CORPORATION, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

Docket No. WEST 88-206 

A.C. No. 05-01370-03573 

Eagle No. 5 Mine 

DECISION 

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

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

for Peti tioneri 

Michaels. Beaver, Esq., Holland & Hart, Englewood, 

Colorado, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges respondent with violating 

a safety regulations promulgated under the Federal Mine Safety 

and Health Act, 30 u.s.c. § 801 et seg., (the "Act"). 

After notice to the parties a hearing on the merits was held 

in Steamboat Springs, Colorado on July 26, 1989. 

The parties waived receipt of the transcript and waived the 

filing of post-trial briefs. They also submitted the issues on 

oral argument and requested an expedited decision. 

Summary of the Case 

Citation No. 2504948 charges respondent with violating 

30 C.F.R. § 75.316, which provides as follows: 

§ 75.316 Ventilation system and methane and 

and dust control plan. 

[Statutory Provisions] 

A ventilation system and methane and dust 

control plan and revisions thereof suitable to 

the conditions and the mining system of the coal 

mine and approved by the Secretary shall be 

1553 
adopted by the operator and set out in printed 

form on or before June 28, 1970. The plan shall 

show the type and location of mechanical ventilation equipment installed and operated in the mine, 

such additional or improved equipment as the 

Secretary may require, the quantity and velocity 

of air reaching each working face, and such other 

information as the Secretary may require. Such 

plan shall be revlewed by the operator and the 

Secretary at iE{ast every 6 months. 

Citation No. 2504948 states as follows: 

The ventilation system and methane and 

dust control plan was not being complied with 

in that the setup entry at 16 East - longwall 

did not have enough air movement to turn the 

anemometer to take a reading. A smoke tube 

was used and the smoke just went up to the roof 

and spread in all directions. Visability (sic) 

was restricted because of the diesel equipment 

that was being used in the intake entry. The 

plan requires 200 FPM at Shield #10. 

Stipulation 

At the hearing the parties stipulated as follows: 

1. The Commission and the Administrative Law Judge have 

jurisdiction to hear and determine this matter. 

2. Citation No. 2854948 was properly issued and served on 

respondent. 

3. Respondent's history is shown by the computer printout 

which can be received in evidence (Exhibit P-1). 

4. The penalty as proposed is appropriate and such a 

penalty will not hinder the ability of the operator to continue 

in business. 

5. The parties agree on the authenticity of exhibits submitted by both parties. 

6. The photographs received in evidence in the case are for 

illustrative purposes. 

1554 
Issues 

The principal issues are whether the presence of 10 percent 

of the shields needed to mine coal and one-half of a pan-line 

cause a setup entry to be a •working face• within the meaning of 

30 C.F.R. § 75.316. 

Summary of the Testimony 

ERNEST L. MONTOYA of Craig, Colorado has been a coal mine 

inspector for 11 years. He is experienced in mining, safety and 

ventilation. 

Eagle No. 5 is an underground coal mine 8 miles south of 

Craig, Colorado. Inspector Montoya has inspected this particular 

mine from 1 to 3 years. 

On December 10, 1987, Inspector Montoya arrived at the 

company site and contacted company representatives. He was 

accompanied by Robert Stelter of the safety department when he 

went underground. 

When the inspector arrived in the 16 East Longwall section 

of the mine, he observed that the entry was foggy. He could also 

see a welding flash and an accumulation of welding smoke. These 

conditions caused him to believe that the ventilation was not 

good. At the time there were 6 to 8 miners in the entry. · 

Inspector Montoya drew Exhibit P-2 • The exhibit shows the 

intake entry Cat the left), the "setup entry" Cat the top) and 

the return entry Con the right side of the exhibit). 

After he observed the conditions in the entry the inspector 

used an anemometer to determine the flow of the air. But the 

blades would not turn. By using a smoke tube he then put a puff 

of smoke into the air. He observed the air go into the tailgate 

and spread in all directions. Due to these conditions he concluded that there was insufficient air in the entry. However, 

there were times when there was air movement in this entry. Such 

movement occurred when the diesel equipment went into the entry. 

However, at that time the air velocity was between 30 to 80 CFM. 

CThe witness marked an x on the left side of Exhibit P-2 showing 

where the diesel equipment would enter the area; he further 

marked an xx on the right side of Exhibit P-2 indicating where 

the equipment would exit the area.) 

Inspector Montoya stayed on the site until about 5 or 

6 p.m.; he terminated the citation when the second shift came 

to work. 

1555 
On Exhibit 2 witness Montoya marked the air direction with 

double arrows in red. He also marked the direction of the return 

air. 

There were no curtains directing the air into the setup 

entry. Two curtains kept the air from entering the bleeder 

entry1 the net result was to direct the air into the setup entry. 

Mr. Montoya and two management representatives reviewed the 

company's ventilation plan. The ventilation plan (Exhibit P-3) 

applies to the 16 east section. The ventilation plan provides 

in part that "the minimum quantity reaching the intake end of 

the longwall face shall be 40,000 CFM" (Paragraph 1 of Exhibit 

P-3). Further, paragraph 3 of the ventilation plan provides that 

the minimal velocity of air maintained across the longwall face 

shall be 200 feet/min. at shield No. 10 (on the intake side) and 

100 feet/min. at shield No. 115 (on the return side). 

It was the inspector's view that the setup entry did not 

have 200 feet per minute of air, which is a requirement of the 

ventilation plan. 

The crux of the Secretary's case: the ventilation plan 

refers to the longwall face1 the setup entry cited by the inspector is the same as the longwall face (Exhibit P-6). 

The inspector took 25 to 30 readings in the area but he did 

not record them each time. 

Mr. Cobb, the company's fire boss was present and he also 

took readings. Cobb stated to the inspector that he could not 

observe any readings because there was no air and they discussed 

the lack of air movement. 

In the inspector's opinion, Citation No. 2504948 was an S&S 

violation. 

The hazard from the described condition is that a miner 

will breath air containing carbon monoxide from the diesel equipment and he would also breath welding fumes. These contaminants 

can cause cancer in the long term. 

There were miners working in the setup entry when Mr. Montoya took his readings and there were workers continually moving 

in and out of the entry. 

An anemometer measures cubic feet of air per minute. 

Witness Montoya discussed how the flow of air is calculated. 

Measurements that were taken when the anemometer would turn 

would indicate an average flow of 3200 CFM. 

1556 
It was the inspector's opinion that when the very first 

piece of equipment goes into the setup entry the area becomes 

a longwall face. 

Along the longwall is equipment called the pan-line. It 

contains the electrical wiring, the chain conveyor and related 

equipment. The pan-line when in operation also conveys coal from 

the face and it is located ahead of the shields. The pan-line 

itself was 250 to 300 feet in length (about half of the length 

when the pan-line is in operation). 

The setup entry is the same as the setup room and it 

measures 22 to 25 feet wide. This is wider than a normal entry. 

The setup entry is used to set up equipment but actual mining 

does not take place in the entry. 

At the time this citation was issued active mining was 

taking place in the 17 east intake entry. (It is apparent that 

the active mining was taking place at some place other than 

where this citation was issued.) 

The company was also developing the No. 6 mine located 

underneath Eagle No. 5 mine. There was at least one worker 

present in the setup entry at all times while the inspector 

was in the area. 

Shields used in mining can be raised up to 12 feet high 

and they are 4! to 5 feet wide. When all shields are in place 

the mining then proceeds. The normal longwall face consists 

of 130 to 140 shields. The top of the shield defines the roof. 

The floor is coal; the backwall is the shield and at the front 

of the shield is the coal face. 

At the time of the inspection there were 8 to 14 shields in 

the setup entry. These was about 10 percent of the shields that 

would be needed before any mining could commence. 

The shields are moved into the setup entry one at a time. 

It would take about 28 additional days to move all of the shields 

into position. The operator had just started the process of 

moving the shields. 

When it is set up, the pan-line is some 600 feet long; at 

the time of the inspection about 300 feet of the pan-line was in 

place. It would have taken the operator an additional 3 weeks to 

set up the balance of the pan-line. The shield was not in place 

and the mining equipment was not energized. No mining could take 

place in this area until the drums are installed and energized 

and the shields are in place. 

1557 
Workers were using diesel equipment to set up the mining 

equipment. The presence of such diesel equipment in the setup 

entry affects and partly blocks the entry. The cooling fans on 

the diesel equipment will affect the air in the entry. 

Company representative Stalter did not complain when Inspector Montoya took readings next to a piece of diesel equipment. Cobb's reading shows there was no carbon monoxide present 

but at that time the foggy area had cleared up. From everything 

that could be seen the inspector concluded that the carbon 

monoxide was within the limits of the applicable regulation. 

No respirable dust measurements were taken. 

Inspector Montoya reiterates his opinion: in this section of 

the mine there was a lack of air or, as he described, "no air." 

Measurements by Cyprus were consistent with the inspector's 

readings and a couple of times Cobb took readings that were 

1,000 to 1,200 CFM in excess of the inspector's readings. 

Towards the end of the shift Cobb had readings of 1,000 to 

1,500 more CFM than Inspector Montoya would measure. 

Montoya was with company representative Pike when Pike took 

a measurement in excess of 50,000 CFM on the intake end of the 

longwall face. The inspector agreed at the hearing that there 

was plenty of air on the intake roadway where Pike had taken his 

measurements. 

If there is no ventilation plan in effect, MSHA regulations 

provide for a minimum airflow but the company was not cited for 

such a violation. 

The minimum MSHA requirements apply if there is no ventilation plan and miners are present in the area. 

An MMU (mechanized mining unit) is identified by an MSHA 

I.D. number. 

The ventilation plan (Exhibit P-3) follows this particular 

longwall section. (The idea is the MMU number stays the same 

regardless of the locati~n of the equipment.) 

MSHA requires that ventilation be directed at active mining 

areas. The purpose of the ventilation plan is to provide sufficient air for miners. 

1558 
A "working section" to Inspector Montoya means the presence 

of miners working on equipment in a setup entry. 

The setup entry itself is cut with a continuous miner. 

When it is being cut, a continuous miner ventilation plan would 

apply. Once the company starts to move mining equipment into 

the entry, then the longwall ventilation requirements apply. 

The continuous mirier plan requires a lower air movement. 

The longwall and the shear both carry the same MMU number. 

If the section does not have an MMU number designation the 

ventilation plan would apply. 

The inspector obtained no anemometer readings at all. 

However, there were times when he had 2,000 to 3,000 CFM. These 

readings would last for 5 minutes then go to zero. 

Respondent's Evidence 

ROSS STOLTER is a safety director for respondent. His 

responsibilities include inspections, test devices, and workman's 

compensation. He also oversees the safety department. 

On the date of this inspection he accompanied Inspector 

Montoya and was present when the air measurements were taken. 

They initially went to the take-down room where most of the 

shields (115 to 120) were located. 

When they arrived at the setup room there were two 

mechanics and a maintenance foreman present. The purpose of 

the setup entry is to set up the mining equipment. The entry 

is 26 feet wide and it can be as wide as 28 feet. A regular 

entry is 18 feet wide but it will not exceed 20 feet. 

The common air comes into this area on the left-hand side 

of Exhibit P-2 and the air is then split into three entries. 

There were a few shields in the setup room. The back of 

the shields make up the back wall. It is not over 15 feet from 

the longwall face to the back of the shields. (The witness 

illustrated his testimony on a blackboard). 

The shields themselves were not in place at the time of this 

inspection. The company could not mine coal until the shields 

were situated. The company was at least 14 days from mining any 

coal. All equipment must be totally installed before coal mining 

can begin. 

1559 
Diesel equipment moves the shields into the setup area. 

In addition, the pan-line is moved into the area in 15 foot 

sections. 

Inspector Montoya took readings near the scoop. The scoop 

fan blew air against the normal flow of air into the entry. 

In effect the scoop was creating resistance to the normal airflow. This phenomena only occurs during setup and take-down 

procedures. 

The inspector concentrated his measurements near the 

headgate area. The witness did not recall how many times the 

inspector took air measurements. Low air movements were recorded near the scoop. 

Company representative Pike also took measurements at the 

intake and the longwall face. These measurements indicated an 

airflow of 55,400 CFM. 

At the time of the inspection, Shield No. 10 and Shield 

No. 115 had not been moved into the setup entry. 

The entry behind the setup entry is the one that Mr. Montoya 

referred to as a bleeder entry. 

During the set up it is not possible to seal off the bleeder 

entry because that entry must be used by the equipment and because the setup entry was blocked by the shields. The shields 

increase the velocity of the air. 

The ventilation plan was submitted to MSHA and it was intended that it would be applicable when there was active cutting 

of the coal. 

During the inspection the witness took carbon monoxide 

measurements which measured less than 10 PPM. The threshold 

limit is 50 PPM. Mr. Montoya took no dust samples. 

Mr. Stalter and Mr. Pike also took measurements. There 

were fluctuations in the airflow depending on the diesel equipment that was checked. 

After Mr. Montoya took measurements showing insufficient 

air, he asked for the ventilation plan and threatened the 

company with a Cd) order. He also stated he wanted 30,000 to 

35,000 CFM before he would abate the citation. He also wanted 

the company to change the ventilation. Stalter did not have 

the authority for such a change so he contacted Jim Pike, the 

company's foreman. 

1560 
When there was no diesel equipment in the setup entry the 

airflow was 31,000 CFM but that was insufficient because it was 

not constant. Inspector Montoya believed it to be insufficient. 

Mr. Montoya does not understand the delicate nature of the 

ventilation of the mine; further, Mr. Stelter did not have the 

authority to change the ventilation. Such change could affect 

and heat the gob. 

At the time the company was under an MSHA Ck) order due 

to a previous fire. The Ck) order had critical restrictions 

and because of this the company could not randomly move the 

ventilation. 

Regarding the MMU number: After the longwall was finished 

the company would send a letter to MSHA deactivating the MMU. 

It would then be reactivated when the company cut coal again. 

When this citation was issued the MMU unit was not active and 

MSHA had been so advised. 

At the time of the inspection there were some shields in 

place and there was a pan-line about half way down the entry. 

Mr. Stelter did not know how many times Inspector Montoya 

had taken air samples and he didn't recall the number of measurements that he had taken himself. It was somewhere between ten 

and twenty measurements. Montoya took measurements on both sides 

of the shields. 

Also measurements were taken throughout the area but most 

of them at the tailgate side in the entry. 

Mr. Stelter used an anemometer and the smoke tube; CFM can 

be determined with an anemometer. 

Mr. Stelter did not take any readings near zero and he was 

present when Mr. Cobb, the fire boss, was in the area. He agreed 

that there was little air movement when Mr. Montoya took his 

readings. 

Between 6:30 p.m. and 7:30 p.m. there was more active air 

movement. 

1561 
In order to attain an airflow of 200 feet per minute at 

a given point you would need 49,400 CFM. The witness did not 

know what it would take to establish a 200 feet/min. airflow 

with 3 shields in the setup entry but it would be something 

less than 49,400 CFM. The ventilation plan also serves to 

control methane. 

State law requires that the company maintain a certain 

amount of air. 

A working section is defined in the regulations as being 

where coal is extracted and loaded out. 

The ventilation plan goes into effect when the shear goes 

into operation. Less than 10 percent of the shields were in 

place and most of Mr. Montoya's measurements were taken in the 

middle of the face. 

During the continuous miner operation the company transports materials such as roof bolts into the section. 

CLIFFORD J. PIKE, General Mine Foreman, is a person experienced in mining and he is responsible for the enforcement 

of the company's ventilation plan. 

On December 10, 1987, he made the plan available to 

Mr. Montoya and Mr. Stelter. He measured the air in the intake entry at 53,000 CFM. He was also present during the 

rest of the inspection. He let Mr. Cobb do most of the air 

readings. While measurements were being taken he was concerned 

with directing into the area the amount of air that Inspector 

Montoya wanted. He felt the company had a sponton l/ problem. 

It is the witness' policy that he tries to make MSHA happy 

whether they are right or wrong. But to him there was nothing 

in this section that indicated a lack of air movement. However, 

the company did not delay and tried to get Mr. Montoya what he 

requested. However, the witness had to make sure that ventilation changes did not cause detrimental things to happen elsewhere 

in the mine. In addition to putting more air into the setup 

entry, he put up a directional air current that did not cause 

any emissions problem in the area. 

1/ Spontaneous combustion. 

1562 
By way of illustration Mr. Pike indicated that if one were 

to place an anemometer at a window, he would get a certain CFM 

airflow. On the other hand, if you take the same anemometer and 

place it in the corner of a room, you would get a lower airflow. 

In his opinion, the flow of air is similar to the flow of water. 

The CFM remains the same. In short, the measurements should be 

on the intake side and the return side. 

The witness agrees he took a few readings in the setup 

entry and found very little movement on the anemometer. However, 

velocity does not have to be constant. Mr. Pike took measurements at the mouth of the section and the measurements measured 

78,000 CFM. At the end of the section the second reading indicated a flow in excess of 50,000 CFM but these measurements 

were not taken in the setup entry. 

In the witness' opinion the amount of airflow required 

by the ventilation plan would not apply to the setup entry. 

Other portions of the law would apply such as the required 

concentration of oxygen or a perceptible movement of air. 

Concerning scoops that might be in the area: airflow is 

required by the ventilation plan at half of the nameplate of 

the braking power. Some machines go to 7,000 to 9,000 CFM. 

The witness did not see any dust in the air but there was smoke. 

That is common to diesel and welding activity. 

When the witness examined for air he didn't see any dust 

in the area but there was smoke. This is common to diesel and 

welding activity. 

Evaluation of the Evidence 

A credibility issue arises in this case as to the airflow 

in the setup entry. Inspector Montoya indicated that the airflow 

was so minimal that the anemometer would not turn. He then used 

a smoke tube. These two factors establish a lack of air movement 

in the setup entry. The operator's witnesses essentially concede 

the above condition in the setup entry. 

On the other hand, measurements taken by company representatives on the intake side and return entry side indicate 

a sufficient airflow. The inspector does not dispute that 

there was sufficient air at these places. 

1563 
However, the pivotal issue in this case is whether the 

operator violated the ventilation plan. The ventilation plan 

mandates the quantity and velocity of air reaching each working 

face. 

The ventilation plan, as evidenced by Exhibit P-3, requires a minimum quantity of air reaching the intake end of 

the longwall face to be 40,000 CFM. Further, the minimum 

velocity of air maintained across the longwall face shall be 

200 feet/min. at Shield No. 10 (intake side) and 100 feet/min. 

at Shield No. 115 (return side). The pivotal issue in turn 

requires a definition of what constitutes a working face. 

MSHA believes that the term "working face" is to be read 

broadly, that any time there is some work which is the beginning 

of activity which will result in the extraction of coal, then 

the ventilation plan is in effect. 

I disagree. The evidence here is uncontroverted that the 

pan-line and shields were not in place and they are necessary 

predicates to establish a working face. Obviously no coal was 

being produced. 

Respondent argues that this case is controlled by the 

Secretary's own definitions as contained in 30 CFR § 75.12(g)(3) 

and§ 75.2(g)(l). 

30 CFR § 75.2(g)(l) provides as follows: 

"Working face" means any place in a coal 

mine in which work of extracting coal 

from its natural deposit in the earth is 

performed and during the mining cycle. 

30 CFR § 75.12(g)(3) provides as follows: 

"Working section" means all areas of the 

coal mine from the loading point of the 

section to and including the working 

faces." 

The facts involved 

of MSHA's definitions. 

of extracting coal from 

performed". 

in this case fail to fall within either 

A working face, in part, is where "work 

its natural deposit in the earth is 

It is apparent on the uncontroverted evidence that no such 

work as comtemplated by the regulation was performed. No coal 

was extracted from its natural deposit in the earth. The only 

work being performed was the work preparatory to the actual extraction of coal. Nor was there a mining cycle. To like effect 

1564 
see the decision of Commission Judge Roy Maurer in BethEnergy 

Mines, Inc., 10 FMSHRC 224 (1988). (Pending on review.) 

The Secretary also relies on the velocity of air required 

by the ventilation plan at shield No. 10 and No. 115. However, 

it is uncontroverted that these shields were not in the entry 

when the citation was issued. 

In sum, the setup entry was not a working face and 30 C.F.R. 

§ 75.316 is not applicable. 

It follows that the Secretary has not established a violation of the ventilation plan. It accordingly follows that 

Citation No. 2504948 should be vacated. 

At the conclusion of the hearing, in her closing argument, 

the Secretary stated that if the ventilation plan is not applicable then 30 CFR § 75.301 applies and the court should rely on 

that section to establish a violation. 

The Secretary did not move to amend her complaint. Further, 

the Secretary's "suggestion" was not timely made. 

ORDER 

For the foregoing reasons the following order is appropriate: 

Citation No. 2504948 and all proposed penalties therefor 

are vacated. 

Law Judge 

Distribution: 

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

CO 80294 (Certified Mail) 

Michaels. Beaver, Esq., Holland & Hart, 7887 East Belleview 

Avenue, Suite 1250, Englewood, CO 80111 (Certified Mail) 

/ot 

1565 
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 3 1989 

ED YANKOVICH, President 

PAUL BRANCHISH, Chairman 

et al., 

DISCRIMINATION PROCEEDING 

Docket No. PENN 89-214-D 

Complainants 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

: Dilworth Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by 

several UMWA miners against the respondent pursuant to section 

105(c) (3) of the Federal Mine Safety and Health Act of 1977. The 

complaint alleges that on or about October 5, 1988, respondent's 

mine management met with complainants Yankovich and Snyder, 

officials of Local Union 1980, who represent the miners, and 

announced the proposed implementation of "a new approach" to the 

reporting of work related accidents. The complaint alleges that 

after explaining the new approach to the local union officials, 

management called in approximately eight or nine employees, 

including the named complainants Stockdale, Adams, Azzardi, 

Kridle, and Reed, and informed them that they were considered 

"high risk" because of their previously reported accidents, and 

that a future reportable accident could subject them to 

discipline or discharge. The complainants assert that this new 

program inhibits miners from filing accident reports required to 

be submitted to MSHA, and is an interference with their rights 

under section 105(c) of the Act. 

The respondent filed·an answer to the complaint, and 

admitted that it had met with the complainants and informed them 

of management's intentions to adopt and implement "a safety 

awareness approach" with respect to reportable accidents. 

However, the respondent denied that it threatened any employees 

with discipline solely because of any accident reports that they 

may file, and denied that its program interfered with the 

1566 
statutory rights of the complainants. The respondent further 

asserted that its "safety awareness approach" has been 

permanently suspended and does not exist at the mine. 

The respondent has now filed a motion to dismiss the 

complaint, and in support of its motion states that the issue 

raised by the complaint concerning its "safety awareness 

approach" is now moot because of an adverse arbitration decision 

which has caused mine management to permanently suspend the 

approach. The United Mine Workers of America (UMWA) has 

responded to the motion and states that it "would not oppose 

dismissal without prejudice to refile with the Commission should 

the complained of program be reinstituted." 

ORDER 

The respondent's motion to dismiss IS GRANTED, and the 

complaint IS DISMISSED, without prejudice to its refiling by the 

complainants. 

Judge 

Distribution: 

Mary Lu Jordan, Esq., United Mine Workers of America (UMWA), 

900 15th Street, N.W., Washington, DC 20005 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

/fb 

1567 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMM-1-5510~ 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE. 

FALLS CHURCH, VIRGINIA 22041 

AUG 3 0 1989 

CLINCHPIELD COAL COMPA~Y, 

Contestant 

v. 

SBCRE'rARY OF LABO'R., 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA C UMWA), 

Intervenor 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. VA 89-67-R 

Order No. 2965464; 8/1/89 

McClure No. 1 Mine 

DECISION 

Appearances: Laura E. Beverage, Esq., and David J. Hardy, Esq., 

Jackson & Kelly, Charleston, West Virginia, for 

Contestant; James Crawford, Esq., Office of the 

Solicitor, U.S. Department of Labor, Arlington, 

Virginia, for the Respondent, the Secretary of 

Labor (Secretary); Mary Lu Jordan, ~sq., 

Washington, D.C., for Intervenor, United Mine 

workers of America CUMWA). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

On August 2, 1989, Contestant Clinchfield filed a Notice of 

Contest of an order of withdrawal issued August 1, 1989, under 

section 104Cb) of the Act for failure to abate a citation issued 

June 5, 1989. On the same day Clinchfield filed a Motion for 

~xpedited Proceedings. Following a telephone conference call 

with counsel for Clinchfield and the Secretary, t scheduled a 

prehearing conference in Falls Church, Virginia, on August 3, 

1989, and notified counsel for the UMWA as ·the putative 

representative of the miners. The Secretary's counsel stated the 

Secretary's answer to the notice of contest on the record at the 

prehearing conference. Th~ parties informed me that a Petition 

for Modification had been filed by Clinchfield, which, if 

granted, would permit the condition for which the citation and 

order were issued. The Secretary supports the Petition, but it 

ls opposed by the UMWA, and a hearing was requested, and is 

1568 
scheduled in November 1989, before a Department of Labor 

Administrative Law Judge. 

Clinchf ield also filed an Application for Temporary Relief· 

on August 3, 1989, and a memorandum in opposition to UMWA's 

request to intervene on August 4, 1989. 

Pursuant to notice issued August 3, 1989, the hearing 

commenced in Abingdon, Virginia, on August 7, 1989. Following 

oral argument, I granted UMWA's request to intervene and denied 

Clinchfield's motion to dismiss UMWA as a party. The case was 

heard on August 7, 8, and 9, 1989. James A. Baker, 

Robert A. Elam and Harry c. Verakis testified on behalf of the 

Secretary. George Strong, Donald Mitchell, and Thomas Asbury 

testified on behalf of Clinchfield. George P. Willis, 

Thomas J. Rabbit, Robert J. Scaramozzino, James Weeks, 

Samuel J. Clay, and Danny Davidson testified on behalf of the 

UMWA. 

At the conclusion of the testimony, counsel for all parties 

waived their right to file post-hearing briefs and each argued 

his/her client's position on the record. Following the oral 

arguments, I issued the following decision from the Bench: 

JUDGE BRODERICK: All Right. 

First, there are a couple of matters that I will rule 

on. 

Number one, the motion to certify my order permitting 

UMWA intervention, to certify that order to the 

Commission for Interlocutory Review is denied. 

Secondly, because I have heard the entire testimony on 

the merits of this proceeding, the motion for relief 

under section 105(c} of the Act is denied. 

Now, on the basis of the entire record made before me, 

and the contentions of the parties, I issue the 

following Decision. I should preface that with the 

observation that the overriding value in the Mine Act 

is the health and safety of the miners, and all 

Commission decisions interpreting the Mine Act have to 

keep that overriding value foremost. 

Citation Number 2911079 was issued June 5, 1989, to the 

McClure Number One Mine alleging that the conditions in 

the Decision and Order modifying the effect of 30 C.F.R. 

75.326, which were in effect at the subject mine, were 

not being complied with, in that air velocity in excess 

1569 
of three hundred feet per minute was found to exist on 

the belt entry; namely, at one location, a velocity of 

seven hundred twenty feet per minute was found. 

Because the citation was not abated in the time fixed 

and extended for abatement, an order of withdrawal was 

issued on August 1, 1989, under section 104(b) of the 

Act for failure to abate. 

Clinchfield filed a notice of contest of the order. It 

is not contested that the conditions found in the 

citation and order existed; nor is it contested that 

these conditions violated the provisions of 30 C.F.R. 

75.326, as modified. The contest is based on the 

contention that complying with those provisions would 

create a diminution of safety in the mine. 

The Secretary who issued both the Citation and the 

Order agrees that compliance with the present 

requirements, that the air velocity in the belt entry 

not exceed three hundred feet per minute, would result 

in a hazard to miners. 

The Intervenor, United Mine workers of America, 

representative of the miners, disagrees with the 

Secretary's position and urges that the Order of 

Withdrawal be affirmed. The Secretary and the operator 

have introduced substantial evidence that to enforce 

the present belt entry air velocity requirements would 

result in serious danger to miners in the subject mine 

because of the possibility of a methane fire or 

explosion. 

The United Mine workers of America have introduced 

substantial evidence that permitting an increase in the 

belt entry air velocity would result in serious danger 

to miners in the subject mine because of the potential 

for propagating belt fires and because of the potential 

of causing float coal dust and respirable dust. 

Whether the belt entry air velocity requirements should 

be increased or remain unchanged is, I believe, the 

primary issue in the Petition for Modification 

proceeding presently pending before the Department of 

Labor. I have heard substantial evidence relating to 

that issue and I permitted evidence to be introduced by 

all parties in order to complete the record because I 

believe the case before me is a case of first 

impression. 

1570 
This evidence has been perhaps far ranging beyond the 

scope of my responsibility in this hearing, but I 

believe it is important to have as complete a picture 

as I can. However, I do not have, fortunately or 

unfortunately, the responsibility or jurisdiction to 

determine whether the belt entry air velocity 

requirements should be increased or should be kept at 

the same level. The question before me, as I see it, 

is whether to affirm, vacate, or modify the contested 

order and its underlying citation. 

On the bases of the substantial evidence submitted by 

Contestant and the Secretary, and particularly that 

submitted by the Mine Safety and Health Administration, 

which is the government agency charged with enforcing 

the Act in the interests of the safety of miners, and 

because there is a pending petition for modification 

which is intended to resolve the conflicting views 

relative to safety and hazards presented by the belt 

entry air velocity, I hereby order that Order of 

Withdrawal, Number 2965464 is DISSOLVED. 

I further order that the underlying Citation 2911079, 

is modified to extend the time of abatement to the date 

of the commencement of hearing on the 10l(c) Petition for 

Modification. 

By these orders, I am not in any way discounting or 

minimizing the substantial safety issues raised by the 

Intervenor, the United Mine workers of America. 

Neither am I attempting to weigh the evidence on either 

side of the issue, which is the responsibility of the 

authorities charged with deciding the Petition for 

Modification. 

I am, however, ruling that in view of the Secretary's 

position and the evidence introduced in support of it, 

that complying with the contested citation and order 

may result in a diminution of safety, and in view of 

the pending petition for modification, relief should be 

granted. I am granting it from the terms of the order 

until this matter is submitted for decision on the 

Petition for Modification. 

1571 
I hereby reaffirm the above Bench Decision. I GRANT the 

Notice of Contest and VACATE the contested order. I MODIFY the 

underlying citation by EXTENDING TH~ TIME FOR ITS ABATEMENT to 

the date the hearing commences on the pending Petition for 

Modification. 

Distribution: 

l/r(faiuz5 A-/J:ocliie/ ~v~ames A. Broderick 

Administrative Law Judge 

Laura E. Beverage, Esq., David J. Hardy, Esq., Jackson & Kelly, 

1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322 (Certified 

Mail) 

James Crawford, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

St., ~.W., Washington, D.C. 20005 (Certified Mail) 

slk 

1572 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ASARCO, INCORPORA.'rED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASARCO, INCORPORATED, 

Respondent 

JUL 12 1989 

. . 

. . 

ORDER 

I. 

CONTEST PROCEEDING 

Docket No. SE 88-8.2-RM 

Citation No. 3252969; 7/lo/88 

Docket No. SE 88-83-RM 

Citation No. 3252970; 7/16/88 

Immel Mine 

MINE ID 40-00170 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-67-M 

A. C. No. 40-00170-05520 

Immel Mine 

On April 12, 1989, the Secretary (Petitioner) served ASARCO 

(Respondent) with a Deposition Notice and Request for Production 

of Documents. The Notice requested the Respondent to designate 

representatives to testify, in essence, as to the Tennessee Mines 

Division's history of compliance with various standards of the 

Federal Mine Safety and Health Act and applicable regulations, as 

well as its safety policies and procedures, management structure 

and responsibility for determining electrical maintenance procedures and policies, and the factual events leading up to the death 

of Ronald Miller on July 15, 1988, and ASARCO's actions immediately 

following the fatality. In addition, Petitioner requested depositions be taken of certain.enumerated individuals including Fred 

Cain, John Ellis, John Jacques, Don Walter, and Jim Bales. 

On April 21, 1989, Respondent filed a Motion for Protective 

Order. In its Motion, Respondent seeks protection from the 

depositions of a corporate designee along with the tallowing 

individuals Cain, Ellis, Walter, Bales and Jacques. In essence, 

1573 
Respondent .indicates that its "would be,_" corporate designee 

Donald R. Ledbetter was deposed on Oc_c.ober 12, 19 88, and testified 

regarding all the matter requested by Pe~itioner, and that 

Petitioner extensively cross-examined him, and that deposing 

another corporate representative would "contribute nothing to 

resolving the Secretary's questions • • • " Respondent also 

alleges, in essence, that nether Cain, Ellis,- Walter, Bales, nor 

Jacques have personal knowledge of the circumstances of the 

incident in question nor could they testify as to ASARCO's 

relevant electrical policies and procedures. 

On May 12, 1989, Petitioner filed a response to Respondent's 

Motion for a Protective Order. Along with its response it 

attached a copy of Ledbetter's Deposition. 

On May 15, 1989, Respondent filed a state~ent in which it 

indicated that, pursuant to an understanding it reacned with 

Petitioner's Counsel, its reply to Petitioner's opposition to its 

Motion for Protective Order would be filed on or before May 31, 

1989. On June 1, 1989, Respondent's reply to the Secretary's 

response to its Motion for Protective Order was filed. 

The subject citations which are being contested by Respondent 

in the above captioned cases, allege violations of 30 C.F.R. 

§§ 5712017 and 5712019, and that the violations therein resulted 

from Respondent's high negligence. Accordingly, it is clear that 

an examination of Respondent's representatives with regard to the 

matters set forth in Petitioner's Motion, is relevant to these 

proceedings. It is manifest that an examination with regard to the 

events leading up to the cited incident and ASARCO's actions 

immediately following the incident, as well as an examination as to 

Respondent's policies and procedures and management structure as 

well as its history of compliance with various regulations, would 

be relevant to the issue of its negligence, which is a factor to be 

considered in determining the amount of a penalty to be assessed, 

should it be_found that Respondent has violated a mandatory safety 

standard. Thus, pursuant to Rule 30(b)(6) of the Federal Rules of 

Ciyil Procedure, Respondent shall designate a representative or 

representatives to testify as to the matters set forth in paragraph l.(a-d) and produce the documents set forth in paragraphs 

i, ii, and iii of Deposition Notice and Request for Production of 

Documents. The fact that Ledbetter had already been deposed by 

Respondent, and cross-examined by Petitioner, shall not serve to 

deprive Petitioner of its right to prepare for trial by examining 

Respondent's representatives who have knowledge of the matters 

set forth in paragraph 1 of Petitioner's Notice. 

~side from asserting that Cain, Ellis, Jacques, Walter, and 

Bales " .•• represent an apparent chain of authority of ASARCO's 

Immel Mine, one leading ultimately to Ronald Miller, the miner 

1574 
who was killed," Petitioner does not set forth any facts to support a conclusion that an examination of these individuals would 

be relevant to the subject matter involved in the pending action. 

Indeed, there are no facts presented to conclude that an examination of these individuals is reasonably calculated to lead to a 

discovery of admissible evidence. Respondent .has asserted that 

the enumerated individuals, in essence, do not have knowledge of 

the matters set forth in Petitioner's Notice. However, aside 

from its own assertion, there are no affidavits setting forth any 

facts to support these assertions. I thus conclude that there 

are not sufficient facts set forth before me to conclude that an 

examination of the above enumerated individuals would be relevant 

to the subject matter at hand. However, should it appear from 

the deposition of the individual or individuals designated by 

Respondent, and examined pursuant to this Order, that other 

individuals have knowledge of the matters sought to be deposed as 

set forth in Petitioner's Notice, then Petitioner shall be 

afforded the right to depose these individuals. 

Inasmuch as.Petitioner, in its response to Respondent's 

Motion, indicated that it has withdrawn the request made in its 

Notice that Larry E. Thomas be present at the time of a requested 

inspection of the mine and accident site, it appears £rom 

Respondent's reply that it no longer objects to Petitioner's 

request to inspect and photograph the mine and accident site. 

Accordingly, this request is GRANTED and it is ORDERED that 

Respondent permit the Petitioner to inspect the subject mine and 

accident site, and photograph the same, and such inspection is to 

be performed at a time to be agreed upon by Counsel £or both 

Parties. It is further ORDERED that Respondent shall produce for 

deposition all individuals having knowledge of the matter set 

forth in paragraph 1 of Petitioner's Notice, and these individuals shall produce all documents referred to in paragraph 1 of 

Petitioner's Notice. The depositions are to be taken within 

10 days of this Order, unless the Parties agree upon an extension, 

at a site to be mutually agreed upon. 

II. 

On March 9, 1989, Respondent served upon Petitioner a First 

Set of Interrogatories requiring an answer and response on or 

before 15 days after service. On April 21, 1989, Respondent 

filed a Motion for an Order to Compel Answers to Interrogatories. 

On May 12, 1989, Petitioner filed its Answers to Respondent's 

First Set of Interrogatories. In its Answer it objected to a 

number of the Interrogatories. On June 1, 1989, Respondent filed 

a Motion to Compel Answers to Interrogatories. Petitioner did 

not file any response to this Motion. 

1575 
a. Interrogatory No. 2 

Interrogatory No. 2 requests as· follows: 

Please state the names, addresses, and employment 

positions of each person assisting in any way, directly 

or indirectly in the preparation of the answers to 

these Interrogatories, and state the answer(s) which 

each person so listed has assisted in preparing. 

Petitioner in its response has indicated that a Mr. Daugherty 

in answering the Interrogatory was assisted by an attorney for the 

Secretary and "These communications are privileged pursuant to the 

attorney-client privilege." It should be noted that Respondent 

does not seek to discover any communications between the attorney 

for the Secretary of Labor and his client. The Interrogatory 

merely request the identification of any person assisting in the 

preparation of Answers to the Interrogatories. As such a response 

to Interrogatory No. 2 does not violate an attorney-client 

privilege and should be answered. 

b. Interrogatory No. 7 

Interrogatory No. 7 requires the listing by name of each 

person the MSHA Inspectors contacted in the course of the MSHA 

investigation prior to and after the issuance of each of the citations in issue. Petitioner as a response indicated that "Contacts 

after the initiation of these proceedings would be privileged as 

'work product' under Rule 26(b)(3), Fed. R. Civ. P." 

This Interrogatory, in essence, seeks the identity of persons contacted by an MSHA Inspector, rather than material prepared 

by Counsel in preparation of trial. As such, the listing of names 

would be beyond the "work product" protection (see cases cited in 

Moores Federal Practice at 26-354, 355). 

In its Answer, Petitioner further indicates that "consultation with miners and informants would be nondiscoverable except 

as provided under Commission Rule 59." In this connection, 

Respondent has requested that information requiring informants be 

provided 2 full days before the hearing pursuant to 29 C.F.R. 

§ 2700.59. 

Section 2700.59, supra, prohibits the disclosure of names of 

miners who are informants, except in "extraordinary circumatances." 

Respondent has not alleged any extraordinary circumstances herein. 

Accordingly, in complying with Interrogatory No. 7, Petitioner shall 

not divulge names of informants wha are miners. Also, pursuant to 

Section 2700.59, supra, Petitioner, in answering Interrogatory 

No. 7, shall, 2 days prior to the hearing, disclose the names of 

miners who are expected to testify at the hearing. 

1576 
c. Interrogatory No. 11 

Interrogatory No. 11 requests as follows: 

Please state, if not in writing and subject to one 

of the following requests for productionr MSHA's policy 

or policies regarding (a) findings of high negligence; 

Cb) interpretation of 30 C.F.R. § 57.12017; and Cc> 

interpretation of 30 C.F.R. § 57.12019. 

Petitioner's response to this interrogatory was as follows: 

"None." Respondent in its Motion argues as follows: "It is 

unclear whether 'none' means none exist, or none exist other than 

those in writing and not produced pursuant to the request for 

production." Accordingly, Respondent's position, in the interests 

of justice, is sustained, and Petitioner shall clarify, in its 

response to Interrogatory No. 11, whether MSHA does not have any 

policy with regard to matters referred to in Interrogatory No. 11, 

or whether it does not have any such policy other than those in 

writing and not produced pursuant to the requeat for production. 

d. Interrogatory No. 14 

Interrogatory No. 14 which was objected to by Petitioner on 

the ground that it was not relevant nor would it lead to relevant 

evidence, requires the identification of individuals who initiated, 

consulted on, and/or participated in the special assessment of 

civil penalties relating to the citations in issue and a description of their roles in the assessment process. Respondent's 

position is that the request for these name~ is relevant as they 

are the ones who determined the penalty which is a relevant issue 

to the case at bar. Inasmuch as the Commission has the authority, 

de novo, to assess all·civil penalties provided for in the Federal 

Mine Safety and Health Act of 1977, based upon factors enumerated 

in section llOCi), supra, it is clear that the identity of individuals who participated in the special assessments of civil 

penalties would not be relevant to a decision by the Commission. 

Such a decision, on the issue of a penalty is to be based upon the 

factors in section llOCi) of the Act, which have to be established 

in an evidentiary hearing. Further, aside from indicating that 

those who participated in the special assessments are the very ones 

who determined the penalty found by MSHA herein, Respondent has not 

articulated in what fashion the identity of these individuals would 

be reasonably calculated to lead to the discovery of evidence which 

would be relevant to the establishment of any of the factors set· 

forth in section llO(i) of the Act, and thus a resolution of the 

issue of a penalty to be set by the Commission. Cc.f. see cases 

cited in Moores Federal Practice, supra, at 26-96.) As such, the 

objection ot Petitioner to Interrogatory No. 14 is sustained. 

1577 
e. Interrogatory No. 16 

Interrogatory No. 16 requests a~ foll6ws: 

Identiiy the individuals who initiated, consulted 

on and/or participated in the special inv.estigation of 

the alleged violations which are at issue in this 

proceeding and describe each of their roles in the 

special investigation. 

Petitioner has objected to this Interrogatory on the ground 

that it is not relevant nor would it lead to relevant evidence. 

In the alternative Petitioner asserts that in order to avoid the 

appearance of impropriety and protect the rights of the individuals who many be targeted for investigation under criminal 

provisions of the Act, it has kept the civil p~oceedings segregated from any criminal investigation. 

Respondent has alleged, that the investigation involved the 

same subject matter as that involved the incident proceeding. 

This allegation has not been contested by Petitioner. Further, 

Petitioner has indicated that the criminal investigation has been 

completed. Also, importantly, it is clear that the Petitioner's 

interest in avoiding 11 ••• the appearance of impropriety and 

protect the rights of those individual who may be targeted for 

investigation under criminal provisions of the Act," would not be 

thwarted by identifying individuals who "initiated, consulted on, 

and/or participated," in the special investigation. Respondent 

has not requested, and no identification shall be allowed, of any 

list or identification of those individuals who may be the target 

of or subject of the investigation. Hence, Petitioner shall 

answer this Interrogatory. 

Thus, it is ORDERED, that within 10 days of this Order, 

Petitioner shall serve Respondent with a full and complete answer 

to Interrogatories 2, 7, 11, and 16. It is further ORDERED that 

Petitioner's ·objection to Interrogatory No. 14 is sustained. 

It is ORDERED that, with regard to Interrogatory No. 7, 

Petitioner shall not divulge names of informants who are miners. 

Also, pursuant to section 2700.59, supra, Petitioner, in answering 

Interrogatory No. 7, shall 2 days prior to the hearing, disclose 

names of miners who are expected to testify at the hearing. 

III. 

On March 9, 1989, Respondent served Petitioner with a Request 

for Production. On April 21, 1989, Respondent filed a Motion for 

Order to Compel Document Production. On May 12, 1989, Petitioner 

1578 
filed its Responses and Objections to Re~pondent's Request for 

Production of Documents. On June 1, :1989, .Respondent filed a 

Motion to Compel Production of Documents~ 

In essence, Respondent's requests one through four-require 

the production of documents pertaining to Petitioner's enforcement policies for Respondent's mine including documents exchanged 

between various MSHA personnel, contacts between MSHA personnel 

and Respondent with regard to its violations and documents 

received by MSHA personnel or provided by these personnel to various investigative agencies concerning alleged violations or 

mining practices of Respondent. Also requested were any documents 

pertaining to the initiation, criteria, review, and processing of 

special assessment violations during the past 2 years. In 

Respondent's Motion to Compel Production of Documents it indicates 

that the latter request (request No. 3) seeks not all individuals 

special assessment documents "but rather the policies underlining 

them." 

In essence, Petitioner refuses to respond to these requests 

on the ground that it does not have any enforcement policies 

peculiar to one operator, and if it did have such policies they 

would not have any relevance to the instant, de novo, proceeding. 

In addition, Petitioner argues that the requests are so broad "as 

to be impossible to comply with," and as to be "unduly burdensome." 

In general, in order to eliminate surprise and allow the 

Parties to adequately prepare for trial, in general, the rules of 

discovery should be broadly applied (see, Hickman v. Taylor, 

329 U.S. 495 (1947)). Further, Rule 26(b)(l), suora~ provides 

for the discovery of material which is "relevant to the subject 

matter." It is not ne6essary for the matter sought to be 

discovered to be admissible in evidence as long as it is 

reasonably calculated to lead to the discovery of admissible 

evidence (see cases cited in Moores Federal Practice, supra, at 

26-96). In this connection, Respondent has alleged that the 

information sought is " ••• essential to explore and expose 

bias, undercover the bases for agency's actions and reveal 

potential exculpatory information." Respondent has also 

indicated that request No. 3 does not require the production of 

all individual special assessment documents, but is limited to 

the production of policies underlining them •. Accordingly, I 

conclude that the information sought in requests 1 - 4 are 

relevant. 

Petitioner in its objection to request No. 2 argued that the 

request seeKing documents made from contacts with MSHA personnel 

and "hourly personnel," regarding Respondent's operations seeks 

documents which "will or could identify miners" in violation of 

1579 
Rule 59. Thus, in complying with requesL No. 2 the Petitioner 

shall not disclose, until 2 days before the hearing, the name of 

any miner who was expected to testifi at .the hearing, nor shall 

it disclose the name of any informant who is a miner, unless the 

Respondent establish the existence of "extraordinary circumstances." 

Respondent also requested documents initiating the special 

investigation, documents initiating and relating to the special 

assessment, and relating to the special investigation of the 

events of July 15, 1988. Petitioner essentially argued that 

these requests are overly broad and that the matters sought to be 

disclosed are not relevant. In addition, with regard to the 

request for production of documents relating to the special 

investigation of the events of July 15, 1988, Petitioner incorporated the objections that it had made to Interrogatory No. 16, 

inira, and indicated in addition that the documents are protected 

as a "work product" of the Secretary's employees. 

Respondent has argued that the material requested in 

request Nos. 5 to 9, i.e. the investigatory and assessment files 

specific to the citations at issue, " ••• are essential to 

testing the accuracy of witnesses' percepcions: to probe the 

truthfulness of witnesses: to question memory: to explore and 

expose bias: to uncover the basis for opinions ana actions: and, 

to reveal potentially exculpatory information which may aid a 

respondent, such as ASARCO, in the preparation of its case." 

Petitioner has not filed any response to Respondent's Motion to 

Compel and thus has not rebutted Respondent's assertions. As 

such, I conclude that the material sought to be discovered is 

relevant. 

Petitioner has not definitively indicated that the material 

sought by Respondent in request No. 9 was prepared in anticipation of litigation. Also the material sought would not impede 

the investigatory process as Petitioner, in its objection to 

Interrogatory No. 16, filed May 12, 1989, indicated that although 

the investigation was "not technically clo~ed," the Solicitor had 

been informed that the investigation "has been completed." 

Accordingly, Respondent shall comply with this request. 

It is ORDERED that, within 10 days of this Order, the 

Petitioner shall respond to Interrogatories 1 through 13, 15, and 

16 and Request for Production of Documents 1 .. through 9 served by 

Respondent on March 9, 1989. 

Avram 

~L Weisberger 

Administrative Law Judge 

(703) 756-6210 

1580 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. · 20006 

July 20, 1989 

SECRFTARY OF LABOR, 

MINE SAF~TY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CONSOLIDATIO!i. COAL COMPANYt 

Respondent 

: 

. . 

. . 

: 

: 

CIVIL PENALTY PROCEEDINGS 

Docket No. WlWA 89-20 

A. C. No. 46-01433-03848 

: Loveridge No. 22 Mine . . 

. . 

. . Docket No. WEVA 89-159 

A. C. No. 46-01968-03800 

: Blacksville No. 2 Mine . . 

: Docket No. WEVA 89-162 

A. C. No. 46-01318-03872 

: Docket No. WEVA 89-170 

: A. C. No. 46-01318-03873 

. . 

: Docket No. WEVA 89-171 

: A. C. No. 46-01318-03877 . . 

. . Robinson ~un No. 95 Mine 

Docket ~o. WEVA 89-183 

: A. C. No. 46-01453-03848 

: Humphrey No. 7 Mine 

ORDER DF.NYING SECRETARY'S MOTION FOR CHANGE OF HEARING 

SITE AND FOR CANCELLATION OF PREHEARING 

By notices dated June 16, 1989, and June 30, 1989, the 

above-captioned cases were set for prehearing conferences at 

2:30 p.m. on September 11, 1989, and hearings at 8:30 a.m. on 

September 12, 1989. On July 13, 1989, the Arlington Solicitor 

filed a motion objecting to the hearing site and to the prehearings. On July 18, 19~9, the operator responded requesting 

that the prehearings and hearings remain unchanged. 

After pointing out the operator in its answer initially 

requested a Morgantown site, the Arlington Solicitor asserts that 

Pittsburgh is not a convenient location. However, in its 

response to the ~olicitor's present motion the operator advises 

that it has no objection to the Pittsburgh site and in fact 

prefers it. Obviously, the operator does not need the Solicitor 

to speak for it. ~he Solicitor's reference to a two hour drive 

1581 
(which would be the maximum time> to the-designated site (which 

has a nearby airport) is not persuasive. ~he operator clearly 

does not view this as unduly burdensome and neither do I. 

~he Arlington Solicitor further complains about the prehearing conference. He alleges that 29 C.F.R. § 2700.54(b) which 

provides that the judge may require prehearing statements or prehearing conferences, means that he cannot ask for both. ~his 

interpretation is rejected. ~here is no indication that subparagraph (b) is intended to so limit the judge. Rather the 

choice is left to the judge of those procedural devices which in 

his view will best advance the many purposes enumerated in items 

(1) through (5) of the subparagraph. Also, subparagraph (b) 

follows subparagraph (a) of § 2700.54 which enumerates the 

powers of an administrative law judge to conduct and regulate 

administrative hearings. 

That the Arlington Solicitor's approach makes no sense is 

demonstrated by the recent case of Consolidation Coal Company v. 

Secretary of Labor, (Docket ~os. WFVA 88-290-R, WFVA 89-4) heard 

on May 9, 1989, and also assigned to the ~rlington Solicitor. In 

that case which involved significant and complex ventilation 

issues, preliminary statements were required and filed. Only 

after receipt of those statements did it become clear that there 

was substantial confusion and lack of understanding, particularly 

on the Solicitor's part, with respect to the issues presented. 

In order to assist the parties and expedite the hearing, t 

scheduled a prehearing conference for the afternoon preceding the 

day set for hearing. Crucial to the trial and disposition of 

that case was a mine map with more than 100 separate markings. 

~he meaning and relevance of the map were explored and resolved 

at the prehearing and remaining areas of dispute were identified. 

Because of the prehearing the subsequent hearing proceeded 

efficiently and expeditiously. 

~o meet the Arlington ~olicitor's allegation of lack of 

adequate notice for the prehearing in WBVA 88-290-R and 

W~VA 89-4, the date of the conference in those cases was rescheduled to the day of the hearing. T.n order to meet possible 

future objections regarding adequate notice, subsequent prehearing conferences have been scheduled in the notice which sets 

the case for hearing. Now the Solicitor wants to do away with 

prehearing conierences whenever he files a preliminary statement 

regardless of how much advance notice he has or what the case 

involves. 

Prehearing conferences held the day before the hearing have 

proved particularly helpful because the judge and counsel are 

free to consider relevant mattecs without pressure and time 

constraints arising from the immediate presence of witnesses 

waiting to. testify. ~hus in Secretary of Labor v. Consol 

Pennsylvania Coal Company, (Docket ~o. P~NN 89-111) heard on 

1582 
July 11, 1989, where a Philadelphia Solrcitor appeared, comprehensive stipulations were reached at :the prehearing held on the 

afternoon before the hearing. ~s a result, the hearing in that 

case took approximately one half the time it would have, had 

there been no prehearing. 

It is astonishing for the Arlington Solicitor to assert that 

"Prehearing conferences are not critical because these are not 

complex cases." '!'he .~rlington 8olici tor supplies no basis for 

this sweeping generalization. If he is referring to the 

above-captioned cases set for September 11 and 12, I do not 

believe he has sufficiently familiarized himself with them to 

make such an ·:argument. The preliminary statements in these cases 

are not due for another month. In this respect also the ~rlington Solicitor's position is wholly at odds with that of the 

operator whose response expresses the belief that such 

conferences can clarify and simplify the issues involved in the ~eptember cases. The operator asks that the prehearings remain 

as scheduled. 

If the Arlington ~olicitor's assertion of non-complexity 

includes all MSHA cases, I must disagree at least insofar as 

cases which have come before me, are concerned. Note again the 

mine map which had more than 100 separate markings. If indeed, 

all MSHA cases are simple for the Arlington 8olicitor, then he 

must be patient so that this Chief Judge and the operator may 

attain his level of understanding. 

As the .~rlington Solicitor undoubtedly is aware, the number 

of cases filed with the Commission and going to hearing are 

increasing. ~he Commission spends tens of thousands of dollars 

annually on reporting services for administrative transcripts. 

Preliminary statements and prehearing conferences are intended to 

handle cases not only promptly but economically. ~o identify 

issues and discuss preliminary matters for the first time at the 

hearing is a waste of time and money. I am sensitive to the 

Arlington Solicitor's desire to hold down his travel expenses and 

to the logistics whereby he prepates for hearings. In its 

response the operator suggests that in some cases prehearing 

conferences may not be of assistance and that each case should be 

judged individually. If the parties agree a prehearing would not 

be useful in a particular case and if I am notified sufficiently 

in advance for a conference call to be held at which time I can 

consider their views, the prehearing may be canceled where 

appropriate. 

In conclusion, I must state the Solicitor's motion comes as 

a surprise since t understand that the Arlington off ice operates 

under the aegis of Office of the Philadelphia ~egional Solicitor. 

1583 
For the past two decades I have found the Philadelphia Off ice 

preeminent not only for the timelines:s and substance of its 

filings, but for its cooperative attitude. 

Tn light of the foregoing, the ~olicitor's motion is DENIED. 

~---_\-r-\~ Paul Merlin 

Chief ~dministrative Law Judge 

Oistribution: 

~onald Gurka, F.sq., Office of the Solicitor, u. s. Department of 

Labor, 4015 Wilson Boulevard, ~com 516, ~rlington, VA 22203 

(Certified Mail) 

Michael R. Peelish, ~sq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

Marshall Harris, Bsq., Regional Solicitor, Office of the Solicitor, U. s. Department of Labor, Room 14480-Gateway Building, 3535 

Market Street, Philadelphia, PA 19104 (Certified Mail) 

~homas Mascolino, Bsq., Deputy Associate Rolicitor, Office of the 

qolicitor, U. ~. Department of Labor, Room 420, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

/gl 

1584 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

August 2, 1989 

SECRETARY OF LABOR, . . DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), . . Docket No. WEST 88-246-DM 

ON BEHALF OF HARRY RAMSEY, . . Complainant . . MD 87-51 

v. . . Colosseum Mine 

INDUSTRIAL CONSTRUCTORS CORP., . . Respondent . . 

INTERIM ORDER 

Appearances: Norman J. Reed, Esq. and Nathaniel J. Reed, Esq. 

Reno, Nevada, 

for Complainant; 

William T. Murphy, Esq., Washington Corporations, 

Missoula, Montana, 

for Respondent. 

Before: Judge Morris 

This case involves a complainant discrimination filed by 

the Secretary on behalf of complainant pursuant to the Federal 

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

After the case was at issue, and after other counsel appeared, 

the Solicitor of Labor moved to withdraw as counsel for complainant. After notic·e, no person objected and the Solicitor's 

motion to withdraw was granted (Orders: January 9, 1989 and 

January 23, 1989). 

After notice to the parties a hearing on the merits was held 

in Las Vegas, Nevada, on January 31, 1989. A subsequent hearing 

on the issue of attorney's fees is scheduled for October 24, 

1989. 

The applicable portion of the Mine Act, Section 105(c)(l), 

in its pertinent portion, provides as follows: 

Discrimination or interference prohibited; 

complaint; investigation; determination; hearing 

No person shall discharge or in any manner 

discriminate against or cause to be discharged 

or cause discrimination against or otherwise 

interfere with the exercise of the statutory 

rights of any miner, representative of miners 

or applicant for employment in any coal or 

1585 
other mine subject to this [Act] because such 

miner, representative of miners or applicant 

for employment has filed or made a complaint 

under or related to this [Act], including a 

complaint notifying the operator or the operator's agent, or the representative of the 

miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal 

or other mine •••• 30 u.s.c. § 815Ca)(l). 

Post trial briefs on the merits were filed by the parties. 

Applicable Case Law 

The general principles of discrimination cases under the 

Mine Act are well settled. In order to establish a prima facie 

case of discrimination under section 105(c) of the· Act, a complaining miner bears the burden of production and proof in 

establishing that Cl) he engaged in a protected activity, and 

(2) the adverse action complained of was motivated in any part 

by that particular activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981): Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April 1981). 

The operator may rebut .. the prima facie case by showing either 

that no protected activity occurred or that the adverse action 

was in no part motivated by protected activity. If an operator 

cannot rebut the prima facie case in this manner, it nevertheless 

may def end affirmatively by proving that it also was motivated by 

the miner's unprotected activity and would have taken the adverse 

action in any event for the unprotected activity alone. Pasula, 

supra: Robinette, supra. See also Eastern Assoc. Coal Corp. v. 

FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987>: Donovan v. Stafford 

Construction Co., 732 F.2d 954, 958-59 CD.C. Cir. 1984): Baich 

v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically 

approving the Commission's Pasula-Robinette test). Cf. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-413 (1983) 

(approving nearly identical test under National Labor Relations 

Act). 

1586 
SUMMARY OF THE EVIDENCE 

This case does not lack for credibility issues: The 

prior employment of HARRY C. RAMSEY, SR., included 20 years 

with Mobil Oil Company. He retired from Mobil in 1987. While 

working for Mobil his work schedule permitted him to own and 

operate a construction company. His company employed up to 

100 workers. The business was sold in 1983 when it became too 

large (Tr. 27-30). 

Since July 1988 Ramsey has been a ranger at a golf ·course 

in Las Vegas, Nevada (Tr. 24, 26). 

Between 1976 and 1987 Ramsey has owned and operated many 

pieces of heavy construction equipment (Tr. 27, 28, 33-34). He 

has been trained in fire fighting, safety training and first aid 

(Tr. 26, 29). 

After leaving Mobil, Ramsey went to work for respondent, 

He was hired to operate all types of equipment on the job site 

(Tr. 30-33). He was also a pick and shovel laborer for one or 

two weeks (Tr. 35, 36). 

-In late June, or early July, when the company set up a 

crusher operation, Ramsey·· became the loader operator. He spent 

most of his time on the loader but he didn't receive a re- classi~ication ~lip (Tr. 36, 37). 

The crusher operator has various duties. He is involved 

with the continuous flow of material, monitoring personnel and 

signaling personnel by hand and horn signals if a problem occurs 

(Tr. 38, 39) (Exhibit C-3 is an unscaled drawing showing the 

equipment layout for the crusher spreader) (Tr. 40). 

Cliff Morrison, the crusher foreman, instructed Ramsey in 

the manner and use of signals. 

The 8 foot by 8 foot.building (control· tower) where Ramsey 

operated the crusher had windows on all sides. It was 20 feet 

above ground level so the operator could see everything in the 

work field (Tr. 41, 42). Ramsey's duties required him to remain 

in the control tower structure. 

I 

1587 
If a build-up of material occurred the mechanic or foreman 

would indicate this to the crusher operator. The operator would 

then, by whistle signal, bring in the rest of the workers. When 

he could see all of the workers, the operator would then shut 

down the equipment. This is normal procedure for shutting off 

the machine CTr. 44). Morrison told Ramsey to operate under 

these procedures (Tr. 45). 

On the swing shift of August 12/13, 1987, Ramsey was in the 

control tower. The evening shift had started at 4:00 or 4:30 p.m. 

The normal shift lasts 10 hours. The foreman was in and out of 

the tower all of the time (Tr. 42, 43). 

About 45 minutes before the end of the shift they were 

crushing rock. At this point Superintendent Morrison came into 

view and gave Mr. Ramsey a hand signal to shut off the water. 

The signal was given from the normal signaling area. Ramsey 

hesitated when he saw the signal. There was still 30 to 45 

minutes of production left and he wasn't anticipating a shutdown at that exact time (Tr. 45, 46). When the water remained. 

on, Morrison signaled again. Ramsey had no idea why he should 

shut down the water but he followed the second direction (Tr. 46, 

47). In a couple of minutes Ramsey could not see the window of 

the control tower in front of him (Tr. 47). 

The main function of the water is dust control (Tr. 47). 

Ramsey agreed that they have operated a few times without 

water. If a worker walked through the area it is necessary to 

see that person to know if he is safe. If an employee cannot be 

seen on the site, the control operator automatically shuts down 

"real quick" (Tr. 48). There have been occasions where Ramsey 

shut down the equipment without signaling (Tr. 49). Ramsey has 

followed normal procedure by shutting off the machine and getting 

all employees out in front of the tower (Tr. 49, 50). 

On this occasion, after shutting off the water, in two or 

three minutes, Ramsey couldn't see anything. He listened but he 

heard nothing unusual (Tr. SO, 57). About two or three minutes 

elapsed after he shut off the machine CTr. 51). 

1588 
Ramsey estimated that five minutes elapsed from when he 

couldn't see at a·ll until he could make out shadows and equipment 

{Tr. 52). As soon as visibility cleared Morrison came·up to the 

control tower and asked Ramsey why he had shut down the crusher. 

Ramsey said he couldn't see. Morrison, who was hostile, told 

Ramsey that he'd tell him when to shut the water on and off 

{Tr. 54). 

Morrison then tore the daily work paper off the wall and 

went down the stairs {Tr. 54). 

Ramsey then ran the crusher {to clean off the accumulated 

material). It took about three to five minutes to clean the 

machine {Tr •. 55). 

Ramsey then approached Morrison and asked if he had the 

authority to turn the water on and off {as he had been previously advised when he started as an operator) (Tr. 57). In 

a three to five minute conversation, Morrison replied that he 

(Morrison) would be the one to tell him when to turn the water on 

and off (Tr •. 58, 59). Ramsey then replied that he wouldn't work 

for him under these conditions (Tr. 59). Ramsey was trying to 

get Morrison to tell him there was no problem. But he would only 

say that he'd be the one to. tell him what to do (Tr. 60). Ramsey 

repeated that he wouldn't work under those conditions. Morrison 

asked if he was quitting and Ramsey replied he was. Ramsey felt 

if he didn't have this latitude he would quit because it was not 

safe CTr. 16o, 61). However, Ramsey didn't intend to quit working 

for ICC 1 {Tr. 61). 

!/ While Ramsey stated he didn't intend to quit ICC, his actions 

of turning in his hard .hat and flashlight and saying he "quit" 

establish that he did, in fact, quit (Tr. 162, 164). 

1589 
Ramsey and the rest of the crew spent another 15 minutes 

completing normal clean-up work. Ramsey then got in Morrison's 

truck to ride to the bus and eventually home. There was no 

conversation between Ramsey and Morrison on the way to·the bus 

CT r. 61-6 3 ) • 

About 9:30 a.m. the following morning Ramsey called Mine 

Superintendent Hildebrandt and told him what had occurred at the 

end of the shift (Tr. 65). Hildebrandt said he'd check into it 

and get back with him (Tr. 65, 66). When he again contacted 

Hildebrandt, about a week later, Ramsey was adv!.sed by the 

company secretary that there was no work available CTr. 68, 

69, Ex. C-18). 

Ramsey talked to loader operator Boudreaux and company 

mechanic Chris Norskog. They concurred with what Ramsey had 

done (Tr. 70). 

Ramsey subsequently filed a discrimination complaint with 

MSHA (Tr. 72, 73, Ex. C-5). He also took statements from com-· 

pany employees Chris Norskog, Alvin Boudreaux, Hildebrandt and 

Morrison (Tr. 75). The Norskog and Boudreaux statements were 

taken at the MSHA inspector's request (Tr. 78, Ex. C-16). Ramsey 

also heard the company had been cited for dust problems CTr. 76, 

Ex. c-12). 

After he was terminated Ramsey sought other employment. 

He sent 60 to 70 resumes to potential employers CTr. 81, 84, 

Ex. C-7, C-8). He has continued to seek employment in his field. 

In addition, he has held several jobs (Tr. 87-90). 

Respondent's Evidence 

CLIFFORD MORRISON, a person experienced in construction, was 

laid off together with the entire crew at the Colosseum site when 

the crushing job was finished (Tr. 153, 154). 

Morrison, as supervisor, reclassified and gave Ramsey a 

raise CTr. 156). He felt the raise was deserved as Ramsey was 

doing a good job in the short period of time he was there 

CTr. 157, 158). After the raise Ramsey was receiving the money 

crusher operators were worth (Tr. 158). However, there were a 

few unsatisfactory incidents involving Ramsey. [These incidents 

did not cause Ramsey to be discharged.] 

1590 
On August 12, 1987, Ramsey and Morrison had· a disagreement 

over crusher dust and safety procedures for the crusher (Tr. 158, 

159, Ex. C-4). 

On this occasion, about ten or fifteen minutes bef or-e the 

end of the shift the miners were standing in front of the parts 

trailer. At that point Morrison asked Ramsey to shut off the 

water so they could clean the screens~/ (Tr. 160). 

Ramsey turned the water off and then he turned off the 

crusher. Morrison went up into the tower and asked him why he 

had taken that action. There was no reason to shut off the 

crusher because Morrison was standing right below him. Morrison 

could see Ramsey and part of the plant. Before he signaled the 

shutoff of the water Morrison signaled him to assure the safety 

of the other workers. All of the workers were safe and they were 

standing next to Morrison or they were in the parts van. Ramsey 

could have seen them. Morrison agrees that Ramsey could have 

shut down if he hadn't seen the employees. This is standard 

procedure (Tr. 160). 

In the tower, when Morrison asked Ramsey why he had shut 

down, Ramsey said he couldn't see. Morrison replied that there 

was only a little material left to run. It would only take a 

minute. Morrison then tore off the daily log and left (Tr. 161, 

162). 

Morrison finished his paper work and took it to the office. 

When he returned Ramsey· handed him his hard hat and flashlight. 

He then said he quit. Morrison asked if he was going to quit 

over a little bit of dust. Ramsey said, "Yes, if it continues." 

Morrison walked away. The disagreement involved turning the 

water on or off (Tr. 162, 164). Ramsey never argued about 

turning the crusher on or off (Tr·~ 162). Ramsey had the authority to turn it on or off if there was a safety hazard. This was 

a standard procedure (Tr. 163). Ramsey requested no further 

consultations over the issues. Morrison was laid off a month 

later. Ramsey didn't contact him during that period (Tr. 163, 

164). 

~/ The screens are cleaned by letting the material hit them 

without the water being turned on. The material chips off the 

buildup of mud. By proceeding in this manner the miners 

do not have to crawl up inside the equipment to remove the 

accumulations by hand (Tr. 160). 

1591 
When Morrison hired workers for the crusher crew, none of 

them were told that they would have long-term employment. Such 

employment is not standard in the industry. When crushing is 

complete the crew is laid off. Ramsey wasn't given any reason to 

believe he'd be kept on when the project was completed (Tr. 164). 

Morrison told Ramsey to shut the water off -- not the 

crusher. He was also standing where he could view the dust once 

the water was shut off. Morrison could see every bit of the 

crusher. Visibility was not reduced to the extent that it was 

dangerous. Morrison could also see Ramsey in the control tower. 

He could have signaled him in the tower, even after the water was 

shut off, had he wanted to do so (Tr. 165, 166). 

Morrison agrees that Ramsey was performing adequately as an 

operator when Morrison suggested he receive a raise (Tr. 174). 

On Ramsey's separation slip Morrison wrote "quit" (Tr. 176, 

186, Ex. C-4, R-1). 

DICK NASH, ICC's personnel manager, identified certain 

records and testified the crusher crew was laid off September 25, 

1986 (Tr. 200-202, Ex. R-1). He further testified concerning the 

401Ck) plan involving waged employees as compared to salaried 

employees (Tr. 211, 212, Ex. C-1, R-1). [Discussed under 

damages, infra]. 

ORVILLE HILDEBRANDT, ICC's project manager, worked on the 

Colosseum job (Tr. 244). 

When he hired Ramsey he gave him a safety tour which is 

standard for all new employees. On one occasion while running 

the loader, ICC supervisor Brown gave Ramsey some instructions. 

Ramsey felt he was abusing the equipment and he might quit 

sometime over that issue. But he still wanted to work some other 

area of the project. Hildebrant believed that Ramsey felt he 

was probably more qualified than the foreman. As a result 

Hildebrandt felt [Ramsey] resented the foreman giving him 

directions (Tr. 247, 248). 

The morning after the August 12th incident Hildebrant 

learned of the conflict between Ramsey and Morrison. Ramsey said 

he'd quit but he would like to remain in another position on the 

project (Tr. 248). Ramsey said he'd return to the crusher if 

Hildebrant would authorize him to have control (Tr. 248). 

1592 
Hildebrant and Morrison talked. Morrison told Hildebrant 

that Ramsey had quit over the dust and who was turning off 

the water and such (Tr. 249). Hildebrant did return Ramsey's 

call and he decided not to rehire him because of two incidents. These two incidents involved the loader and the crusher 

(Tr. 249). ~/ 

On September 8, 1987, an MSHA investigator came to the 

plant and issued citations due to crusher dust ~/ CTr. 251, 252, 

Ex. C-12). Hildebrant, in abating the citation, wrote a letter 

to control the dust from the crusher CTr. 252, Ex. C-15). 

Hildebrant also testified concerning the company's 401Ck) 

plan (Tr. 254). 

Superintendant Hildebrant also indicated that Ramsey 

received a raisei further, he was transferred to a different 

position at a later date (Tr. 259). 

As a crusher operator a part of Ramsey's duties relate to 

when to shut the water and the machine on and off (Tr. 259). 

The crusher operator could shut down the machinery if he didn't 

know where the workers were located. In an emergency he could 

also shut the water on or off CTr. 260). 

When Ramsey called Hildebrandt he told him he had quit 

because he had a disagreement with Morrison over the way the 

water should be shut off or how the dust should be controlled 

(Tr. 278). He also stated he would like to work in some other 

area of the project CTr. 278, 279). In addition, he would go 

back to the same position if Hildebrant would give him control 

of the crusher (Tr. 279). 

11 The loader incident was when supervisor Brown directed Ramsey 

as to how the loader should be operated. Ramsey complained to 

Hildebrandt and stated this particular use was an abuse of the 

loader teeth (Tr. 246, 247). The crusher incident was the 

cqnflict with Morrison over the pressure dust. ~ 

ii The MSHA inspection on September 8, 1987, is entitled to zero 

weight because it is not shown how the conditions of that date 

related to the conditions on the morning of August 12, 1987. 

1593 
The Colosseum mine is still operating. Further, miners 

are using heavy equipment used in the production of gold 

(Tr. 280, 289). 

BEN BROWN was an ICC night shift foreman in the summer of 

1987. He has since been laid off (Tr. 283, 284). 

Brown considered Ramsey's skill as a loader operator to be 

below average. He further considered Ramsey to be a poor dozer 

operator (Tr. 285). 

Brown and Ramsey were involved in two conflicts. These 

didn't cause Ramsey to be terminated. One involved Ramsey 

running the loader at half throttle or lower. The other involved loading with the front of the bucket rather than the heel. 

He considered that Ramsey's ability to take orders was poor 

(Tr. 286, 289). 

Brown admits Ramsey received a raise after two conflicts 

between them. However, it was Morrison and not Brown who 

recommended the raise (Tr. 288, 289). 

CHRIS NORSKOG testified by deposition. Norskog has spent 

15 years working around rock crushers (Dep. 5, 6). 

Norskog had to show Ramsey some basic matters concerning 

the rock crusher (Dep. 8). 

Norskog recalls an· argument between Ramsey and Morrison 

about whether to fire the crusher up again with or without water. 

Both men were angry (Dep. 8). Ramsey did not want to fire the 

crusher up. Morrison replied he was the boss and he'd fire the 

crusher up. Ramsey said he was going to quit (Dep. 8, 9). The 

two men didn't appear to be acting rationally (Dep. 9). Phillip 

Boudreaux heard less of the argument (Dep. 9, 10). 

There was a little more dust than usual when they shut the 

water off but it was not enough to be dangerous (Dep. 11). 

It was standard procedure to let the machine run without 

water. It would only take a short while to clean the screens. 

Ramsey hadn't complained about it prior to that time (Dep. 11). 

There aFe other options besides running the equipment without 

water but Norskog didn't know if Ramsey knew about them CDep. 12, 

13). 

1594 
Within a day or two later Norskog refused Ramsey's request 

to sign a statement that it was unsafe to work in the area. 

However, Boudreaux signed the document. Norskog later gave a 

statement to an MSHA inspector CDep. 15). 

Discussion on the Merits 

The credible evidence adduced by complainant establishes 

that Ramsey was engaged in a protected activity when he complained to his supervisor Morrison about the dusty conditions 

that precluded him from seeing the workers who were in close 

proximity to the crusher. He was thus constructively discharged 

since he has shown that ICC created or maintained conditions so 

intolerable that a reasonable miner would have felt compelled to 

resign. One act of discrimination occurred at the time of the 

constructive discharge. A second act of discrimination occurred 

when the company refused to rehire Ramsey. 

ICC contends that Ramsey was not engaged in a protected 

activity but merely disagreed with his supervisor about the 

crusher operation. 

In support of its view, ICC points to several facets of the 

case. Specifically, in his complaint, it is asserted that Ramsey 

never indicated the dispute with Morrison involved anything other 

than turning the crusher on or off. (Ramsey could do this any 

time a hazard developed.) Further in support of ICC's position 

is found in MSHA's interview with Morrison (Ex. C-10, p.4-6). 

I reject ICC's arguments. I question whether any discrepancy exists but the facts here involve a mix of what would 

occur when the crusher operator turned off the crusher and/or the 

water. The critical point is that Ramsey's complaint was clearly 

safety related. 

Supporting Ramsey's testimony is his statement to MSHA. The 

statement reads in part as follows: 

And on the morning of the 13th which is a 

continuance of, you know, the same shift, we work 

from 5 in the evening 'til 3 in the morning. It 

was approximately 2:30 and Cliff, the foreman, 

walked down to, this one area is kinda designated 

as a signal area for the men down below where I 

can see them. He walked into that area and signaled me to shut the water off to the whole spread 

1595 
and I hesitated. He very abruptly motioned again. 

So I shut it off and within a matter of two to three 

minutes the visibility was just, I mean absolutely 

zero. I mean I couldn't, I couldn't see the window 

that I was looking out of let alone monitor the 

people, the equipment or anything else so I just 

shut the feeder and the jaws down which feeds 

material to the whole area and the minute that I 

felt that there was nothing else through it, just 

be noise, I shut the whole spread down and about 

seven to ten minutes later when everything cleared 

enough where a person could see to walk ten feet, 

Cliff come boiling up the steps. I mean he was 

hostile, attitude and asked me what the hell I 

was doing shutting the spread down. I said, 

"Well, if I can't see, I'm damn sure not going 

to run anything." I said "Well you know, when 

we shut that water off, I can't see nothing." 

And he's very, very verbally, I mean loud. 

"I've run one of these G-D things for so many 

years. I'll tell you when to shut it down." 

And I says "Hey, you know, if I'm operating 

the damn thing, I've got to have the option 

whenever I can't see and I can't see the men 

down there to knock her off. You know, until 

we can safety operate." And he went boiling 

down the steps so I just went ahead and run the 

belts clear, what was on them, you know, so you 

don't leave them for the next shift and then 

I went downstairs and I confronted him again. 

I says "Cliff, you know, under those conditions," 

I says "we can't operate." "God damn it," he 

says, "I'll tell you when to run and when not 

to run." I says "Hey," I said, "if you're going 

to be like that," I said "I can't work for you." 

I said "I have got to have the option to be 

able to shut the damn thing down when we can't 

see. The first thing you told me when you 

hired me was that even if a man has got to go 

to the john, that he's got to check out with 

me because I've got to be able to see him and 

know where he's at. And now you tell me that 

you're going to tell me when to shut it down 

and half the time you're not even here." I 

says "Hey," I said "I'm not working for you 

under those conditions." He said "Are you 

1596 
quitting?" I said "Under those conditions, 

you're damn right." And it was the end of the 

shift then so we went ahead and finished our 

normal 3 o'clock clean-up and I got in the 

truck with him, drove up to the impound area 

more or less, and we got in the buses and 

everything and went downhill. 

(Exhibit R-2, pages 3, 4) 

It necessarily follows that I disagree with ICC's view that 

the argument over when and how the screens are cleared is not a 

protected activity. For the reasons s~ated I find that Ramsey's 

complaints were safety related. 

ICC further contends that Ramsey's refusal to work was not 

based on good faith belief that a hazard existed. This is so 

because Ramsey had operated the crusher for five weeks and it was 

standard procedure to turn the water off so the screens could be 

cleaned. Further, Ramsey's failure to voice his concerns for the 

safety of fellow employees (before August 13th) does not suppor't 

his position that a hazard existed. 

I disagree. The evidencing hearing focused on the events 

of August 12th, but in any event ICC's position lacks merit. 

Ramsey's testimony is unrebutted that if an employee cannot be 

seen on the site, the crusher operator automatically shuts down 

"real quick" (Tr. 48). Further, there have been times where 

Ramsey shut down the equipment without signaling (Tr. 49). 

In addition, on the issue of good faith, Ramsey's testimony is further supported by Morrison, Hildebrandt and Norskog. 

Morrison, after the confrontation, asked Ramsey if he was going 

"to quit over a little bit of dust" (Tr. 162, 164). Morrison 

also told Hildebrant that Ramsey quit over the dust and an 

argument as to who would be turning off the water (Tr. 249). 

See also separation slip (Ex. C-4). The slip, signed by 

Morrison, states, "We had a disagreement on the way to run the 

crusher." Further, Norskog recalled an angry argument between 

Ramsey and Morrison about. whether to fire up the crusher again 

with or without water. Ramsey did not want to fire the crusher 

up. Morrison replied he was the boss and he'd fire the crusher 

up. Ramsey then said he was going to quit CDep. pages 8, 9). 

1597 
The above evidence causes me to conclude that Ramsey acted 

in good faith and he did not invent a safety complaint on August 

13th. 

ICC further argues that a difference of opinion over a 

proper way to perform a task are not a protected work refusal 

citing Secretary on behalf of Cameron v. Consolidation Coal Co., 

7 FMSHRC 319 (1985). 

The evidence shows more than a difference of opinion. It 

shows concern by Ramsey for the safety of miners at the worksite. 

In the instant case the nexus is clear between the complaint and 

possible injury to workers. 

ICC asserts that Ramsey's work refusal, and his voluntary 

"quit", occurred after the end of the shift when the crusher had 

been shut down and the belts cleaned. 

I agree that it is uncontroverted that Ramsey quit at the 

end of the shift. However, Ramsey's action was a constructive 

discharge as discussed infra. It is also apparent.why Ramsey 

quit and the timing was closely related to the protected 

activity. 

Cameron is not inopposite this view. 

It is also ICC's view that Ramsey failed to communicate any 

hazard to ICC. 

The thrust of ICC ' . .s argument is that Ramsey and Morrison did 

not communicate, rather they were "angry," "not listening to each 

other" and "excited." Further, when they rode down the hill it 

is undisputed that the two men did not talk. 

It is apparent from the record here that the words spoken 

encompassed and communicated the safety hazard. Further, by 

their very nature safety complaints often revolve in a heated 

and argumentative manner. Compare, Secretary on behalf of John 

Gabossi v. Western Fuels - Utah, Inc., 9 FMSHRC 1481 (1987). 

ICC also states that even if Ramsey was engaged in a 

protected activity no adverse action was taken against him in 

retaliation for the complaint, citing Fasula, supra~ Thurman v. 

Queen Anne Coal Co. et al, 10 FMSHRC 131 (1988) and Edwards v. 

Aaron Mining Co., 5 FMSHRC 2035 (1983). Further, a single act of 

alleged discrimination standing alone would not constitute an 

aggravated situation which would force a reasonable person to 

resign, citing Simpson v. FMSHRC, 842 F.2d 453 CD.C. Cir. 1988). 

1598 
In considering the doctrine of constructive discharge, 

different appellate courts have different views. For example, 

the Court of Appeals for the Fourth Circuit requires proof of 

the employer's specific intent to force an employee to le~ve ~/. 

Bristow v. Daily Press, Inc., 770 F.2d 1251 (1985). The Commission adhered to this position in Robert Simpson v. Kenta 

Energy, Inc., 8 FMSHRC 1034 (1986). 

On the other hand, the Commission's decision in Simpson 

was specifically reversed by the U.S. Court of Appeals for the 

District of Columbia, 842 F.2d. 453. The Court reversed the 

Commission and held that the proper application of the law involves an objective approach to constructive discharge. In 

short, the intent of an operator to cause a miner to quit is 

not relevant. 

The Court summarizes its view that whether conditions are 

so intolerable that a reasonable person would feel compelled to 

resign is a question for the trier of fact, 842 F.2d at 463. 

The Commission on May 11, 1989, adopted the view of the 

Court of Appeals. I am constrained by the Commission's adoption 

of the Court of Appeals decision in Simpson. 

In the instant case two acts of discrimination occurred. 

Ramsey was constructively discharged when he quit at the end of 

the shift on August 13th. Further, he was discriminated against 

(as was Robert Simpson) __ when the company refused to rehire him. 

Whether the company was justified in refusing to rehire 

Ramsey requires a review of conflicting evidence. 

Ramsey's evidence shows he has had extensive experience in 

operating heavy equipment. This appears from the testimony of 

his background and the resumes he has forwarded to potential 

employers. 

~/ The record in this case is devoid of any facts indicating 

ICC intended to force Ramsey to quit on August' 13th. 

1599 
On the other hand, the operator's evidence indicates 

Ram·sey' s skill as a loader operator was below average to poor. 

Further, he was inexperienced and not competent as a crusher 

operator. In addition, it was believed Ramsey didn't like to 

take orders because he felt he was more experienced than the 

foreman. I do not find ICC's evidence to be credible. If 

Ramsey was such a poor worker it seems incredible that.he would 

receive a pay increase after a short time on the job. Compare: 

Secretary on behalf of Patricia Anderson v. Stafford Construction 

Co., 732 F.2d 954 (D.C. Cir. 1984).In any event superintendent 

Hildebrant identified two reasons not to rehire. One reason 

involved Ramsey's claim that the instructions from Brown required 

him to abuse the loader teeth Can unprotected activity since it 

did not involve safety). The additional reason was the crusher 

incident of Ramsey and Morrison Ca protected activity). 

In sum, ICC discriminated against Ramsey in refusing to 

rehire him. 

ICC also states that Ramsey failed to attempt_ to resolve the 

conflict. It argues such failure constitutes a bar to recovery. 

In support of its position ICC cites Bourgue v. Powell 

Electrical Manufacturing Co., 617 F.2d 61 (5th Cir., 1980) and 

Alicea Rosado v. Garcia Santiago, et al, 562 F.2d 114 Clst Cir. 

1977). 

Specifically ICC contends that Ramsey had two honest alternatives open to him. He could have simply refused to work until 

he discussed the matter with Morrison's superior, or he could 

have made sure all the other employees were away from the crusher 

for the final few minutes required to clean the screens. 

The position urged by ICC would invoke a new doctrine not 

presently contemplated under the Mine Act. Further, the cases 

relied on by ICC do not arise under the Mine Act. 

For the foregoing reasons the complaint of discrimination 

filed herein is sustained. 

REINSTATEMENT 

Complainant herein sought to be reinstated (Tr. 22). 

If charges of discrimination are sustained then Section 

105(c)(3) authorizes reinstatement of a miner to his former 

position with backpay and interest. 

1600 
The evidence here is uncontroverted in several respects. 

On behalf of ICC the evidence shows that none of the workers 

were given any indication that their job was long term. Such 

long term employment is not standard in the industry. The 

evidence also shows that the work shift was in fact shut down in 

its entirety about a month after the Ramsey/Morrison incident. 

On behalf of Ramsey the evidence is uncontroverted that the 

Colosseum Mine is still operating. Further, the operator is 

presently using heavy equipment in the production of gold. 

Discussion 

If a miner has been discriminated against then he should be 

restored, as nearly as possible, to his position as if the discrimination had not occurred. 

Accordingly, an order of reinstatement to his former 

position as a crusher operator at the Colosseum Mine is appropriate. If the position of crusher operator is no·longer available (an uncontroverted fact in the record) then complainant is .. to be reinstated to a comparable position without any loss of 

pay or benefits. Kenneth A. Wiggins v. Eastern Associated Coal 

Corporation, 7 FMSHRC 1766, 1773 (1985). 

Damages 

The Act provides that a miner should be reinstated to his 

former position with backpay and interest. 

Ramsey was constructively discharged on August 13, 1987. 

He is entitled to backpay with interest from that date until the 

date of his reinstatement. 

Accordingly, the parties are directed, within 20 days, to 

agree on the wage loss incurred by complainant. 

In calculating the interest the parties are directed to make 

their calculations on the bases of the attached memoranda from 

the Commission's Executive Director dated January 10, 1989, and 

Apr i 1 6 , 19 8 9. 

Further Damages 

A further credibility issue in this case concerns whether 

Ramsey is entitled to certain retirement benefits under the 

company's 40l(k) retirement plan. 

1601 
In connection with this issue Ramsey testified that if you 

are with the company 30 days, an employee can contribute up to 

15 percent of your paycheck. In turn, ICC will match the employee contribution up to the legal limit allowed by law. Ramsey 

asserts he contributed $553.50 to this plan, as shown by his 

check (Tr. 91-93, Ex. C-6). Witness Wallis Hack, a certified 

public accountant, testified as to the benefits due Ramsey under 

the company plan CTr. 127-149, Ex. C-1). 

I credit the contrary evidence adduced by ICC's personnel 

manager DICK NASH. The witness, familiar with the plan, indicates there is a difference between the 401Ck> plan for waged 

employees (such as Ramsey) as compared to salaried employees 

(Tr. 211). Salaried employees receive a matching contribution up 

to 50 percent of the first 4 percent of the base salary of that 

employee (Tr. 212). On the other hand, waged employees receive 

75 percent per hour for every hour of straight time and overtime 

the employees work (Tr. 212). 

Ramsey was a waged employee. The ICC pay stub for Ramsey 

(for 8/14/87) shows a figure of $553.50 (Ex. C-6). That number 

is not related to the 40l(k) plan but is ICC's matching con- .. 

tribution under FICA, social security tax CTr. 215-220). Hourly 

employees do not receive a matching contribution. However, 

Ramsey received payment for the 590.5 hours he worked at 75 cents 

per hour or $442.88. That amount was contributed by ICC to 

Ramsey's personal accounts. 

Discussion 

Ramsey is entitled to his lost pay until reinstated. 

Further, the pay would include ICC's 75 cent per hour contribution for each hour worked by Ramsey. 

I credit ICC's evidence because a personnel manager would 

know the benefits the company provides its employees. ICC's 

position is also supported on this issue by the testimony of 

Hildebrandt CTr. 254). 

In addition, Ramsey, as a waged employee of less than 

14 weeks, would not have the requisite expertise to know if he 

could participate in ICC's 401Ck) plan. 

1602 
ORDER 

Based on the foregoing findings of fact and conclusions of 

law, IT IS ORDERED: 

1. Respondent reinstate complainant to his position as a 

crusher operator, or if the position of crusher operator ls 

unavailable, a comparable position. 

2. Respondent shall pay to complainant backpay from 

August 13, 1987, until complainant is reinstated. Said backpay 

shall bear interest thereon in accordance with the memoranda 

attached to this order. 

3. Complainant shall file a statement, within 20 days of 

the date of this order, showing the amount he claims as backpay 

and interest under paragraph 2 above. Complainant, within said 

20 days, shall also file a statement showing the amount he claims 

for attorneys' fees and necessary legal expenses. 

The foregoing statement shall be served on respondent who 

shall have 20 days from the date of service to reply thereto. 

4. This decision is not final until a further order is 

issued with respect to the amount of complainant's entitlement 

to backpay, attorneys' fees and litigation expenses. 

5. If the parties cannot agree a hearing on the issue of 

attorneys' fees will proceed as heretofore scheduled on October 

24, 1989, in Las Vegas. Nevada. 

Law Judge 

Distribution: 

Nathaniel J. Reed, Esq., Norman J. Reed, Esq., 1405 South 

M~ryland Parkway, Las Vegas, NV 89104 (Certified Mail} 

William T. Murphy, Esq., Washington Corporations, 101 International Way, P.O. Box 8192, Missoula, MT 59807 (Certified 

Mail} 

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1603 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

August 9, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

. . Docket No. WEST 88-275-M 

A.C. No. 04-01937-05505 

v. . . 

. . 

. . Docket No. WEST 89-71-M 

A.C. No. 04-01937-05506 

SANGER ROCK & SAND, 

Respondent . . . . Sanger Pit and Mill 

ORDER 

The issue in the above cases is whether respondent, Sanger 

Rock & sand (Sanger>, is subject to MSHA's jurisdiction. 

As a threshold matter, Sanger asserts MSHA has not acquired 

jurisdiction over it for the reason that the federal government 

has failed to comply with Article I, Section 8, Clause 17 1/ 

of the United States Constitution. Specifically, it is argued 

that since the United States does not possess fee simple title 

to Sanger's property and since the State of California did not 

cede the property to the United States then the case should be 

dismissed for lack of "territorial jurisdiction." 

For the purpose of this ruling I assume the federal government does not own this property and I further assume the property 

has· not been ceded to the federal government by the State of 

California. But I nevertheless conclude that Sanger's arguments 

are misdirected. The ~ited portion of the Constitution relied on 

1/ The cited portion of the Constitution provides that Congress 

shall have the right: 

"To exercise exclusive Legislation in 

all Cases whatsoever, over such District 

(not exceeding ten Miles square> as may, 

by Cession of particular States, and the 

Acceptance of Congress, become the Seat 

of the Government of the United States, 

and to exercise like Authority over all 

Places purchased by the Consent of the 

Legislature of the State in which the 

Same shall be, for the Erection of Forts, 

Magazines, Arsenals, dock-Yards, and other 

needful Buildings; ••• " 

1604 
by Sanger relates to the District of Columbia, the seat of 

government of the United States. Its plain words do not constitute a grant of power to the Congress to. regulate commerce 

nor is it a restriction on the power of Congress to regulate 

commerce. 

Specifically, this section of the Constitution relates 

to the Congress having exclusive authority over the District of 

Columbia, (the seat of government), as well as all other places 

purchased by the federal government. 

In support of its position Sanger relies upon and cites 

United States v. Benson, 495 F.2d 475 (1974). 

The Benson case is not controlling. In Benson the defendants were convicted of robbery that was.committed within the 

territorial jurisdiction of the United States. The territorial 

jurisdiction of the United States in the case was Fort Rucker, 

Alabama, a military installation. The federal military code, 

by virtue of Clause 17, was exclusive in this area which was a 

federal military reservation. 

Contrary to Sanger's views, the grant o{ authority for 

Congress to regulate mines rests in Article 1, Section 8, 

Clause 3 2/ of the Constitution, the "Commerce Clause." 

When Congress enacted the Mine Act it considered and defined 

commerce as it related to mining. Specifically, Section 4 of the 

Act provides: 

Each coal or other mine, the products of 

which enter commerce, or the operations or 

products of which affect commerce, and 

each operator of such mine and every miner 

in such mine shall be subject to the provisions of this Act. 

2/ The cited portion of the Constitution provides that Congress 

shall have the right 

"To regulate Commerce with foreign Nations 

and among the several States, and with the 

Indian Tribes." 

1605 
as: 

Further, "Commerce" is defined in section 3(h) of the Act 

Trade, traffic, commerce, transportation 

or communication among the several states, 

or between a place in a state and any place 

outside thereof, or within the District of 

Columbia, or a possession of the United 

States, or between points within the same 

state but through a point outside thereof." 

The use of the phrase "which affect commerce" in Section 4 

of the Act, indicates the intent of Congress to exercise the full 

reach of its constitutional authority under the commerce clause. 

See: Brennan v. OSHA, 492 F.2d 1027 C2nd Cir. 1974)1 U.S. v. Dye 

Construction Co., 510 F.2d 78 (10th Cir. 1975)1 Polish National 

Alliance v. NLRB, 332 U.S. 643 (1977); Godwin v. OSHRC, 540 F.2d 

1013 C9th cir:-1976>. 

In Perez v. United States, 402 U.S. 146 (1971), it was 

held that Congress may make a finding as to what activity affects 

interstate commerce, and by doing so it obviates the necessity 

for demonstrating jurisdiction under the commerce clause in 

individual cases. Thus, it is not necessary to prove that any 

particular intrastate activity affects commerce if the activity 

is included in a class of activities which Congress intended 

to regulate because that class affects commerce. 

In short, mining is among those classes of activities 

which are regulated under the Commerce Clause of the United 

States Constitution and thus is among those classes which are 

subject to the broadest reaches of Federal regulation because 

the activities affect interstate commerce. Marshall v. Kraynak, 

457 F. Supp. 907, (W.D. Pa. 1978), aff'd, 604 F.2d 231 (3d Cir. 

1979), cert. denied, 444 U.S. 1014 (1980). Further, the legislative history of the Act as well as court decisions, encourage 

a liberal reading of the definition of a mine found in the Act 

in order to achieve the Act's purpose of protecting the safety 

of miners. Westmoreland Coal Company v. Federal Mine Safety and 

Health Review Commission, 606 F.2d 417 (4th Cir. 1979). See 

also: Godwin v. Occupational Safety and Health Review comiii'ISsion, 

supra, where the court held that unsafe working conditions of one 

operation, even if in initial and preparatory stages, influences 

all other operations similarly situated, and consequently affect 

interstate commerce. 

1606 
The courts have consistently held that m1n1ng activities 

which may be conducted affect commerce sufficiently to subject 

the mines to federal control. See: Marshall v. Kilgore, 478 F. 

Supp. 4 (E.D. Tenn. 1979)1 Secretary of the Interior v. Shingara, 

418 F. Supp. 693 (M.D. Pa. 1976)1 Marshall v. Bosack, 463 F. 

Supp. 800, 801 (E.D. Pa. 1978). Likewise, Commission judges 

have held that intrastate mining activities are covered by the 

Act because they affect interstate commerce. See: Secretary of 

Labor v. Rockite Gravel Company, 2 FMSHRC 3543 (December 1980): 

Secretary of Labor v. Klippstein and Pickett, 5 FMSHRC 1424 

(August 1983)1 Secretary of Labor v. Haviland Brothers Coal 

Company, 3 FMSHRC 1574 (June 1981)1 Secretary of Labor v. Mellott 

Trucking Company, 10 FMSHRC 409 (March 1988). 

In· a decision involving the same parties, Commission Judge 

August· F. Cetti ruled against Sanger's "territorial jurisdictional argument." Sanger Rock & Sand, 11 FMSHRC 403 (March 1989). 

Sanger also states that the State of California has its own 

laws and regulations that protect the safety and health of its 

people. 

This argument has been raised in a number of cases. Commission judges have consistently held that state and federal 

OSHA statutes do not preempt the 1977 Mine Act. See: BrubakerMann, Inc., 2 FMSHRC 227 (January 1980>1 Valley RO'Ck and Sand 

Corporation, 4 FMSHRC 113 (January 1982)1 Black River Sand and 

Gravel, Inc., 4 FMSHRC 743 (April 1982>1 San Juan Cement Company, 

Inc., 2 FMSHRC 2602 (September 1980) 1 Sierra Aggregate Co., 

9 FMSHRC 426 (March 1987). I agree with these holdings, and I 

also take note of the fact that section 506 of the 1977 Mine Act 

permits concurrent state and federal regulation, and that under 

the federal supremacy doctrine, a state statute is void to the· 

extent that it conflicts with a valid federal statute. Dixie Lee 

Ray v. Atlantic· Richfield Company, 435 U.S. 151, 55 L. Ed. 2d 179 

(1978>1 Bradley v. Belva Coal Company, 4 FMSHRC 982, 986 (June 

1982) •. 

In WEST 89-71-M Sanger has also moved to dismiss the case on 

the grounds that MSHA has lost or misplaced records. 

It is not possible at this time to identify what records, 

if any, may be lost. Further, any evidence on that issue will 

relate to the merits of the cases. 

For the foregoing reasons I conclude that the Secretary 

of Labor, on behalf of MSHA, has jurisdiction in this matter. 

Further, Sanger, as a sand and gravel operation, is generally 

subject to the Secretary's authority by virtue of MSHA. 

1607 
For the foregoing reasons the following order is appropriate: 

ORDER 

1. In WEST 88-275-M: -Petitioner's motion for a preliminary finding that respondent is subject to the jurisdiction of 

the Secretary under the authority of the Federal Mine Safety and 

Health Act is granted. 

2. In WEST 89-71-M·: :Respondent's motion to dismiss on the 

meri£i and for a lack of territorial jurisdiction are denied. 

·-3. These cases will be shortly ·set ·for a hearing on the 

merits. 

Judge 

Distribution: 

Susanne Lewald, ·Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson Street, P.O. Box 3495, San Francisco, CA 

94119-3495 

J.F. Baun, President, Sanger Rock and Sand, 17125 E. Kings Canyon 

Road, Sanger, CA 93657 

/ot 

1608 ~u.s.covtRNlll£NT PRINTING orr1ct.1989-241-155104759